Clear as mud?

Best endeavours – what does it actually mean? This is the question I posed to my own friends and family recently. You perhaps won’t be surprised to read they each came up with something different and one person even gave one answer in the evening before changing it the following morning!

So, a grey concept – one which surely cannot be found in court orders describing the actions a parent must take in relation to their children?

In fact the phrase is frequently used and has recently been the subject of a Court of Appeal case.

The case relates to a mother failing to use her ‘best endeavours’ to return two of the parties’ children to their father. I won’t delve into the history of the case but it did get me thinking about the difficulties involved in enforcing an order requiring ‘best endeavours’ to be used.

If we do not know what best endeavours means how can we know if they are being used? If we cannot ascertain this, how are the courts to enforce their own orders?

Having argued that best endeavours had not been used, father then turned to the suggestion that, by not returning the children to him, their mother had, quite simply, not fulfilled the order and should therefore be held in contempt of court.

Now the father was not successful in this argument but, had he been, his children’s mother could have been sent to prison.

Harsh? Quite possibly, especially given that the children involved were clear and adamant they did not wish to return to their father. This is perhaps given more weight by the fact they were aged 15 and 13 at the time of the initial return order and 17 and 15 by the time of the Court of Appeal ruling.

So, what is to be done in this situation? Is it best, where it is anticipated that someone will fail to comply with an order, simply not to make an order? The President of the Family Division did not think so; rather, he thought that declining to make a return order simply because it may not bear fruit was not a justified approach.

No clearer then and back to grappling with ‘best endeavours’. Or not. Enter another recent Court of Appeal case.

Here, father sought an order for his 12 year old son to spend time with him. The Court of Appeal recognised that father posed no risk to his son, that it’s normally in a child’s best interests to have a relationship with both parents and that all parents have a responsibility to do their best to meet their child’s needs in relation to the provision of contact.

In this case, mother had formed a very negative view of father and thought he was dangerous in respect of their son’s welfare. Indeed contact between father and son was recognised as worsening mother’s mental health.

The son had adopted his mother’s view of his father and was consistently and adamantly saying ‘no’ to any contact with him. This was despite having had a perfectly warm and loving relationship before mother and father had separated. Sound a little familiar?

You would think, based on the reasoning in the earlier case, the court would make an order for contact, requiring mother to use her best endeavours to assist and encourage this. Not so.

The Court of Appeal here considered that the 12 year old son’s position was clear; ‘no’, being his very clear approach, was classed as a formidable obstacle in the way of father’s application for contact and, as such, the earlier court had been correct to refuse contact between father and son.

Fair? Reasonable? Right? All examples of other ambiguous and subjective terms and so for you to answer.

Both cases are a clear reminder that family law is, unlike some other legal disciplines, full of grey areas and discretion. Despite similarities, cases do turn on their own facts and lead to outcomes which, on the face of it, can seem imbalanced and unfair. Terms such as ‘best endeavours’ are used frequently and can lead to disagreement and uncertainty.

Ultimately family law is unique; it is a truly ‘human’ area of legal practice and as a result one which, I think, will always remain a little ‘clear as mud’.