Lawyers must fix the problems with gagging orders before it is too late
The Court of Appeal judgment on 25 July 2012 in the case of Re: W (Children)  EWCA civ 999 reaffirmed the well-established principle that it is in children’s best interests to have relationships with both parents following divorce or separation. Despite this, it is all too common for parents who are separated to lose focus of what really is in the best interests of their children and instead focus on their own experiences with their former partners/spouses.
The case of Re: W involved allegations of violence, which were eventually not proven, made by the mother against the father. The mother was particularly emotional and distressed about the prospect of the father having contact with the children. HHJ Marshall of the originating Court focused on the emotional stability of the mother and her inability to cope with the children having contact with the father as a result of the trauma she alleged she had experienced. HHJ Marshall made an order for indirect contact and it was this order that was appealed by the father.
Lord Justice Macfarlane sitting in the Court of Appeal determined that HHJ Marshall erred in her application of the established case law concerning contact; she had mistakenly placed too much emphasis on the interests of one of the parents, namely the mother, and in doing so failed to adequately consider the best interests of the children. In considering the law surrounding contact, Lord Justice Macfarlane also considered the wider topic of parental responsibility; the meaning and impact of that phrase outside of what is prescribed in the Children Act 1989 and specifically stated:
“The phrase under consideration is not “parental rights” but “parental responsibility”. Along with the “rights…powers...and authority” enjoyed by a parent comes the “duties” and responsibilities which a parent has in relation to a child.”
The Court of Appeal has reaffirmed in strong terms that both parents have a responsibility to ensure, as far as possible, that their children maintain relationships with the other parent following separation.
It is without doubt that children will be influenced by their parents. Where a relationship has been acrimonious and relations between the parents have become highly charged, it is not unimaginable that a child may side with one parent or the other. The Judgment of Lord Justice Macfalane firmly places responsibility on both parents to ensure they do not allow their own feelings towards their former partner/spouse to influence their children and in turn the relationship the children form with the other parent. There will of course be occasions when contact with a parent would not be in the best interests of the child/ren, and in these exceptional scenarios the Court may intervene.
Lord Justice Macfarlane emphatically stated “The Children Act 1989 does not place the primary responsibility of bringing up children upon judges, magistrates, CAFCASS officers or courts; the responsibility is placed upon the parents” and later states that his observations concerning parental responsibility are:
“part of a wider context in which the family courts seek to encourage parents to see the bigger picture in terms of the harmful impact upon their children of sustained disputes over contact”.
The Court of Appeal Judgment emphasises the detrimental impact the loss of a parental relationship can have on a child and encourages parents to see past their disputes and see the “bigger picture” of child welfare.
Lord Justice Macfalane went on to state that his intention in setting out his observations on parental responsibility is:
“to give them [his observations] a degree of prominence so that they may be brought to the attention of parents who have separated at an early stage in the discussion of the arrangements for their child.”
The judgment serves as a useful reminder not only to the legal profession but to all parents considering separation or divorce of the importance for children to have relationships with both their parents, even in fractious circumstances.
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