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If you decide that you can no longer pursue an application for contact, you may only withdraw your application with the leave of the Court.

Rule 29.4 of the Family Procedure Rules 2010 requires you to produce a written request for the Court’s permission, setting out your reasons.  You can make the application orally in court if the other parties to the case are present.  This is perhaps the most humiliating thing a parent can be forced into doing.

Don’t imagine that this will necessarily be the end of it.  The other parent will almost certainly pursue you for child support through the CSA.  She may very well throw other applications at your retreating back such as ones for Occupation Orders, Non-Molestation Orders, Prohibited Steps Orders and Section 91 Orders.  The intention is to provoke a reaction and to keep you embroiled in the system.  Don’t give them that satisfaction.  Walk away.

In December 2003 Mr Justice Wall (formerly President of the Family Division) took the unusual step of giving judgement in open court in a case – Re O (A Child) [2003] EWHC 3031 (Fam) – in which a father had made an application, unopposed by the mother or CAFCASS legal which was representing the child, to withdraw his application for contact with his 12 year-old son, ‘O’.  The mother had obstructed and thwarted contact for more than five years despite a series of Court Orders, and the Court had progressively reduced the father’s contact, finally ordering complete cessation.  In despair the father produced a statement headed Enough is Enough.  In it he accused O’s mother of child abuse, perverting the course of justice, defamation of character and perjury and made similar complaints against her solicitors.  He accused CAFCASS Legal of ‘not encouraging shared parenting… and therefore of child abuse’.

Wall repeated two important points made in the Government’s 2002 consultation document, Making Contact Work; the first referred to delay:

The current procedures are too slow.  There is insufficient court time and a lack of resources: cases take too long to come to court.  There are substantial delays which are detrimental to children and their parents.

The second referred to the adversarial system itself,

The litigation process is adversarial and counter-productive.  It entrenches attitudes rather than encouraging them to modify.  It tends to focus on the arguments of the parents, not the needs of the child.  It puts particular pressure on the divided loyalties of children.

But Wall reserved his most censorious comments for the father, whose behaviour over the many years the case had run, he claimed, had become increasingly unreasonable, and he sought to use the case to make the point that fathers’ criticism of Family Court judges wasn’t justified and that family cases fail not because of the defects in the system, but because of poor parenting.

In the similar case of Re D [2004] EWHC 727 (Fam) the judge, Mr Justice Munby (now President of the Family Division), described the father as ‘consistent and sincere in his wish for contact’; ‘a balanced, fairly well-integrated man who could acknowledge both his own deficits as well as reflect on his past behaviour and consider errors, misjudgements and misdemeanours.  His view of others was equally balanced; he had no difficulty in adopting another’s perspective and could easily acknowledge alternative viewpoints and alternative hypotheses’.

Munby made no criticism of the father; nevertheless, the case followed a similar trajectory, the mother consistently obstructed contact, despite on one occasion being imprisoned, and the contact ordered, but never successfully enforced, dwindled away to nothing.  Finally, as in Re O, the father applied in despair to withdraw his application for contact.

The level of delay was similar: a penal notice was added to the order, a year later a suspended sentence was imposed, and after another year the mother was committed.  Munby’s judgement was given two years later.  All the allegations made by the mother against the father proved groundless.

Like Wall, Munby also made criticisms of the system,

Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system.  I can understand such a view.  The melancholy truth is that this case illustrates all too uncomfortably the failings of the system.  There is much wrong with our system and the time has come for us to recognise that fact and to face up to it honestly.

Munby identified eight fundamental failures made by the system in this case:

1. the ‘appalling’ and ‘scandalous’ delays of the court system;

2. the lack of judicial continuity – 43 hearings, 16 judges;

3. the huge bulk of evidence –  each new hearing necessitates new reports;

4. no fewer than 9 final hearings all adjourned by the courts;

5. the delay in the court making a finding with regard to the ‘groundless’ allegations;

6. the delay in appointing an expert;

7. the delay in appointing a Guardian;

8. ‘the characteristic judicial response when difficulties with contact emerged: reduce the amount of contact and replace unsupervised with supervised contact.’

Efficient enforcement of existing Court Orders is surely called for at the first sign of trouble.  A flabby judicial response sends a very damaging message to the defaulting parent, who is encouraged to believe that Court Orders can be ignored with impunity, and potentially also to the child.

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