About this case:

• Citation:
  [2022] NIFam 28
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge David McFarland

The court found that the father had an “inability to prioritise his son’s welfare over his own obsession”, and his claims that video call contact was “terrible” did not move the court to reconsider the visitation and residence order in place.

Background

On 9 March 2022, the court made a child residence order for a period of three years in favour of his mother. The father was now seeking to have his child reside under a shared care arrangement, although primarily with him in England.

The child, who was 10 years old, had been subjected to legal proceedings for much of his life, beginning in 2012, when he was 11 months old.

The Family Care Centre in 2016 re-affirmed residence of the child to the mother, with a detailed and extensive order setting out contact arrangements in favour of the father. The father appealed, but this was dismissed in substance.

In 2021, a recovery order was required to force the father to return the child to his mother’s care, following an over-holding after Christmas contact.

The 2022 residence order also favoured the mother, although there was again an extensive contact regime in favour of the father. This included direct contact with the father in England over the Christmas/New Year period, alternating between the parents each year.

The father’s contact also included one week at Easter, four weeks over summer, half a week at Halloween, and the weekend nearest to the child’s birthday. Weekend contact in Northern Ireland was also directed if the father wished to avail of it. There was also to be indirect contact by video call every Friday at 6pm.

A statement/skeleton argument filed by the father comprised 15 pages, requiring the court to seek further clarification. Ultimately, he argued that the arrangement conditions in place were unsatisfactory.

The father had engaged in indirect contact with the child about four or five times, by video call, which he described as “terrible”. The father said that his son appeared to be very withdrawn and did not say much, which the father attributed to the mother being “very controlling”.

Consideration

The court noted that the child had been subject to a residence order with his mother since an English court decision in 2013. The father attempted on repeated occasions to replace this order with one favouring him. He failed on each occasion.

The court quoted sections of the extensive previous hearings dealing with this case:

The father’s application for leave, together with his supporting documents, did not establish that there had been any material change of circumstances since March 2022.

Rather, the court found that the problems that the mother faced flowed from the father’s “inability to prioritise his son’s welfare over his own obsession about the mother”. He had become “blinded to his son’s well-being”, because of his focus on the feud with the mother.

The court determined that he was unable to step back and see the damage he was doing to his relationship with his son, and “did not seem able to seek advice from others about how to develop that relationship and the relationship with the mother”.

Ultimately, the court held that the current situation “is a disaster for the child”. However, they also accepted that contact would be beneficial for the child, and the court had strived to facilitate this.

This was the basis for the extensive and complex programme of contact, which created a logistical burden for all involved. However, that burden was regarded as necessary because of the need to promote contact.

Conclusion

The question before the court was whether the father had an arguable case for the making of a residence order in his favour, and whether this had a realistic prospect of success. A residence order in favour of the mother has been in place for many years.

The courts had made rulings on residence on repeated instances, and on each occasion rejected the father’s application.

The father presented no new evidence that was not before the courts during the earlier hearings. The only potentially new evidence related to the father not availing of direct contact in England, as he was unable or unwilling to comply with court imposed conditions, and modest difficulties concerning the weekly indirect contact by video call.

Approaching the question in “as favourably a light as possible for the father”, it could not be said that he had an arguable case that had a realistic prospect of success.

Therefore, the court refused to grant the father leave to issue a residence order application in respect of his son.