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Solicitor says Kramer vs Kramer is a thing of the past
Warring parents looking to use their children in any separation or divorce battle have been sent a shot across the bows, as the Courts are saying it is in the best interests of children to see both parents.
Experts at Rotherham’s Oxley & Coward Solicitors in Rotherham are interpreting this as the courts toughening their stance and a move that could see parents being told to consider counselling or therapy if necessary to deal with their attitude - if this is a bar to a solution.
Recent rulings of the Court of Appeal make it clear that the responsibility for achieving the best outcome for a child in the wake of separation or divorce lies with the parents themselves and not with the courts or any other agency of state, however tough it may seem.
“Contact with the father or mother will only now be denied as a last resort,” said Colin Musgrave, Family Law specialist with Oxley & Coward Solicitors. “Parents cannot use divorce or separation to shirk their responsibilities towards their children or attempt to use them against their ex partner and expect the courts to back them up by denying contact to the other parent.”
The ruling comes following one such long battle in the case of W (Children). The mother and father lived together for six years, bought a house and had two children. The relationship ended when the father had difficulty controlling his temper; often shouting verbal abuse at the mother.
The mother left the family home in 2008, taking the children with her and although the father had contact to start with, arrangements soon broke down and despite a court order for weekly direct contact, the mother refused the father access. A psychologist recommended the father undergo therapy to develop his emotional awareness and to help manage his anger, which he did and made good progress, but the mother said she was too traumatised and found it impossible to cooperate over contact.
When the case first came to trial the judge agreed the mother’s distress and anxiety was so strong and deep rooted that it was impossible for her to cooperate with contact arrangements, so the judge ordered there should be no direct contact between the father and his children. But when the father took his case to the Court of Appeal – the judges agreed with him.
In his judgement, Lord Justice McFarlane said the courts must look to two principles in deciding contact disputes. Firstly, welfare of the child is paramount and the court is only concerned with the interests of parents insofar as they bear on the welfare of the child. Secondly, it is almost always in the child’s interests to have contact with the parent with whom they are not living. On this basis, contact should only be denied as a last resort and after the judge has grappled with all the possible alternatives.
The first trial had identified the mother’s refusal to undergo therapy as being the sole barrier to contact with the father and by accepting the mother’s position on this; the inevitable consequence was to deny contact with the father. This was wrong, according to the Court of Appeal, because the judge had failed to grapple with the alternatives and had denied contact to the father when she should have focussed on getting the mother to undergo therapy to help her cooperate with contact arrangements.
“This is an important case because it should send out a clear warning to warring parents,” added Colin. “Lord Justice McFarlane says the courts will almost always regard it as being in a child’s best interests to have a meaningful relationship with both parents. The message is parents must set aside their differences for their children’s sake and work out ways to achieve this. If there are obstacles, they must find a way to overcome them – whether that is simply a case of backing down, or therapy, counselling or mediation to help them do so.”
For further information, contact Oxley & Coward Solicitors on 01709 510999, visit www.oxcow.co.uk or e-mail firstname.lastname@example.org