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Parents must not shirk responsibilities

  • rubytuesday
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30 Aug 12 #352860 by rubytuesday
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Children Act places ''primary responsibility for delivering a good outcome'' on parents not courts
It is not acceptable for separated parents to “shirk” their responsibilities on contact with former partners and say no to “reasonable strategies” to improve the situation, appeal judges have said.
In an unanimous judgment today overturning a ban on contact between two daughters and their estranged father, Lord Justice McFarlane said: “Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be.”
McFarlane LJ said the Children Act 1989 “places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency”.
He went on: “Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent.”
Delivering judgment in Re W(Children) [2012] EWCA Civ 999, Lord Justice McFarlane said whether or not a parent had parental responsibility was not just a matter of the “ticking of a box on a form” and was “a significant matter of status” as between parent and child and between each of the parents.
“By stressing the ‘responsibility’ which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case.”
The case involved a couple who lived together for six years, bought a property together and had two children.
The court heard that the mother left the family home without warning the father, taking the two young girls with her. She made ten allegations of domestic violence, but only one of them was upheld by the court – that he spat at her.
The mother later made allegations that the paternal grandfather had touched the eldest daughter inappropriately. After interviewing her, the police decided to take no action.
In 2012, a judge at Swindon county court made a “no contact” order. McFarlane LJ said that such a ruling was not open to her, because much of the mother’s evidence was “inconsistent and confused”.
He said that the mother’s inability to meet the children’s needs by supporting contact was the “primary, if not the sole”, reason on which she based her decision to refuse direct contact.
McFarlane LJ allowed the father’s appeal. Lord Justices Rix and Tomlinson agreed.

From the SJ - link is here

  • MrsMathsisfun
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30 Aug 12 #352864 by MrsMathsisfun
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An I reading this correctly, so originally a judge said because the mother wasn''t willing to support contact no contact should take place?

but this has been over ruled?

Am I reading the original order correctly?

  • rubytuesday
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30 Aug 12 #352865 by rubytuesday
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That about sums it up, Mathsisfun.

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30 Aug 12 #352867 by MrsMathsisfun
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Glad common sense prevailed in the end, but its situation like this where nothing is done to stop the PWC acting in this manner in the first place that causes the conflicts to continue.

We really do need to get to a place whereby it really is the interest of the child that is served not the interest of the parent.

How we get there I am not just not sure. Better education in school. More awareness of site like wiki.

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30 Aug 12 #352869 by MrsMathsisfun
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Also what is in place to stop the PWC still continuing to block contact?

A judge can say its not the place of the courts but if the parents are not co operating what happens then?

  • Fiona
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30 Aug 12 #352879 by Fiona
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The full postscript of the judgment is worth a read;

"Having determined the issues in this appeal, I return briefly to the concept of parental responsibility and the potential for it to be given greater prominence in the resolution of private law disputes as to the arrangements for the welfare of children.

The observations that I now make are part of a wider context in which the family courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over the contact which is most neatly encapsulated in the words of Black LJ in T v T [2010] EWCA Civ 1366:

"[The parents] must put aside their differences ... if the adults do not manage to resolve things by communicating with each other, the children inevitably suffer and the adults may also pay the price when the children are old enough to be aware of what has been going on. ... It is a tremendous privilege to be involved in bringing up a child. Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in that way is likely to remain with the children into their own adult lives."

In describing the statutory legal context within which decisions as to the private law arrangements for a child are to be made, I have stressed that it is the parents, rather than the court or more generally the state, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires. I have stressed that, along with the rights, powers and authority of a parent, come duties and responsibilities which must be discharged in a manner which respects similarly held rights, powers, duties and responsibilities of the other parent where parental responsibility is shared.

In all aspects of life, whilst some duties and responsibilities may be a pleasure to discharge, others may well be unwelcome and a burden. Whilst parenting in many respects brings joy, even in families where life is comparatively harmonious, the responsibility of being a parent can be tough. Where parents separate the burden for each and every member of the family group can be, and probably will be, heavy. It is not easy, indeed it is tough, to be a single parent with the care of a child. Equally, it is tough to be the parent of a child for whom you no longer have the day to day care and with whom you no longer enjoy the ordinary stuff of everyday life because you only spend limited time with your child. Where all contact between a parent and a child is prevented, the burden on that parent will be of the highest order. Equally, for the parent who has the primary care of a child, to send that child off to spend time with the other parent may, in some cases, be itself a significant burden; it may, to use modern parlance, be "a very big ask". Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.

Where parental responsibility is shared by a child''s parents, the statute is plain (CA 1989, s 3) that each of those parents, and both of them, share ''duties'' and ''responsibilities'' in relation to the child, as well as ''rights … powers … and authority''. Where all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency.

Where there are significant difficulties in the way of establishing safe and beneficial contact, the parents share the primary responsibility of addressing those difficulties so that, in time, and maybe with outside help, the child can benefit from being in a full relationship with each parent. In the present case the emotional and psychological make up of the two parents, both separately and in combination, prevented easy contact taking place. [The child psychologist] advised that both parents needed to access support or therapy to enable them to approach matters in a different way. F engaged in the necessary work, but M declined to. It may have been in F''s interests to do so, and M may have taken a contrary view; be that as it may, the only interests that either parent should have had in mind were those of each of their two children.

Parents, both those who have primary care and those who seek to spend time with their child, have a responsibility to do their best to meet their child''s needs in relation to the provision of contact, just as they do in every other regard. It is not, at face value, acceptable for a parent to shirk that responsibility and simply to say ''no'' to reasonable strategies designed to improve the situation in this regard.

The observations that I have made will be, I suspect, very familiar thoughts to family judges, lawyers, mediators and others. My intention in setting them out in this judgment is to give them a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.

Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents. By stressing the ''responsibility'' which is so clearly given prominence in CA 1989, s 3 and the likely circumstance that that responsibility is shared with the other parent, it is to be hoped that some parents may be encouraged more readily to engage with the difficulties that undoubtedly arise when contemplating post-separation contact than may have hitherto been the case."


www.bailii.org/ew/cases/EWCA/Civ/2012/999.html

  • u6c00
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30 Aug 12 #352885 by u6c00
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Maths, the full judgement is much more revealing than that summary suggests.

The father appears on the basis of the judgement to have been a difficult person to deal with in the beginning. It was noted that at one point he bombarded the court clerk with so many emails that they had to change email addresses. He also threatened the advocate, and though the DV allegations were not found to be proven, neither were they disproved.

Over the course of the case he spent significant time in counselling working on his forceful personality and lack of empathy for others.

The children were distressed by the idea of contact (the judge did not say that this was parental alienation) and required long term psychological ''work'' to enable contact to take place.

The mother did not say that she unwilling but rather that she was incapable, having broken down in tears during evidence.

Originally the court were presented with the following options:
1. Mother must engage with the psychiatrist and do the emotional work to enable contact to take place.
2. Paternal aunt could do the same.
3. No contact.

The court originally opted for no contact. The appeal found that the original judge had made a ruling that was wholly wrong. It''s been a while since I read it so my memory is a little hazy but I believe that the appeal judge ruled in favour of option 2.

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