A Cautionary Winter’s Tale: Separated Parents and ‘Snowflakes’ 

Published on 14 February, 2024 | Emma Hubbard

All it takes is placing one foot outside the front door in the morning to show that we are still in the grip of winter.

Low light, lower temperatures and even the odd flurry of snow are very much the order of the day at this time of year.

Usually, of course, it’s the impact of seasonally inclement weather which makes the pages of our national newspapers.

Yet a different type of snowflake has generated coverage of the family courts in recent weeks.

The Times has reported how one judge has warned against over-protective parents risked turning their children into “snowflakes” (https://www.thetimes.co.uk/article/b5257dfd-9f67-4654-89f4-e8190f8eed97?shareToken=aa7564b3c6d9d31134867396cae8c239).

Judge Rupert Lowe’s remarks came during his sentencing of a father who had breached the terms of a non-molestation order when dropping his two children, who are aged eight and nine, at their mother’s home.

Kevin Reynolds had driven within 30 metres of his former partner’s home because he didn’t want anything to happen to them which would mean his being unable to see them.

It is a story which had me reflecting both on the judge’s comments about this particular case and also the imposition of non-molestation orders more generally.

Judge Lowe’s comments – including a critical comparison with more liberal parenting methods of the early 1970s – will no doubt have prompted a raising of more eyebrows than my own.

Nevertheless, he was right to recognise that the matter had only appeared before him because Mr Reynolds breached the terms of a court order.

Provision of non-molestation orders became possible because of the Family Law Act 1996 (https://www.legislation.gov.uk/ukpga/1996/27/part/IV/crossheading/nonmolestation-orders).

They are not only a feature of cases involving physical abuse but can be granted in circumstances in which there are threats or harassment of one individual by another.

Over the course recent years, it is undeniable that they have become a much more frequent feature of family law.

In 2022 – the most recent year for which data is available – some 36,257 non-molestation orders were put in place, an increase of 88 per cent in a decade (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2022/family-court-statistics-quarterly-april-to-june-2022#domestic-violence-remedy-orders).

Caution has been urged, though, in how they are used, particularly in relation to specific clauses adding exclusion zones – around, for instance, the home of the person applying for an order – or prohibiting direct contact.

When handing down a ruling in one 2014 matter, in fact, Mr Justice Peter Jackson insisted that these kind of detailed provisions “should not be routinely included” in non-molestation orders as they amount to “serious infringements of a person’s freedom of action” (https://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html).

They would require, he suggested, “specific evidence to justify them”.

That last point was reinforced by another useful decision handed down by Mrs Justice Lieven in March last year (https://caselaw.nationalarchives.gov.uk/ewfc/2023/46).

She outlined her concern about the rise in non-molestation orders, stating her belief that they were often sought by those merely “upset at the end of a relationship”.

The conduct complained about, she stressed, “has to be sufficient to justify the intervention of the court. “

Equally, there has to be recognition by those made subject to orders which are granted that their terms must be observed in full.

Some of the difficulty which occurs is down to people not grasping what the practical implications are – partially, I suspect, as a result of not receiving clear legal advice at the time that the orders are made.

As a parent myself, I completely appreciate the importance of keeping children safe. However, there needs to be an element of common sense shown by both parents.

I have been involved in orders being granted which allow for children to be dropped off right outside the home of a resident parent, who remains indoors while children walk inside as the other non-resident parent remains in their car outside.

There is no direct contact between the two and, therefore, no problems arise.

Just as with every other aspect of child arrangement procedures, the priority is on parents putting the interests of their children first rather than their own.

After all, the opening lines of the Children Act 1989 set out that the “child’s welfare shall be the court’s paramount consideration” (https://www.legislation.gov.uk/ukpga/1989/41/section/1).

Failing to abide by that principle only stores up trouble which can have lasting consequences.

Someone who breaches a non-molestation order can be viewed not as a good parent but an individual who is not respecting the court.

As well as actually jeopardising their liberty, they cause the court to weigh up whether any other orders which might be necessary will also be ignored.

That can impact future child arrangements and prevent a full and proper relationship between parents and their children.