1998 March – Birth of Ben Boyd
1998 - Applicant diagnosed with Post Natal Depression
1999 Dec – Respondent treated for superficial head cuts in A & E
2000 July - Respondent treated for head cuts in A & E
2002 April - The marriage breaks down, applicant leaves the family home
2002 May - Respondent granted residence order
2002 July - Respondent granted non-molestation order
2004 Sept - Contact re-established between the applicant and child
2004 August - 2006 March - Applicant attends alcohol support group
2006 December - Contact stopped by the respondent
2006 December - School raise concerns about Ben’s behaviour
2006 January - Ben diagnosed with ADHD
PREVIOUS CONTACT ARRANGEMENTS
- Following the marital separation in 2002, contact was erratic. However from September 2004 contact between the applicant and Ben was re-established; contact mostly took place in the Ben’s home. This too has been inconsistent at times.
- Contact ceased in December 2004 due to the respondent’s concerns regarding the applicant’s anger towards Ben and her alcohol consumption.
CURRENT CIRCUMSTANCES
- A Residence Order has been in effect in favour of the respondent since May 2002.
- There has been no significant contact between the applicant and Ben since December 2006 although the applicant expresses a desire to re-establish the relationship.
- The applicant has expressed the desire for overnight contact and to take Ben to Spain on holiday. The respondent and the child have voiced concerns about this.
APPLICANT’S VIEW ABOUT CONTACT
- The applicant proposes contact with Ben to include overnight stays at her home. She has organised and decorated a bedroom for him and has included age appropriate games.
- The applicant stated an awareness that routine is important in managing Ben’s ADHD although she states she would also like to inject ‘fun’ into his routines. She was however, unable to elaborate further on ADHD and the implications of this for Ben.
- The applicant acknowledged that she had an unpredictable past; she states she suffered from Post Natal Depression and initially had difficulty bonding with Ben. She states when the marriage broke down in April 2002 she felt particularly low and it was therefore in Ben’s best interest to be cared for by his father.
- The applicant informed me that while she has struggled with alcohol for a number of years she is now committed to making a change. She has attended a support group for 2 years and claims she has not been drinking heavily for 3 years, although she states she has had some setbacks at times. The applicant believes her relationships in the past have impacted on her ability to function and that now she is on her own she can cope better.
- The applicant states she has never been drunk while looking after Ben and that the non molestation order granted to the respondent in 2002 has no bearing on contact at present.
RESPONDANT’S VIEWS ABOUT CONTACT
- The respondent states his objection to contact is the negative impact on Ben. The respondent reports that Ben became distressed in 2002 after his wife appeared drunk at their home; he reports Ben was upset and clingy to him in the subsequent days.
- The respondent states that during the most recent contact in 2006 Ben was upset in relation to an incident at the applicant’s home concerning an ‘X Box’. Following this incident he reports Ben became aggressive and bit another child at school; the respondent sees this as the child venting his anxieties about contact.
- The respondent has also voiced concerns about the applicant’s struggle with alcohol stating that she has a pattern of binge drinking. He reports that he discovered the applicant ‘drunk’ on a previous occasion when contact was supposed to take place.
- The respondent is of the opinion that the applicant is not capable of responding to Ben’s needs especially in regards to the ADHD, his vulnerability, his need for routine, and the aggression he demonstrates when upset.
- The respondent states that he controls Ben’s ADHD without medication by sticking to familiar routines. He fears the applicant could impact negatively on this particular aspect of Ben’s welfare.
- The respondent states that he is in a stable relationship but has no plans to co habit as Ben is his priority. However he states that his girlfriend spends considerable time with Ben and that particular relationship is positive for Ben.
ARTICLE 3(3) sets out the Welfare Checklist as follows:
The ascertainable wishes and feelings of the child concerned
- Using an age appropriate approach, I engaged with Ben to ascertain his wishes and feelings. In my professional capacity I deem Ben to be Gillick competent.
- I cannot rule out that Ben does not want contact with the applicant but he does have concerns about being alone with her. He stated he would like to go to Spain with the applicant but only if the respondent goes also.
- When referring to contact Ben verbalised anxiety about the applicant’s anger. He referred to an incident whereby he claims the applicant threw his ‘X Box’ game controls and broke them. Ben has also referred to the applicant calling the respondent names such as ‘bastard’.
The physical, emotional and educational needs of Ben
- Ben was diagnosed with ADHD in January 2006. The respondent reports that that Ben can be become aggressive if he feels vulnerable or in unfamiliar situations. Ben has difficulty relating to people and making friends.
- The ADHD is being managed without medication at this stage in conjunction with the school and the respondent. Ben is reported to appreciate familiar routines and clear boundaries. He attends mainstream school and is described as doing well.
- Previous contact arrangements have had an averse affect on Ben’s well being. There have been confirmed incidents at school whereby Ben has acted out his anxiety regarding contact aggressively towards another pupil.
- Ben has conveyed that during contact his emotional needs have previously not been met appropriately or consistently.
The likely effect on Ben of any change in circumstances
- Ben is settled in school and home and enjoys the relationship with the respondent and his girlfriend. The routine set by the respondent and the support from the school have ensured stability regarding Ben’s ADHD and has helped to avoid medicating.
- Any change of circumstances could have significant impact on Ben’s well being. The implications of ADHD are significant when reaching a decision about changes in Ben’s circumstances.
Any harm which he has suffered or is at risk of suffering.
- The parties have referred to an incident where the applicant is alleged to have thrown game controls when angry. This example has heightened the problems regarding the relationship between the applicant, child and the respondent. It served to end that present contact arrangement.
- The Trust also has concerns that Ben could be suffering emotionally if he continues to receive misleading information about the court processes. Ben has informed me that the applicant has told him his father will not want him and that he will be in trouble with the judge if he does not agree to contact. Ultimately such misinformation could affect Ben’s self esteem and any likelihood of contact being a positive experience for him.
- The most recent contact Ben has had with the applicant in November and December 2006 is reported by the respondent as having an adverse effect on Ben’s behaviour. Ben has also verbalised his upset at the last contact.
- However Bowlby’s studies (1973) suggest that relationships effect children’s physical, intellectual and psychological development. Ben is currently in jeopardy of altogether losing the positive benefits that a maternal attachment could bring.
The child’s age, sex, background and any characteristics of which the court considers relevant
- Ben is 9 years old and male. He has a diagnosis of ADHD, which is being managed at present without medication. Ben has lived with his father for all of his life and contact with his mother has been erratic to date.
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Because Ben has ADHD he has typically an elevated degree of emotional reactivity that all parties, family, professionals and the court must take into consideration (Journal of Affective Disorders, 1998, 51:81-91).
How capable of meeting his needs are each of the parents and any other person in relation to whom the court considers the question to be relevant
- I am satisfied that the respondent is fully capable of meeting all of Ben’s needs at present.
- The Trust recognises that the applicant is making an effort to re-establish the relationship with Ben; she has decorated a bedroom for Ben and is attempting to include him in her home and her life. She has endeavoured to address her issues surrounding alcohol.
- However there remain concerns about how capable she is regarding Ben’s needs. She has to date been unable to provide stable and engaging contact with Ben.
- The applicant at present does not appreciate the difficulties or implications for the child regarding his diagnosis of ADHD, his specific needs or indeed how these needs can be aversely affected. She also lacks insight into the emotional needs of Ben.
- The Trust therefore is not satisfied that the applicant is capable of meeting the needs of Ben at this stage.
No Order Principle
- Article 3 of the Children Order (NI) 1995 states the court is not to make an order, unless to do so would result in positive benefit to Ben.
Range of Powers available to the court
- Grant a Contact Order to the applicant
Refuse the application for a Contact Order
Grant a supervised Contact Order for an interim trial period
Conclusion
- Ben is in a caring, constructive, stable environment and in keeping with the paramountcy principle it is imperative that his present arrangements are not destabilised or endangered so as to occasion him further distress.
- While there is an obligation to consider the rights of the applicant and respondent under Article 8 of the Human Rights Act 1998, case law verifies that contact is the right of the child and not of the parents.
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R Re Shared Residence Application 2002 NIFam 22 24 October 2002 Ref GILC3787: Justice Gillen declares the court must consider the interests of the applicants only in so far as they affect the child’s welfare stating that ‘...the approach I find to be consistent with a proper appraisal of the right to family life to which each parent is entitled under article 8 of the ECHR, the parties must realise that contact is the right of the child and not the right of the parent.’
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Yousef v The Netherlands [2003] 1 FLR 210 at 221 para. 73, holds an instructive statement from the ECtHR:
"The Court reiterates that in judicial decisions where the rights under article 8 (of the Convention) of parents and those of a child are at stake the child's rights must be the paramount consideration. If any balancing of interest is necessary the interest of the child must prevail."
- However there are implications for Ben should there be no contact with the applicant, bearing in mind the significance that positive parental attachments bring to a child’s development.
- While the Trust seeks to achieve contact between the applicant and Ben there is a need to balance this in terms of the benefits of contact for the long term welfare of Ben.
- This report recognises that the applicant is attempting to make positive changes in her life, yet concerns remain about the applicant’s ability to meet the needs of Ben.
- There is also consideration to be given to the acrimonious relationship between the applicant and the respondent with a history of violence and the effects that this has had on Ben.
Recommendations
- With regards to overnight contact it is the view of the Trust that it would not be in the best interests of Ben that he be returned to a situation which has caused him distress. Ben’s concerns about contact must be given consideration.
- As Ben has reacted negatively in the past to contact and has specific concerns about the applicant’s anger, it might therefore be beneficial to facilitate supervised contact in the Family Contact Centre in Newcounty.
- Ben may ultimately benefit in the long term from re-establishing the relationship with the applicant but bearing in mind the previous distress this has caused him, supervised contact could offer a level of protection against any negative effects.
- In the best interests of Ben the court might wish to stipulate the applicant avail of some of the parenting services available within the Trust in order to encourage a more positive approach to parenting, something Ben has expressed concerns about. ParentWise offer a ten week course to parents of children with ADHD.
- Finally the Trust proposes interim contact should take the form of one and a half hours on a Saturday morning in the Family Contact Centre in Newcounty to be reassessed in court in 8 weeks.
Summary of Recommendations
- Interim Supervised Contact Order (1.5 hours in Family Contact Centre)
- The applicant to avail of support in regards to ADHD and positive parenting (ParentWise)
- Court to reconsider contact in 8 weeks by means of follow up reports from ParentWise, the Contact Centre and the relevant Reporting Officer to the Court.
___________________
SHEILEEN LAVERY
Student Social Worker
REFERENCES & BIBIOGRAPHY
BOOKS
O’Halloran, K. (2001) Family Proceedings in Northern Ireland 2nd edition of a Guide for Lay Magistrates, Belfast, Court Service (NI)
JOURNALS
Geller B, Williams M, Zimerman B, Frazier J, Beringer L, Warner KL. Prepubertal and early adolescent bipolarity differentiate from ADHD by manic symptoms, grandiose delusions, ultra-rapid or ultradian cycling. Journal of Affective Disorders, 1998, 51:81-91.
CASE LAW
C Re no contact order 2002 NIFam 14 17 may 2002 ref GILB3190
Yousef v The Netherlands [2003] 1 FLR 210 at 221 para. 73
LEGISLATION
DOH 1998 Human Rights Act, HMSO, London
DOH 1995 Children Order (NI), HMSO, London
WEB RESOURCES
CAFCASS (Children and Family Court Advisory and Support Service) (n.d.) ‘The Children and Family Reporter: Helping Families to Reach Sensible Arrangements for Their Children’;
accessed 21/11/2007
