Separation and Presumption of Involvement

26 Feb 2018

In the sad and unfortunate event that parents separate, they have a duty and responsibility to their children to ensure that they are able to maintain a meaningful relationship with both of them.

This can be best achieved by regular contact, whether that is spending time with each parent or having “indirect” contact by way of letters, text messages, telephone calls or video calls.

The law provides a presumption that the continued involvement of a parent in the life of the child is in the child’s best interests, unless it can be proved to the contrary.

After 2 years of litigation, in January 2017, the Court was asked to determine the arrangements for 2 children of an ultra-orthodox Jewish family. The father was transgender and the mother argued that both she and the children would be ostracised by the community if the children maintained contact with their father.

The Judge determined that the risk of psychological harm to the children were they to resume direct contact would be too great and Ordered that there should be indirect contact only.

The father appealed on the basis that the Judge had not considered all the options and had failed in his duty to place the children’s welfare as his paramount consideration. The Judge had failed to consider that the family’s religious beliefs and those of the community in which they lived were discriminatory towards the father and therefore, potentially unlawful.

In December 2017, the Court of Appeal determined that the community’s religious practices were discriminatory under Human Rights law. Further, that the Judge had failed to evaluate how indirect contact was in the children’s best interests but that direct contact was not, even though through indirect contact, the children would learn of their father’s transgender status; something which the mother and their community sought to restrict.

The Judge had failed to do all that he could to make direct contact work. The Court of Appeal had in previous cases reiterated that contact was only to be stopped as a last resort and only once it was clear that the children would not benefit from continuing the attempt. In cases which involve intransigent parents, the Court adopts a robust approach and can make Orders transferring the children’s living arrangements or instigating Court proceedings. However, in this case, the Judge appeared to be of the opinion that the family’s religious beliefs trumped all other welfare considerations and abandoned direct contact without even giving it a chance.

The Court of Appeal remitted the case back to the High Court for further consideration, but made it clear that it was in the best interests of the children’s welfare for there to be more contact with their father, if that could be achieved and that the Court must therefore persevere with its attempts to make it work.

This Court of Appeal’s decision demonstrates that the children’s welfare is the Court’s paramount consideration when determining their arrangements and the presumption that the continuing involvement of both parents in the children’s life is in the best interests of their welfare. At the conclusion of their Judgment, the Court of Appeal said “As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in the children’s lives.”