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Law - UK Family Law - Implacable
hostility
A. Implacable Hostility
"implacable" - OED definition, adjective, -that
cannot be appeased, inexorable
Now a term of art in contact cases
First judicial use of the phrase-
Re B (A minor) (Access) [1984] FLR 648
Court of Appeal, Sir John Arnold. P and Latey
J. Parents were unmarried and cohabited for approximately
18 months after birth of child. Following separation, there
was a period of three months of contact which then ceased.
Mother refused adamantly to countenance any further contact.
Father applied for contact. At first instance contact was
refused. On appeal;-
Per Latey J."The fact of the mother's invincible
opposition, which I think in this case can fairly be paraphrased
as her implacable hostility, is not in dispute".
Dismissing the appeal -Although the father argued
that the mother's implacable hostility was not a ground for
refusing access, it was a factor which had to be taken into
account. Save in exceptional circumstances, it was of very
real importance in the interests of the child's emotional
health that there should be contact with the non-custodial
parent. Where an exception had to be made, it was because
to enforce, impose, or seek to enforce or seek to impose access
would have adverse effects on the child and injure it. In
this case it was clear from his judgment that it was to that
conclusion that the judge had arrived. He had carefully considered
all the relevant matters and it was impossible for an appellate
court to intervene.
The court did however state that the judge=s
decision was not necessarily final and ordered that one year
on from the hearing date there should be a further welfare
report which should be sent to both parties to prompt further
consideration of the contact position.
Subsequently the Court of Appeal have set out
the guiding principles to be used by the courts in most contact
cases. The leading case itself concerned a hostile mother
in a keenly contested issue of contact, the facts of which
bare close examination as evidencing one judicial approach
to handling this type of case;-
Re O (Contact: Imposition of Conditions) [1995]
2 FLR 124
Sir Thomas Bingham MR, Simon Brown and Swinton
Thomas LJJ.
Unmarried parents cohabited but separated prior
to the birth of the child. The father breached a non molestation
order and was subject to a suspended committal order. The
father regularly sought contact and the mother made it clear
that she resisted this happening. It was noted that the mother
would not allow the child to go to father=s home or for the
father or any of his family to visit hers. She firmly believed
it would be detrimental to the child=s well- being for him
to have any contact to his father. Two successive direct contact
orders using a family centre broke down within a short period
of being made. The father applied for a penal notice to be
attached and mother applied for the contact order to be revoked
as the child was too distressed when contact took place. The
court welfare officer reported that contact would only ever
work in this case if the mother supported contact during the
period until the child got to know his father. As there was
no prospect of this happening the CWO indicated she could
not assist the court any further. The father then accepted
that direct contact was not practicable at that stage, but
sought wide ranging indirect contact.
The first instance judge sought to make a range
of orders focused on indirect contact which placed a duty
upon the mother to send the father photographs of the child,
regular reports of his progress at school and notification
of any significant ill health he suffered. The judge required
the mother to accept receipt through the post of cards, letters
and gifts sent by the father. A review was ordered after six
months back before the same judge. Within a few months of
this order the mother sought to discharge the part of the
order which required her to give information about the child
to the father, admitting that she was not prepared to have
any form of contact with the father whether direct or indirect.
The judge refused to alter the part of the order which related
to giving the father information and altered the order to
additionally require the mother to accept cards etc from either
postal delivery or via the welfare officer, to read to the
child the contents of any cards and letters and to give him
any gifts sent by the father.
The mother appealed this order arguing the court
had no power to compel her to do any of these things.
Bingham MR dismissed the appeal and held;
- That section 11(7) of the Children Act 1989
"provided a wide and comprehensive power" to make
orders which will be effective to ensure contact.
He also took the opportunity to restate fundamental principles;-
-That in accordance with the welfare principle
it the welfare of the child which is the court=s overriding
concern. The courts are concerned with the interests of the
mother and father only in so far as they bear on the welfare
of the child.
-Where a child=s parents are separated and he
is in the care of only one of them, it is almost always in
the interests of the child that he or she should have contact
with the other parent.
-The court has power to enforce orders for contact,
which it should not hesitate to exercise where it judges that
it will overall promote the welfare of the child to do so.
-Infrequently the court will not be able to
order any direct contact where to do so would injure the welfare
of the child. What was typically involved in such cases was
a serious risk of major emotional harm. The court should take
a long to medium term view of matters and not give undue weight
to short- term or transient problems.
-Where it was not possible to have direct contact
it was highly desirable for there to be indirect contact,
so that the child grew up knowing of the absent parent.
In the light of the Court of Appeal=s guidelines
in Re O, a different emphasis was placed upon another example
of a very hostile mother in the case of;-
Re D (Contact: Reasons for Refusal) [1997] 2FLR
48
Court of Appeal, Staughton LJ and Hale J.
Unmarried parents, who had never cohabited.
After the ending of their relationship, Mother refused contact
and argued father had been violent towards her. Father=s first
application when child aged 2, for a Parental Responsibility
Order and contact failed. When child aged 4, father brought
a further application for contact which failed again, the
judge at first instance finding that the mother was genuinely
fearful for her self and the child. Father's appeal was refused.
The court rejected any suggestion that race
was a material factor here (father was black and the mother
was white) in view of the child=s positive image of black
people in general. It was further argued that the judge, having
found that the mother's fears of the father were reasonable
and justified, ought to have balanced the risk of harm to
the child against the undoubted benefit of having contact
with his father. Given the judge=s finding on the evidence
the Court of Appeal believed he could properly have concluded
that it was not currently in the child's best interests to
have contact with his father.
The judge had not sought to close the door to
the father for all time. His view was that the father should
reapply at some future point when the mother could be reassured
that all would be well. He had made clear findings as to the
father's conduct and the mother's beliefs as to the harm that
would be suffered. It could not be said that the exercise
of the judge's discretion was outside the ambit within which
reasonable disagreement was possible, and the appeal failed
accordingly.
The term 'implacable hostility' usually referred
to the type of case where no good reason could be discerned
for a parent's opposition to contact. In such cases, the court
would be very slow to reach the conclusion that contact would
be harmful to the child. Such a conclusion would normally
only be reached where the court was satisfied that there was
a serious risk of harm in ordering contact. In other cases,
a parent could have genuine and rationally held fears for
the child or the parent him/herself. In such cases, where
there were good reasons for opposing contact, it could be
misleading to describe the parent's opposition to contact
as 'implacable hostility'.
Another example of a possible softening of the
original (Re A) approach towards implacably hostile mothers
was seen in a 1999 case in which the cause of the mother=s
attitude was plainly regarded as significant.
Re D (A Minor) (Contact: Mother=s Hostility)
[1999] 2 FLR 1
Court of Appeal, Balcombe and Waite LJJ.
Unmarried parents who had cohabited but separated
before the birth of the child with the mother alleging that
father was violent towards her. Father had behaved in an intimidating
way subsequently to mother and at later court hearings. Father
applied for contact when the child was one year old and was
granted a supervised interim contact order for three trial
sessions. These were unsuccessful. Contact was suspended.
Mother opposed any further contact, arguing it would be too
unsettling for the child. Father's contact application was
dismissed and he appealed.
The approach to contact had not changed since
the Children Act 1989, and the authorities which predated
the coming into force of the Act were still relevant. One
started with the premise that the child's right was to know
both its parents. However, there might be cases where there
were cogent reasons why the child should be denied that opportunity.
The court should take into account, as one of the factors
in its decision-making, whether the father had had some contact
with the child since the child's birth. The implacable hostility
of the mother towards contact was a factor which was capable,
according to the circumstances of each particular case, of
supplying a cogent reason for departing from the premise that
a child should grow up in the knowledge of both his parents.
The mother's attitude towards contact put the child at serious
risk of major emotional harm if she were to be compelled to
accept a degree of contact with the natural father against
her will, and this view was supported by the welfare officer.
The same theme of giving greater weight to the
causes underlying why extreme hostility may have come about,
was also seen in a strong Court of Appeal=s major guideline
case on Domestic Violence .
The court was heavily influenced by Wall J,
who as the Chairman of the Children Act Sub- Committee of
the Advisory Board on Family Law, delivered a report on parental
contact in domestic violence cases. The committee=s recommendations
were presented to the Lord Chancellor and were published (see
"A Report to the Lord Chancellor on the Question of Parental
Contact in Cases where there is Domestic Violence" (Lord
Chancellor's Department, 12 April 2000)).
Re L (Contact: Domestic Violence) [2000] 2FLR
334
Court of Appeal, Dame Elizabeth Butler Sloss P., Thorpe and
Waller LJJ.
The court specially arranged for appeals from four contact
cases involving allegations of domestic violence to be listed
together and took the step of also inviting the Official Solicitor
to act as Amicus Curiae. The OS in turn at the court=s invitation
instructed a high powered team of leading consultant child-
psychiatrists (Messrs Sturge and Glaser) to report in general
on the significance of domestic violence for children in the
same household, and in particular on the four subject cases.
There is no substitute to reading the general discussion by
the President of the family Division in this case of Contact
issues in general, the correct approach to domestic violence
and her review of the psychiatric experts= conclusions on
contact.
-A court hearing a contact application in which
allegations of domestic violence were raised should consider
the conduct of both parties towards each other and towards
the children, the effect of the violence on the children and
on the residential parent, and the motivation of the parent
seeking contact.
-On an application for interim contact, when
the allegations of domestic violence had not yet been adjudicated
on, the court should give particular consideration to the
likely risk of harm to the child, whether physical or emotional,
if contact were granted or refused. The court should ensure,
as far as possible, that any risk of harm to the child was
minimised and that the safety of the child and the residential
parent was secured before, during and after any such contact.
Family judges and magistrates needed to have a heightened
awareness of the existence and consequences for children of
exposure to domestic violence between their parents or other
partners.
-Where allegations of domestic violence were
made which might have an effect on the outcome, those allegations
must be adjudicated upon, and found proved or not proved.
-There was not, and should not be a presumption
that on proof of domestic violence the offending parent had
to surmount a prima facie barrier of no contact, but such
violence was a factor in the delicate balancing exercise of
discretion carried out by the judge applying the welfare principle
and the welfare checklist in s 1(1) and (3) of the Children
Act 1989.
-In cases of proved domestic violence, the court
had to weigh the seriousness of the domestic violence, the
risks involved and the impact on the child against the positive
factors, if any, of contact. The ability of the offending
parent to recognise his past conduct, to be aware of the need
to change and to make genuine efforts to do so would be likely
to be an important consideration when performing that balancing
exercise.
-Where there was a conflict between the rights
and interests of a child and those of a parent, the interests
of the child had to prevail under Art 8(2) of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms 1950.
"One parent (of either gender) seeks to
alienate their child(ren) from the other parent; this desire
may be either conscious or subconscious. Severe PAS becomes
self- perpetuating: the child refuses contact with the alienated
parent, having internalised a host of powerful negative messages
from the alienating parent."
Note this was briefly considered but rejected
by Messrs Sturge and Glaser.
B. The Enforcement of contact orders
The armoury of orders available for enforcement
of contact essentially comprise the following;-
a)-Endorsement of Penal notice on the contact order
But see
Re N (A Minor) (Access: Penal Notice) [1992] 1FlR 132
Court of Appeal, Mustill, LJ and Waite J.>br? Held that
breach of a defined access order could justify the imposition
of a term of imprisonment against the parent who refused to
comply with the order. Whether, and if so how and when, that
weapon of last resort should be used was essentially a decision
for the court hearing the case.
Need to phrase contact order in enforceable
terms to which a penalty notice could attach. An order for
reasonable contact cannot have a penal notice attached.
See D v D (Access: Contempt: Committal) [1991] 2 FLR 34
Court of Appeal, Dillon and Ralph Gibson LJJ
An access order to be capable of having a penal notice attached
to it must be framed in defined terms specifying the positive
acts that must be carried out or the acts that must be abstained
from.
b)-Seeking further directions
With a view to bringing forward a distant hearing or having
case put back into lists for reconsideration if new circumstances
have arisen.
c)-Application to commit
Resulting in a fine, costs order, a suspended committal or
an actual committal.
See case of
A v N (Committal: Refusal of Contact) [1997]
1 FLR 533
Court of Appeal, Beldam and Ward LJJ
Unmarried parents cohabited until child was
age 3 when they separated. Contact was refused as Mother refused
to accept that applicant was father of the child even after
DNA testing confirmed this. Supervised contact at home of
paternal grandmother was ordered (in view of some violence
and drugs involvement of father), but mother refused to permit
this to happen. Indirect contact was ordered as in turn was
contact at a family centre with social workers supervising
so that mother would not have to meet father at any stage.
In all some six separate contact orders of different types
over a period of 15 months were all flouted. The mother declared
that she would go to prison rather than obey any contact order.
A final suspended committal order was made conditional upon
contact being allowed on the next occasion it was due. The
mother again refused and the first instance judge ordered
immediate committal for a period of 42 days imprisonment.
The mother appealed against the first instance judge=s refusal
to vary the order.
The appeal was dismissed. It was stated "it
is perhaps appropriate that the message goes out in loud and
in clear terms that there does come a limit to the tolerance
of the court to see its orders flouted by mothers even if
they have to care for their young children. If she goes to
prison it is her fault, not the fault of the judge who did
no more than his duty to the child which is imposed upon him
by Parliament."
As to guidance to courts on sentencing for contempt
in family context see
Hale LJ in Hale v Tanner [2000] 2 FLR 879.
d)-Seek a Section 37 Report with a view to possible
supervision or care orders being made. Rather a dangerous
double-edged sword, but if serious concerns about welfare
of the children, this course may enable an independent check
to be made upon them.
e)-Consider residence application by parent
deprived of contact See encouragement for this approach by
Court of Appeal in
Re S (Minors) (Access) [1990] 2 FLR 166
Balcombe LJ stated;-
"In the present case, although B has been
with his mother since a very young age, it is clear from the
evidence that, unusually, the father is able to provide an
acceptable custodial arrangement. The usual problem in this
type of case where the custodial parent resolutely refuses
to obey an order for access by the court is that the court
has no effective sanction to enforce that order. Although,
like any other order of the court, it can be enforced by penal
notice and, if necessary in the last resort, prison for contempt
of court, it is a rare case - although I would not go so far
as to say it can never happen - that the welfare of the child
requires that the custodial parent be sent to prison for refusing
to give the other parent access. In this case there is a much
more effective sanction. If the mother remains obdurate, as
she has hitherto, then it seems to me that the court will
have to look at this case afresh and decide whether the welfare
of the child B requires that he be given the opportunity to
know properly his brother and father even though that may
regrettably mean taking him away from his mother. The choice
seems to me to lie with the mother."
f)-Consider seeking Family Assistance Order
But note limits of this type of order, (need
for consent etc) and see disapproval of seeking to compel
the local authority to organise escorts for prison visiting
by children to inmate father, under the guise of an FAO in
case of
S v P (Contact Application: Family Assistance
Order) [1997] 2 FLR 277
g)-Seek separate representation of children
and possible involvement of Official Solicitor, with a view
to obtaining child or adult psychiatric reports as appropriate
to guide and assist court. See cases of;-
Re F (Contact: Restraint Order) [1995] 1 FLR
956
Court of Appeal, Nourse and Waite LJJ.
In a case with an implacably hostile mother
who resisted all attempts at organising contact, and who refused
to co-operate with any assessment of the children ordered
by the court, an appeal was allowed from a refusal to permit
a further application by father seeking the appointment of
the OS to act for the children and leave to instruct a child-
psychiatrist.
Re A (Contact: Separate Representation) [2001]
1 FLR 715
Court of Appeal, Butler Sloss P., Hale and Potter
LJJ.
In a complex children dispute in which the court
had originally had sufficient concerns about both parents
to invite the local authority to become involved, residence
orders were eventually made to mother with detailed contact
provisions for the father with a Family Assistance Order to
smooth the operation of contact. This was successful and good
quality contact took place for 6 months. On the father then
seeking staying contact, with support from the Court Welfare
Officer, the mother made new allegations of sexual abuse by
father. No findings were made one way or the other of any
such abuse although further psychiatric reports were ordered
on the adults and the child. The mother ceased attending all
further court hearings and refused to permit staying contact
or indeed any contact to take place or any further assessment
of the child. The mother then approached the National Youth
Advocacy Service (a respected private charity) and they in
turn applied to be allowed to independently represent the
four year old child in question as Guardian ad Litem. At first
instance this application was refused.
The President allowed the appeal, although directing
that the OS should represent the child independently. While
as a respectable and independent body there was no objection
in principle to NYAS, the feature that the mother had already
had dealings with them rendered it unlikely that the father
would perceive them as independent. While in future CAFCASS
would in suitable cases take this role of separately representing
children, until they were fully functioning the OS would do
so in this case. Full investigation and findings had to be
made to Anail@ the sexual abuse allegations. The OS would
accordingly have leave to obtain expert analysis of the evidence
on this aspect. In the meantime there would be limited supervised
contact.
See the final report of the Children Act Sub
Committee (CASC), chaired by Wall J. published n February
2002, entitled-
Detailed consideration of this substantial report
is beyond the scope of this article, but see summary in March
2002 Family Law 164.
Much consideration is given to the possibility
of trying to remove contact disputes out of the courts altogether,
to be resolved by arbitration or mediation. This would attempt
to reduce the confrontational and adversarial aspects of litigation
which are seen as both contributing to and exacerbating the
overall problem of the break down in communication and trust
which so often accompanies contact failure.
On enforcement, legislation should be advanced to provide
powers to allow the courts to adopt two approaches, either
one that was essentially non-punitive or if this failed, one
that imposed outright penal sanctions.
-Power to refer a parent who disobeys contact orders, to a
variety of resources, including information meetings, meetings
with a counsellor, or other parenting programmes/classes,
-power to refer to a psychiatrist or psychologist
(publicly funded at first instance),
-power to refer a non-resident parent to an
education programme or perpetrator programme if violent or
in breach of an order,
-power to place on probation with a condition
of treatment or attendance at a given class or programme,
-power to impose a community service order,
with programmes specifically designed to address the default
in contact.
-power to award financial compensation from
one parent to another (for example where the cost of a holiday
has been lost or wasted).
Previous CASC recommendations have often made
their way rapidly into the case law. The more drastic and
sweeping powers now sought may require primary legislation.
This is not likely to materialize quickly given the low priority
recently accorded by this government to new family law. An
alternative may be expansion of what is deemed capable of
falling within the ambit of section 11(7) of The Children
Act 1989 by way of conditions attached to contact orders.
19th March 2002
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