Mother of all battles

High-profile protests by pressure groups such as Fathers 4 Justice have fostered the public perception that fathers face unfair treatment from the courts when it comes to recognition of their role in their children's lives. This perception has some grounding in reality, as fathers do face considerable difficulties when it comes to enforcing orders for contact with their children in the face of mothers who are determined to obstruct those orders.

However, the family courts are becoming increasingly unwilling to tolerate such behaviour and have new provisions available to enforce contact orders (including community service penalties) by virtue of the Children and Adoption Act 2006, which came into force last year.

A number of recent reported decisions show that the courts are also willing to take the ultimate step to ensure children do not lose their relationship with their fathers, and will transfer residence between parents where absolutely necessary.

These decisions may compel obstructive mothers to encourage the relationship between father and child and, perhaps, to recognise that their behaviour can ultimately result in their 'losing' their child.

Transferring residence

On 4 January 2010, in the Family Division of the High Court, His Honour Judge Bellamy ordered that a child (S), aged 11, who had always lived with his mother, should now live with his father. The mother and the National Youth Advocacy Service (NYAS) appealed the decision, but the appeal was refused. The decision on 21 January 2010 and reported as Re S (a child) [2010] EWCA Civ 219 comes on the heels of another recent and similar case, upheld by the Court of Appeal, for transfer of residence from mother to father (Re R (a child) heard on 6 November 2009 and upheld by the Court of Appeal on 17 November 2009 ([2009] EWCA Civ 1316)).

In Re S, the parents separated in September 1997 and their son, S, was born in March 1998. The father made his first contact application in June 1999, and more than ten years of litigation followed.

S had not had any contact with his father since February 2006, almost four years before the final hearing before HHJ Bellamy, and there had been a failed contact order providing for S to spend time with his half-siblings in July 2009.

The order transferring residence was made in the absence of any expert evidence in favour of the transfer of residence, and the order was against the advice of the NYAS. There was no oral evidence given at the hearing, apart from some evidence from the father in relation to the practical arrangements for the move.

Assessing wishes and feelings

The judge found that S had become completely alienated from his father and had no wish to see his him, let alone go and live with him.

However, expert evidence was provided to the court by Dr Weir, the consultant adult and child psychiatrist instructed to advise, who said that 'the child's expressed wishes and feelings are irrational and should form no part in the court's decision making'.

In the judgment, HHJ Bellamy said that it would be wrong for a court to ignore a child's true wishes and feelings, as this would be contrary to existing case law as well as both the welfare checklist and the United Nations Conventions of the Rights of Child. However, he went on to say that S's expressed wishes and feelings needed to be assessed in the light of his age and understanding, and that, when considering the weight which should be attached to them, the impact of alienation and the fact that S's expressed wishes and feelings might not be his true wishes and feelings should be taken into account.

The judge found that the mother had opposed and undermined contact between S and his father, but the judgment makes clear that she had been a good mother in most other respects.

HHJ Bellamy had an extremely difficult task in balancing all the competing factors, and, following a detailed analysis, concluded that 'traumatic though it may be in the short term, it is in the best interests of S's long-term welfare for him now to live with his father'.

Shared residence

There has been an increasing trend for fathers to seek orders for shared residence rather than contact, and such orders are increasingly becoming the norm in the Principal Registry of the Family Division in London, regardless of whether a child's time is shared equally between parents.

Shared residence orders are now commonly made in cases where the court takes the view that the label of shared residence is a useful tool to reinforce to both parents that they have equal rights, responsibilities and duties in relation to their children and are of equal status.

A lacuna in the Children and Adoption Act 2006 is that the new enforcement provisions are not available to the court to order against an obstructive mother where a sharedresidence order has been made; the new enforcement provisions are only available to enforce contact orders.

To ensure the child has a continuing relationship with both parents, in the context of a shared residence order, the court must fall back on the established enforcement methods, including the ultimate step of transferring residence where one parent is persistently obstructing the child'srelationship with the other parent '“ as in the case of Re S.

Fathers should not be under any illusions that making such an application will be easy, but perhaps the recent decisions are a sign of more to come.