Faced with uncooperative parents, the family courts can apply a range of sanctions, as long as these do not affect the welfare of the couple’s children.
Family court disputes are inevitably difficult experiences for the parents and emotions can run high. But while the accusations might fly in correspondence between Mum and Dad, the courts insist on decorum and cooperation.
But what if the parents are unable or unwilling to deliver this? What if a parent flagrantly ignores the court order or prevents their former spouse or partner from seeing the children at agreed times? What if they’ve broken other agreements set out in a binding child arrangements order drafted by a court?
The difficult parent may be motivated by jealousy of your new relationship, for example, or resentment of the time you do get to spend with the children.
Contempt of court
Parents who behave in this manner are technically in ‘contempt of court’: this offence is taken seriously and can lead to fines and even prison sentences. However, these harsher penalties must be applied with caution precisely because the individual is a parent. A mother cannot look after her children in jail and a father who works long hours may not be able to provide substitute care.
Consequently, the courts’ default to badly behaving mothers has been to give them further chances and issue new court orders, in order to minimise disruption to family life. This has sometimes led to complaints from fathers’ rights activists that the family courts are soft on mothers and biased towards fathers: this is not true. Some older judges may have held very traditional attitudes to family life, but increasing numbers retire each year.
Change of Residence orders
One penalty available to the family courts is specifically designed for parents with whom the children live on a day-to-day basis: what if they start to misbehave so badly the welfare of the children is threatened? A change of residence order means the child or children will be sent to live with their other parent. This is an option of last resort: at minimum it means all he disruption and strangeness to a new home, but it can also mean a new school or even new friends. But sometimes the courts have no other choice. A recently published case illustrates the circumstances in which a Change of Residence order might be ordered by the family courts.
In this case, County Court Judge C Baker sent a toddler referred to as ‘Ben’ to live with father, thanks to his mother’s refusal to “engage with or cooperate with proceedings concerning the child’s welfare.”
The boy’s welfare therefore demanded removal from the mother’s day-to-day care, he explained.
Ben was born in 2021. The following year his father complained to the family courts that he had been unable to see his son.
Not long afterwards, the mother sought a non-molestation order against the father, specifying that he could have no contact and accusing him of sexual assault. The Police did not pursue the case after reading text messages between the two. Nevertheless, she was granted a temporary, interim injunction. Multiple court hearings followed, some concerning the jurisdiction (legal authority) of the courts involved, the majority of which the mother did not attend.
His Honour Judge Baker explained:
“It is recorded … that the Court had warned the mother on 5th May 2022 that, should she fail to attend [a significant hearing], that the matter could proceed in her absence and legally binding orders could be made. It records that it is satisfied it has jurisdiction to deal with the dispute relating to Ben, included, but not limited to, making orders regarding his living and contact arrangements.”
But the mother failed to take the warning seriously. She did not attend the hearing and again questioned the court’s jurisdiction.
The non-molestation order was discharged and Cumbria County Council raised concerns over the toddler’s welfare. He was made subject to a temporary care order in which social workers would share parental responsibility with the mother.
Judge Baker noted:
“I ordered the mother to attend court on 24th October  and I made it clear that she could ask for special measures, such as screens and separate waiting areas, in respect of her attendance, and I provided for the mother to be personally served by a process server in respect of that hearing [i.e. have notice of the hearing personally delivered to her].”
The father attended the hearing but the mother did not.
In December the Judge explained in a legal order that:
“The father made it clear to the Court he would prefer for Ben to live with his mother and for him to have contact with a view to stepping up to shared care arrangements in the future, but the fact that mother is unwilling to even attend court or speak to the social worker is making that impossible.”
A further attempt at a hearing later the same month was attended by the baby’s maternal grandmother, who had previously refused to accept papers from the process server, who reported that:
“During our conversation on the doorstep, the grandmother stated that if I came back to try and serve her with the papers, they would not answer the door and that her daughter, [Amy], would not accept any papers as ‘the Court and social services are all corrupt.’ She also stated to me that they were being assisted and given advice by a ‘family friend’, and that Ben had no birth certificate, because if he had one, he’s then ‘owned by the government’.”
The mother also emailed the court, declaring that:
“We will not be attending your hearing today. This is because again the court has failed to provide us with evidence of the authority that grants them power to make demands of any man…I must remind you that the police are public servants and are not lawfully permitted to get involved in civil matters, which they confirmed.”
She went on to express views suggesting she was an adherent of ‘Freemen of the Land’ legal conspiracy theories.
Judge Baker concluded that while it was likely that Ben’s physical needs were being met by his mother, given his young age, but added:
“When one draws back and looks at the situation with respect to Ben’s medium and long‑term welfare, in my view, the situation is different. Ben is steeped in the environment where certainly there is evidence that there is a very real risk that the family have some frankly ridiculous views, and views that put them directly in conflict with both the court, society in general and child protective services”.
Ben was therefore removed from his mother’s care and placed with his father on a temporary basis. At that point, the mother began to attend court hearings and admitted that she had been badly advised. The temporary change of residence order was made into a child arrangements order with an accompanying 12 month supervision order, requiring the involvement of social workers.
Read the full ruling here.