Contact and
the Unusual Parent
By District Judge John Mitchell
© 2003-2004 Jordan Publishing. All Rights Reserved
In their article ‘Asperger’s Syndrome in
Child Contact Cases’ [2002] Fam Law 199, Lynn Henderson and Nicole Hackett
discussed the problems posed for contact when the non-resident parent
suffers from Asperger’s syndrome, a condition related to autism, which can
manifest itself in bizarre behaviour. They commented that, where the
underlying reason for a parent’s behaviour is a mental health issue ‘it will
have a bearing on the perpetrator’s capacity to recognise the problems in
his past behaviour and to change and modify his behaviour’.
The law reports for the last 10 years
contain cases where the High Court or the Court of Appeal has considered
whether to grant contact orders or orders for parental responsibility in
favour of fathers who behave in ways that their children and the resident
parent find bizarre and disturbing. A distinctive feature of these cases is
that the fathers cannot be blamed for their behaviour, the cause of which
lies in illness or fixed personality traits. For this reason, until there
has been a full investigation of the behaviour and its impact on the child
and the resident parent, courts have been careful to avoid reaching a
conclusion that direct contact should not take place.
The Cases
The reported cases vary in their relevant features, which include the age
and understanding of the children, whether or not they had lived with their
father before the difficulties arose, the attitude of the mother, and the
effect of the father’s behaviour on her and on the children. Re B (Minors:
Access) [1992] 1 FLR 140 concerned a father who was socially awkward and
displayed considerable anxiety. He and the mother had separated shortly
after the birth of the youngest child. There was no suggestion that he might
be violent towards his children (aged 12 and 11) but his eccentric behaviour,
for example, walking along a street with a plastic bag on his head,
distressed them.
In Re F (Minors) (Denial of Contact) [1993]
2 FLR 677 and Re L (Contact: Transsexual Applicant) [1995] 2 FLR 438, the
fathers were transsexual, in transition to full gender reassignment. Both
had lived with the children. In the first case, the children were boys aged
9 and 12. After the father left home, the elder boy, not knowing about his
father’s condition, refused to see him and displayed phobic symptoms for
which he was now receiving help from a child psychiatrist. The younger boy
had accidentally met the father when dressed in female clothing and,
although displaying no psychiatric disturbance, currently refused to see
him. In the second case, the child was a 6-year-old girl who was unaware of
her father’s condition. The child’s mother was resolutely opposed to the
intermittent contact that had taken place.
The father, in Re W (Contact: Parent’s
Delusional Beliefs) [1999] 1 FLR 1263, suffered from paranoid delusions. He
and the mother separated when the younger of the two children (now aged 10
and 11) was one year old. The father had been violent towards their mother
on one occasion at a contact centre. Contact had been unsatisfactory for 6
years. Although the two children enjoyed seeing their father, they found
contact at a contact centre boring and were made anxious by their father
often ignoring them. They were now saying they did not want to see him.
In M v M (Parental Responsibility) [1999] 2
FLR 737 the father suffered brain damage as the result of a road accident,
before the child (now aged 3) had been conceived. His resulting memory
impairment and limited capacity for problem solving led to frustration and
anger, resulting in violence towards the child’s mother who was afraid of
him. They had never lived together.
In the most recent case, Re H (Contact
Order) (2001) 1 FCR 49 and Re H (Contact Order) (No 2) [2002] 1 FLR 22 the
father suffered from Huntingdon’s disease, a progressive, degenerative
disorder. He and the mother separated when the younger of the two children
(aged 5 and 9) was 2. He experienced sudden mood swings, had been violent
towards the mother, and had abducted the children, threatening to kill them
and commit suicide. He had no real insight into how his behaviour impacted
on the children’s mother.
Procedure and Evidence
Despite the complexity of the applications, all of which seemed appropriate
for trial in the High Court, they all commenced in the county court with the
exception of Re L (Contact: Transsexual Applicant). When the Court of Appeal
directed a rehearing in Re W (Contact: Parent’s Delusional Beliefs), Hale J
commented (at p 1268) that: ‘It is a case which has elements which might
make it suitable for trial in the High Court as it will obviously contain
both adult and child psychiatric evidence’. But because of the delay that
this would cause, the rehearing was directed to take place in the county
court. In Re H (Contact Order) the Court of Appeal directed a rehearing
before a High Court judge.
In most cases, there was a history of
previous proceedings, for example injunction proceedings, and/or a history
of failed attempts to resolve contact issues without resort to the courts.
The application in Re W (Contact: Parent’s Delusional Beliefs), for example,
had been issued 4 years before the appeal was heard and nearly 2 years after
the mother had applied to vary the contact order, which had been made by
consent. By the time cases reached the reported hearing, the need to avoid
further delay inhibited the obtainment of further expert evidence and the
proper representation of the children’s interests.
In all cases, at least one, and sometimes
more, court welfare officers had reported and, in all cases other than Re B
(Minors: Access) and M v M (Parental Responsibility), the court heard
evidence from an adult psychiatrist. However, in only one-half of the cases
(Re F (Minors) (Denial of Contact), Re L (Contact: Transsexual Applicant)
and M v M (Parental Responsibility) was there evidence from a child
psychiatrist. This is surprising, given the perceived risks to the children
posed by contact. In two of the cases, where there was no such evidence, the
court expressed the view that evidence should have been sought. In Re W
(Contact: Parent’s Delusional Beliefs) the Court of Appeal remitted the case
for a rehearing and gave leave for a child psychiatrist to be instructed:
‘The case is crying out for a proper psychiatric assessment, not only of the
father … but more importantly, of the effect upon the children’.
In the other, Re H (Contact Order) (No 2),
Wall J said that the court, the children and both parents would have
benefited from the advice of a consultant child psychiatrist. However, he
decided not to adjourn the hearing because of the prolonged uncertainty this
would cause.
In none of the cases other than M v M
(Parental Responsibility) were the children represented. In Re W (Contact:
Parent’s Delusional Beliefs) the Court of Appeal directed that the children
be joined as parties and invited the Official Solicitor to represent them.
In Re H (Contact Order) (No 2) Wall J said (at p 36):
‘It does seem to me, as a matter of
principle, that where the court is faced with contact issues as difficult as
those which arise in this case, consideration should be given to the
children being separately represented and, where appropriate, expert
evidence being sought on their behalf. In such cases children quite
frequently have particular interests and standpoints which do not coincide
with and are not necessarily capable of being adequately represented by
their parents. Absence of separate representation in the present case means,
in my judgment, that the court cannot give the children all the assistance
they need.’
However, again because of the delay and
uncertainty, which would be caused by an adjournment, he decided not to
order separate representation.
The Attitude of the Mothers
By definition, the children’s mothers opposed contact otherwise there would
have been no contested hearing. The background to their opposition varied.
In some cases, most markedly in Re H (Contact Order), there was a history of
violence and/or threats to themselves or the children and a fear of future
aggression. In others, for example Re L (Contact: Transsexual Applicant)
there was an objection to contact that was not based on a fear of physical
harm. Where a father changes during the course of the relationship and that
change brings about an end of cohabitation, there are bound to be feelings
of anger and betrayal. As Thorpe J (as he then was) commented in Re L
(Contact: Transsexual Applicant) (at p 442):
‘The only obstacle to ordinary contact
between the applicant and S is transsexuality. That is a huge challenge for
any family, particularly when its emergence post dates the break down of the
relationship and when its progress is so rapid and when its disclosure is
through antagonistic and not co-operative channels of communication
… In all the circumstances, the strength of
the mother’s emotional rejection of what has happened and therefore of what
is offered to help her adjust is entirely understandable.
’In some of the cases, there had been a
period when mothers, perhaps against their better judgment, agreed to
contact but gradually came to oppose it. In Re B (Minors: Access), although
there had been contact for a number of years, albeit with difficulties:
‘[the mother] has made no attempt to conceal her opposition from the
children or encourage them to make the best of what, in her view, is a very
bad job’.
The Approach of the Courts
Although there was no cross-referral
between cases and the welfare checklist was seldom explicitly applied, the
judgments demonstrate a uniform approach. They adopt what Waite J in Re B
(Minors: Access) (at p 142) called:
‘[the] normal assumption that a child would
benefit from continued contact with a natural parent who, in that very
limited sense only, has a right to access, although that natural parent who,
in that very limited sense only, has a right to access, although that
assumption and that right are always liable to be displaced if the paramount
interests of the child demand it.’
In a number of cases, judges expressed
their opinion that it was important that the children should grow up
understanding the nature of the father’s condition and knowing that he loved
them:
‘The very limited access proposed by the
court welfare officer was humane and sensible. It would, on the one hand,
prevent the father from becoming an unknown quantity in the children’s
minds, elevated, perhaps through absence, to a status inviting fear or
fantasy in crucial teenage years … He may be a social misfit. He may merely
be an eccentric. The children’s best interests do require at least this,
however, that they should have an opportunity of gradually understanding
those attributes in their father, perhaps even coming eventually to accept
and appreciate them as something of which neither he nor they need feel
ashamed.’ (Re B (Minors: Access), at p 146, per Waite J)
‘I … still believe, that [J] should in
principle grow up in the knowledge of [her father]. I am clear that he loves
her dearly and that it is important for her to feel his love and to
understand that his present inadequacies are the product only of a cruel
twist of fate.’ (M v M (Parental Responsibility), at p 742, per Wilson J)
The risks to the children of a contact
order in cases of this kind are bound to appear high on the checklist
factors and need to be investigated with care. Hale LJ in Re H (Contact
Order) explained that:
‘[The judge] had to balance firstly the
risks to the children if they saw their father, secondly the ways of
containing and managing those risks and, thirdly, the wider needs of the
children … As to the first, the risks of some sort of harmful behaviour
towards the children in this case must be taken very seriously … Nor can the
impact of [the father’s behaviour] upon the mother who bears the principal
responsibility for looking after those children and safeguarding their
futures be ignored … [Strategies] for containing and managing the risks of
what the father might actually do … [are] not an issue which can be left on
one side.’ (at p 56)
Although the courts considered the views of
the children, the weight that was given to them varied, sometimes because,
although the children (as in Re H (Contact Order) had a close relationship
with their father, the risk posed by direct contact was significant and
sometimes because they had little understanding of the situation (as in Re L
(Contact: Transsexual Applicant)). In Re B (Minors: Access) the two
children, aged 12 and 11, had said that they did not want to continue to see
their father but the Court of Appeal allowed the father’s appeal against a
termination of contact on the grounds that their best interests required
contact. In contrast, the Court of Appeal in Re F (Minors) (Denial of
Contact) held that the trial judge was right in giving ‘very considerable’
weight to the views of the two boys, aged 9 and 12, that they did not want
to see their father.
The Orders
In Re B (Minors: Access) the risks of contact were insignificant and the
objection of the mother to contact was held to be unjustified. Contact at a
contact centre with a review
was ordered.
Where the risks of contact were
insignificant, but the objection of the children required psychiatric input
or the mother’s objections were either reasonable or were so deep-rooted
that they would seriously impede direct contact (as in Re F (Minors) (Denial
of Contact) and Re L (Contact: Transsexual Applicant)), the question of
direct contact was adjourned in the hope that therapy would help:
[The mother] needs to be helped into
professional relationships which will enable her to come to terms … In the
end she has to put S’s interests before her own hurt, anger, incomprehension
and distaste.’ (Re L (Contact: Transsexual Applicant), at p 442, per Thorpe
J)
In the latter case, the court also made a
family assistance order and ordered indirect contact. In M v M (Parental
Responsibility) and Re H (Contact Order) (No 2), the risks of contact were
held to be so great that it could not safely take place even under
supervision and direct contact was refused. In both cases indirect contact
was thought to be in the best interests of the children, the father not only
being able to send cards, photographs and presents, but also receiving
photographs and reports on the child. In Re H (Contact Order) (No 2) email
and video contact was also proposed.
Parental Responsibility
In most cases the fathers already possessed parental responsibility but it
was applied for in Re L (Contact: Transsexual Applicant) and M v M (Parental
Responsibility). Thorpe J was in no doubt that the transsexual father should
have parental responsibility. There was attachment, commitment and
reasonable motives for wanting it (the threefold test set out in Re H
(Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214).
In M v M (Parental Responsibility), however, Wilson J with ‘a real sense of
discomfort’ held that the father’s lack of understanding of the concept of
parental responsibility and the consequences of it being misused dictated
the refusal of his application.
Conclusions
These six cases, linked by a common thread
of personal difficulties on the part of non-resident fathers, were decided
on their own facts but show a common theme:
(1) the reasons for refusing direct contact
and the possibility of managing and containing risks need to be thoroughly
investigated;
(2) case management needs to ensure that
there is no delay in:
Some
are the melody, some are the rhythm, some are the harmony