This legal blog is part 1 of an exploration of a series of private children act case law, highlighting the complexities that can arise in private law proceedings.
As a children’s social worker or as a Cafcass officer, have you ever been told this is an easy case, it is only private law relating to contact issues. If so, what has been your reaction?
In my view, firstly, there is no such thing as an easy case. Secondly, even though private law proceedings are often considered to be less complex than public law care proceedings, experience has demonstrated that private law proceedings can be equally, if not at times even more challenging, as emphasised in the case below.
The family court can direct in private law proceedings, if deemed necessary for a Cafcass officer or children’s social services to provide a welfare report further to s.7 Children Act 1989 to assist the judge in making a decision in the child/children’s welfare.
Welfare reports- S. 7 Children Act 1989:
(1)A court considering any question with respect to a child under this Act may—
(a)ask [an officer of the Service] [or a Welsh family proceedings officer] ; or
(b)ask a local authority to arrange for—
(i)an officer of the authority; or…..
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.
This legal blog explores the case of Mother v Father [2024] EWFC 252 (B) (reported on 14 August 2024), are Children Act proceedings relating to disputes between the father and mother and the welfare of their children, aged 14,13,11 and 9 years old
The case also emphasised the importance the court places on children’s wishes and feelings as is required in the welfare checklist (s.1(3) Children Act 1989)
Facts of the case:
- Care proceedings
The children first became subject of Care Proceedings in 2015, when the children were removed from the mother’s care after being exposed to the mother’s volatile and abusive behaviour.
The care proceedings were concluded in 2016, with the court granting:
- a child arrangements order for the children to live with their father,
- a supervision order to the local authority for 12 months and
- monthly direct supervised contact with the mother.
- Mother’s contact with the children
The mother had contact with the children until August 2016.
In 2017, the mother made an application for contact. Following the Guardian’s recommendations, the court ordered letterbox contact twice a year and monthly telephone calls.
In 2018, the local authority arranged supervised contact between the children and the mother. The youngest child engaged in this contact; however, the older 3 children refused to enter the contact centre. These proceedings were eventually dismissed in 2019 due to the mother’s disengagement with the proceedings, and no further contact was directed.
The court was of the view that it was, in the main, the mother’s inconsistency that resulted in contact being irregular and not established. This impacted on the children as they rejected gifts and videos sent by the mother.
- Further applications were:
- 14 July 2022- The mother made an application for spend time with order
- 08 August 2024, the mother made an application for a specific issue order regarding the children’s education and a psychological assessment of the children, and
- The father made an application for a s91(14) Children Act order barring the mother from making any further applications without first seeking the court’s permission.
- Mother’s mental health
The court did consider the mother’s mental health; she was described as paranoid and aggressive in the first set of proceedings in 2015, but by the final proceedings, the judge had noted to the mother’s credit that she had “conducted herself in court with great dignity and was open to further therapeutic help.”
The judge emphasised the difficulty for the mother to deal with the children’s negatively, but also noted that the mother needed to be well enough to build a consistent and stable relationship with the children.
- Parental alienation
The mother alleged that the father had negatively influenced the children and failed to promote the mother’s relationship with the children. This was disputed by the father, who informed the court that he would encourage them to communicate with their mother but would not go against the children’s wishes and feelings.
The Cafcass officer provided evidence that there was no information to indicate that the children had been negatively influenced or alienated by their father from their mother.
The judge did not find evidence of parental alienation and found the father to be very child focused. The judge also noted that with the father’s support, the children had maintained contact with their maternal grandparents and maternal family, as he believed this to be in their best interests.
- No order principle (s1.(5) Children Act 1989)
The court considered the no order principle that it will not make an order unless it is better than making no order at all.
The court also considered the presumption that
…unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. (S2A Children Act 1989)
However, involvement does not mean any particular division of a child’s time as “involvement means of some kind, either direct or indirect. (S2B Children Act 1989)
- Children’s wishes and feelings
The children wrote to the family court and expressed a wish for their mother to leave them alone and requested that the judge stop “dragging” the proceedings and “bothering” them. The children had individually expressed themselves in similar ways to the Cafcass officer.
The judge wrote a child friendly letter to the children explaining the order made and of the weight the court had placed on their wishes and feelings, but also gently reminding them of the mother’s efforts to build a relationship with them and that “you only ever get one mother in life.”
- Contact
The judge took the view that imposing contact on the children would not be in their best interests. The court ordered that there should be limited indirect contact in the form of the mother sending emails and the father to send the mother updates every 3 months with the photographs of the children.
- Specific Issue Order
The children were being home schooled for the last 4 years, which was found to be their choice. The local authority gave evidence that a suitable home education was being provided. The mother wanted the children to receive an education at a school. The judge found that the children are well settled in their home-school routine, and to force them into school would be a reason to resent their mother, therefore not in their best welfare interests.
- Psychological Assessment
The judge did not consider a psychological assessment of the children was necessary, and that if directed may run the risk of further entrenching and alienating the children against their mother.
- S.91(14) Barring Order
Section 91(4) of the Children Act 1989 is an order that can be made by the family court restricting further applications to the court by a person without leave (permission) of the court. The aim of this order is to protect children or other indviduals from excessive applications that may have no merit.
S.91(14) Children Act 1989
On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.
In this case the court directed that any further applications by the mother would be dealt by the court initially on paper without the father having to be notified. The judge granted this barring order until the young child turned 16 years old, considering this to be necessary, proportionate and in the children’s welfare:
- This order was justified on the basis that the children should not be exposed to further applications without firm foundations, as it would be harmful.
- Further, this order would allow the development of maturity of the younger children.
Points to take from this case as a report writer
It is important to understand what information and evidence the court will find of assistance to make a decision that is the child/children’s welfare.
In this case the court considered and applied:
- The fundamental principles set out in the Children Act 1989, that is the no delay, no order, paramountcy and the welfare principle.
- Significant emphasis was placed on the children’s welfare. The judge ended the judgment by stating that “their welfare is the golden thread which has been woven into this judgment..”
- The importance of ascertaining the children’s wishes and feelings, which in this case the judge found to be clear, consistent and individually expressed.
- Although there is a presumption set out in S2A and S2B Children Act 1989 that parental involvement will further the child’s welfare. However, involvement does not mean any particular division and can be of some kind determined by the child’s welfare.
In this case, although the mother was seeking direct contact, the court took the view that forcing the children to have direct contact with their mother would be harmful and therefore not in their best interests. The court ordered indirect contact in the form of the mother sending of emails and giving a one to one opportunity for the children to respond individually in they wish to.
The judge hoped that by writing the letter to the children, that they would read it and reflect on it and that they will not close their minds to having a relationship with their mother.
How we can help
We are specialists in providing legal and social care training. If you require bespoke and practical skilled training on private law proceedings or writing effective court reports, or any other legal or social care matters, please contact us for a no-obligation discussion of your training needs.
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Disclaimer:
The contents of this guide are for information and are not intended to be relied upon as legal advice.