The Intractable Contact Dispute and the Welfare Principle

In the past few days, judgement has been passed by the Court of Appeal which concerns a case of what family lawyers call an intractable contact dispute.

The case in question: A (A Child) [2013] EWCA Civ 1104 has experienced 12 years of almost continuous litigation through the Court, with a remarkable 82 orders being made throughout the lifetime of the application. The little girl in question was just under two years old when her father made the application for a contact order and she is now nearly 14.

You can read the full judgement here to appreciate the trials and tribulations which the family have been through.

I would think that all family lawyers have stories to tell of cases which have spanned years of Court litigation, especially ones involving children matters. The longest I have experienced was five years; a long case but still less than half the amount of time as the one in question. It was an extremely stressful matter to deal with, even for somebody on the outside like me, so I cannot imagine what it must have been like for the parents - and more importantly the children.

The family justice system has at its heart the promotion of the child's best interests in all family cases. The welfare principle enshrined in Part 1 Section 1 of the Children Act 1989 creates the mantra that [in summary] When a court determines any question with respect to the upbringing of a child; or the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.

A very wide discretion is available to a Judge in determining such issues of welfare and obviously each case is different; it is very difficult for a family lawyer therefore to pinpoint exactly what will be in the child's best interests and what is or isn't good for their welfare. Hence you will often hear of cases such as that above which seem to take an age to reach a satisfactory conclusion.

My recent blogs have highlighted the various mechanisms being implemented by the government to assist the family courts in dealing with cases such as the one highlighted in this article:

  • The proposed change to legislation regarding shared parenting;
  • An increased focus on the promotion of mediation prior to making a court application (together with a proposed change to the application rules);
  • The cuts to family legal aid.

Each proposal has its pros and cons; there will no doubt be many more proposals to come in the future and the law is always developing. I would always advocate the use of family mediation as early as possible to avoid any long-term damage to a family relationship, but clearly it does not always work and is not always appropriate.

Being a family solicitor is a challenging job made more so by the complex dynamic of each individual family. I have no doubt that those involved in this case used their best endeavours to reach a satisfactory conclusion, but unfortunately the judge was of the opinion that the father had been denied contact with his daughter by a systematic failure of the family courts.

If you need advice regarding contact with your children, or indeed any other family law issue, please contact one of our Family Law experts on 0113 201 4900. We have offices throughout Leeds in Rothwell, Colton Mill, Crossgates, Castleford and Garforth and can meet with you at your convenience.

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