The Court of Appeal has dismissed a father’s appeal against the High Court’s refusal to make enforcement orders concerning his access to the parties’ eldest child. It also dismissed the mother’s cross-appeal against the direction that family therapy continue.
In a judgment delivered electronically on 21 March 2024, Mr Justice Allen, with whom Ms Justice Whelan and Mr Justice Meenan agreed, said the High Court judge had not been persuaded that the mother was responsible for the breakdown in contact. The father had sought enforcement of an existing access order, including additional time with the child and orders requiring therapeutic support. His motion also sought the mother’s attachment and committal if she continued to frustrate contact.
The parents have four children, who were ordered to reside with their mother under a 2020 divorce judgment. The access arrangements worked for about two and a half years before breaking down in September 2022. The eldest child, identified in the judgment as Child A, then about 13, did not stay with her father and later said she did not want face-to-face contact at that time, while continuing to communicate by text.
The father alleged that the mother manipulated and pressured Child A and breached the access order. The mother said the child had independently refused contact and that she had encouraged her to go. She identified the father’s announcement that he intended to remarry as a factor affecting the children.
The High Court heard oral evidence from both parents and a court-appointed expert who reported Child A’s views. The judge found those views authentic and was not satisfied that the mother had influenced them. He found that neither parent could be absolved of responsibility for the contact breakdown, but that the primary cause was not the mother’s conduct. The Court of Appeal noted that the father did not appeal the factual findings underlying that conclusion.
The appeal court said the father had to establish an unreasonable denial of access. It rejected the argument that the mother’s role as primary carer gave her a different legal obligation from the father’s in a shared parenting arrangement. The court also explained that enforcement orders under section 18A of the Guardianship of Infants Act 1964 can include counselling or parenting support, and that such intervention may be available even where a denial of access was reasonable. It did not decide whether interlocutory orders are available under that section, as that issue had not been argued.
The court dismissed the mother’s cross-appeal, noting that she had invited the High Court to continue the therapy and that there was sufficient evidence to support the direction. It made no criticism of her actions in situations where Child A became distressed. The court’s costs observations were provisional: it said the mother appeared entitled to the costs of resisting the appeal and the father to the costs of the cross-appeal, subject to any submissions within 14 days.