NEWS FLASH : The ‘tragic’ case of Re A (A child) [2015] EWCA Civ 910: Implacable hostility in contact cases

The Court of Appeal has recently considered the ongoing issue in private law children cases of implacable hostility, reaffirming the approach of Re W.

In Re A (A child) [2015] EWCA Civ 910, the child (B), now aged 12, and his Mother had significant psychological and emotional vulnerabilities. The father had initially applied for contact with his son in 2006.  However, the father subsequently withdrew this application due to the stress that this was having on the mother.

The father made a subsequent application in 2010. By this stage, the mother ‘’had developed and consolidated a highly negative and adverse view of the Father to the effect that he was a dangerous man with respect to B's welfare, and B came to adopt that view’’ (para 20).

Four years later, the matter was finally determined before His Honour Judge Atkins on 17th September 2014. HHJ Atkins stated that in relation to the Father ‘’now that he, as I find, presents as a ... calm, thoughtful and caring man, somebody who has a good relationship with his own family, and somebody who does not present a risk to [B].  I consider that he does genuinely care for and want a relationship with [B]." (para 43). However, HHJ Atkins dismissed the father’s application for change of residence and ordered no direct contact, due to the harm likely to be suffered by the child. The father subsequently appealed.

In the Court of Appeal, McFarlane LJ reiterated the provisions now contained in section 1(2A) Children Act 1989 that "it is and should be a given that it will normally be in the best interests of a child to grow up having a full, real and entirely ordinary relationship with each of his or her parents, notwithstanding that they have separated and that there may be difficulties between the two of them as adults" (para 43). He reiterated that the approach to be taken in implacable hostility cases is as per Re W (Direct Contact) [2012] EWCA Civ 999:

  • Where it is in the best interest of a child to spend time with the other parent, then part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be;
  • Where there are significant difficulties in the way of establishing safe and beneficial contact, the responsibility falls on both parents to address those difficulties;
  • All parents have a responsibility to do their best to meet their child's needs in relation to the provision of contact. It is not acceptable for a parent to shirk that responsibility and simply say "no" to reasonable strategies designed to improve the situation in this regard.
  • However, MacFarlane LJ dismissed the father’s appeal, stating that the Judge was right to identify the harm that B would suffer if direct contact was ordered. At paragraph 51, he said ‘’This was a boy who was shortly to be 12 years old.  He was adamantly and consistently saying "no" to any form of contact, even indirect contact, with his father.  The reasons that he was saying "no" may well be subtle and sophisticated, emotionally entangled with his relationship with his mother and the mind-set that he had developed about his father in the period during which he has not been seeing him, but "no" was his approach, and to contemplate moving a 12 year old child from that position to having contact was a formidable obstacle in the way of the Father's application.’’

The Court reiterated the tragedy of the case, not only for the father but also for the child who ‘’ had a warm, easy and close relationship with his father when he was much younger before their separation took place’’ (para 52).