Legal case notes: Re:G (Children) [2006] 1 FLR 771,CA.

The facts
The father of two children, aged 8 and 7, applied for parental responsibility, because he wished to be acknowledged in law as their father, and for contact. The mother opposed the application for parental responsibility, because she feared that the father would use parental responsibility as a weapon to interfere in the day-to-day management of the children’s lives. She also alleged that the father had been guilty of domestic violence towards her, and wanted contact to be supervised and, because she feared that he might take the children away from her, she wanted a residence order. At court, their respective counsel, after protracted and difficult negotiation, concluded an agreement. The mother agreed that the father should have parental responsibility, and he agreed that there should be a residence order in her favour.

Counsel invited the district judge to make an order in these terms, but the district judge refused to do so, on the basis of s. 1(5) of the Children Act 1959, which provides that the court should not make any order unless it considers that doing so would be better for the child than making no order at all. He referred to a ‘presumption’ against making an order and held that, in all the circumstances of the case, because the matter had been agreed, there was no longer a real dispute, no reason to upset the presumption. He refused simply to rubber stamp the agreement.
On appeal by the mother to the circuit judge, the circuit judge upheld the decision of the district judge, and the mother appealed to the court of appeal. The father supported her application for a residence order.

That s. 1(5) does not give rise to a presumption one way or the other. All that the section requires is that before the court makes any order it must ask the question, will it be better for the child to make the order than no order at all? If the judges in each case do just that, then they cannot go wrong, it being axiomatic that every case is different, and that each case will depend upon its own particular facts.

In the circumstances of this case, it was overwhelmingly obvious that it would be better for these children to have the order. It was the outcome of protracted and difficult negotiation. It was of importance to the mother, because it gave her the security of knowing that if her worst fears were realised, and there should be future difficulty in having the children returned to her, then that piece of paper gave everyone, be it the police or social services or a future court, the immediate and conclusive answer to the question, with whom should the children be living? It added to her peace of mind, and peace of mind is an integral and important factor in producing stability in the lives of children in the care of a parent. There was another important reason to make an order. It was the fruit of agreement, which had dissipated much of the unease and bitterness which had infected the litigation up to that stage. It was likely to dissipate, and had dissipated, the mistrust that each parent felt towards the other, and had promoted the settlement of arrangements for contact in the future. As Lord Justice Thorpe said: ‘It does not need great learning to accept that where parents can agree on future dealings with regard to the children, it is better for the children than having bitterly contested court proceedings. For that reason, this order was advantageous to the children.’

There was a third and critical factor which made it a case where the order should be made. Thorpe LJ said: ‘The court should not be astute to go behind agreements carefully negotiated in difficult questions of this sort. This negotiation covered all the matters I have indicated. It was not a case where there was no litigation and where, having come to an agreement, the parties issued proceedings simply for the sake of getting the imprimatur of the court’s judgment. Here, unless there was a very good reason to go behind the agreement the court should, in my judgment, have paid respect to the decision of the parents whose views were that an order would be beneficial to the management of their children’s lives and that that management would be more beneficial with the order than without it.’

Comment This case is useful support for those judges who, like the writer, regard it as very important that those who have the responsibility of caring for children, particularly the primary carer who bears this responsibility day in and day out, should have no unnecessary worries.

Such worries may be unreasonable, or even irrational, but they must not be made light of, provided that they do not subject the children to any risk. For example, a mother may have an unreasonable fear of the father’s choice of the children’s holiday activities. If he can be tactfully persuaded to arrange an acceptable alternative, the inconvenience is a small price to pay for preventing her worries from communicating themselves to, and unsettling, the children.

In this case there did not appear to be any factual basis for the mother’s fear that the father might take the children away from her, but Lord Justice Thorpe nevertheless took it seriously. If the court, by taking such worries into account sympathetically and imaginatively, can allay them, then the benefit to the children is very great indeed, with the additional benefit to the children, as in this case, that this may reduce the acrimony, and improve relations, between the parents.

Although the general rule is that agreements freely entered into between responsible and fully informed adults are binding and conclusive and the court will not interfere with them, where children are concerned the court always has the duty to consider whether agreements are in the interests of the children; it must not simply rubber stamp them. To this extent, the district judge was right.

However, this case shows the weight which the court is prepared to give to agreements involving children where such agreements are the result of careful negotiations between experienced and fully instructed family lawyers.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.