Contact Orders and Abusive Parents' Access to Children

Introduction

“After the boys died, I did not want to be here anymore. I only stayed on the earth to put right what has been put wrong. So many children are let down by a system that should protect them.”[1] This is a statement from Claire Throssell, a spokeswoman for Women’s Aid in a report which examined the circumstance in which 19 children and 2 women in 12 families were killed when abusive fathers were given contact access to their children.[2] Baroness Hale shared the same thought when she admitted that making contact happen and making it work is one of the most difficult and contentious challenges in the whole of family law.[3]

The issue of whether or not a contact order should be allowed where the father has abused the children and the mother has been difficult for the courts and have generated a lot of controversies. This paper discusses the courts’ approach when granting contact order and concludes that the law has not found a satisfactory approach to the issue of contact where there is a history of domestic violence perpetrated by the father against the child and the resident mother. It begins by analysing the guidelines for contact orders and discusses the three general principles within the s 1 Children Act 1989 (CA 1989). These are the welfare paramountcy; non-intervention principle and no delay principle. These will be followed by discussion of the substantive case laws relating to contact orders and draws a conclusion.

The Welfare Principles

A contact order is given by the courts (mediations by arrangements) and it requires the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other.[4] It is enforced against the resident parent. It requires settled arrangements between the resident parent and the non-resident parent. However, it does not compel the non-resident parent to have a contact with the child. In other words, there is no duty to have a contact with the child.[5] The contact order is not limited to only direct contact. It covers a variety of arrangements. This includes direct and indirect contacts. Direct contacts involve visits and sometimes the child is allowed to stay with the non-resident parents for few days. While indirect contacts could be telephone calls, written letters, emails, greeting cards such as birth days and Christmas cards, presents, social network communications, or webcams.

The s 11 of the Children and Families Act 2014 emphasises the presumption that parental involvement with the child’s upbringing would further his/her welfare. This comes with a requirement that the involvement does not put the child at risk of harm which means the child is not presumed to live with both parents. More often it is the mother who is given the care of the child.  According to Bracewell J in V v V (Contact: Implacable Hostility)[6], there is the general perception among the general public that the courts rubber-stamped cases by awarding the care of the children to the mother automatically and marginalised the father from the lives of their children. Similar views were expressed by Wall J in Re O (A Child) (Contact: Withdrawal of Application)[7] that the courts are not anti-fathers and pro-mothers or vice versa. Hunt and Macleod[8] observe that such perception put too much pressure on the courts. They find that there is no evidence that suggests the fathers are being prejudiced by the courts.

  However, the courts’ approach to order a contact is governed by three general principles within s 1 of the Children’s Act 1989. First, the court should consider the welfare of the child in relation to the his/her upbringing as paramount (paramountcy principles)[9]. This means that the welfare checklist set out in s 1 (3) of Children Act 1989 should be the sole statutory mandate that the court should follow. The argument that the contact is the right of the child and not the parents[10] is not strictly followed by the courts these days. It has been found that most the courts’ decisions concerning the contact of the child are not based on the right of the child alone.[11] For instance, in dismissing the appeal from the father in Re M (Contact: Welfare test)[12], Wilson J established that relevant welfare checklist set out in s 1(3) of the Children Act 1989 and ask whether the fundamental emotional need of every child have enduring relationship with both of his/her parents was outweighed by the depth of harm. In this case, it was found that the risk of harm to the child was too high if contact was allowed.

This means the court would only accept application of contact in the interest of the child (non-intervention principle). In Re L (A Child) (Contact: Domestic Violence)[13], Thorpe LJ and Butler-Sloss P accepted the principles set out in Re M[14] that the   courts’ main focus was not about the right to contact rather it would be based on the quality of the relationship with the non-residential parents. It recommended that more weight should be given to application for contact orders where there is a prospect of quality relationship. This makes it difficult for the court to allow contact where there is evidence of domestic abuse.  The courts should not be side-tracked by the presumption in favour of parental involvement.[15]

It is also equally important that the decision for contact should not be delayed (‘no delay principle’). Any unnecessary delay will prejudice the child’s welfare[16]. According to child psychologist, the child establishes attachment to the parent figure at the formative years (3 months to 7 years). If the child is removed from the parent, it will have serious psychological effect on the child.[17] Goldstein, Solnit and Freud[18] contend that contact with the non-residential helps the child to feel that he/she is not rejected. This creates bond and confidence as well as broadens the child’s relationship with the non-resident parent’s relatives. Nevertheless, Eckelaar[19] disputes this attachment theory. It is contended that it is not the frequency of the contacts but the quality of the contacts.[20] This was summed up by Hunt and Scanlan[21] that whatever advantages the contact have, there are equally disadvantages that contact should be denied.

However, these approaches conflict with the article 8 of the Human Rights Act 1998. It states that the right to family life includes the right of contact between parents and children. In Elsholz v Germany[22], it was held that the denial of the contact between a father and a son infringes articles 8 of the Convention Rights. It was also added that any contact should be justified in the interest of the child. Thus, in Sahin v Germany[23], it was held that the welfare of the child was paramount and must be given more weight than any other interest

Approach to Issue of Domestic Violence

Contacts where there is an evidence of domestic abuse perpetrated by the father normally lead to bitter disputes between the resident parent. In Av A (Children) (Shared Residence Order)[24], Wall J, highlighted the experience he encountered as the most bitter and protracted disputes in his career. The children had never experienced a time where the parents had lived together in harmony. Smith et al[25] studied the contacts of children with non-residential parents in stepfamilies and found that there were no direct tangible benefits to the children at all. This is contrary to the presumption of shared responsibilities and the idea that the involvement of the non-resident parents creates bond and confidence.

These studies[26] have prompted a lot of debates among academics, practitioners and the courts particularly when an abusive father is allowed to contact their children.[27] Trinder et al (2005) conducted a study in separated-homes. Out of the 59 contacts and structured 88 interviews conducted, they found out there were 56% of domestic abuse when abusive fathers were allowed to contact their children; 78% of the resident parents lived in fears of being abused further and 80% of the resident parents’ dispute contact orders given to the non-residential parents. The resident parents fear the fathers will use the contact order to continue the abuse.[28] Wall[29] also found there is a direct correlation between spousal abuse and child abuse. He asserts that there is 40-60% chance that fathers who abuses their wives will abuse their children as well. Hale LJ (now Baroness)[30]also admitted that the contact order allows vengeful men to continue to oppress and control women with full support of the system.

In 1997, Hester et al[31] conducted a national survey concerning issues of domestic contact and found a lot of women were subjected to unsafe contact arrangement. The arrangements entered into with the help of family court welfare officers and voluntary mediators often resulted into further threats and violence from abusive fathers. Following this survey, the Children Act Sub-Committee (CASC) issued policy guidelines for ‘good practice’ which outlined the approach the courts should adopt when there is an issue of domestic violence. That is where there is allegation of domestic abuse, the court should consider at the early stage, the nature and effect of the violence on contact if the allegation is proved or admitted. If so, there must be initial fact-finding. Where the findings are made, the court should consider the effect of the contact on the child and the resident parent. The court should also find out the motivation of the father in seeking contact and whether there are prospects of the violent father to change for the better. The policy is predicated on the image of a good character.

These guidelines were followed in the seminal case Re L (A Child) (Contact: Domestic Violence); re V (A Child); re M (A Child); re H (Children)[32]  where the Court of Appeal heard four cases from four fathers who had abused their children and the mothers. All the four appeals were dismissed. The Court of Appeal stressed that the abuses of the fathers do not automatically bar them from getting access to contact their children, but it is one of the important factors that will determine the success of their applications. The Court of Appeal set out a two-stage approach that the courts should follow when application for contact where there is an allegation of domestic violence. One, where there is an allegation of violence perpetrated by the father, the courts should investigate, at the initial stage, whether this is made out or not. The initial investigations should be a fact-finding hearing. Two, if the alleged abuse and the fear of the resident parent are proved and justified, respectively, the court should weigh up the risk involved and its impact on the child against any potential benefits of the contact. According to Butler-Sloss P, the courts should consider the conduct of the parents towards each other and also towards the children and the effect of the violence on the children and the resident parents. There must be adequate and reasonable steps to minimise the risk of harm and ensure the safety of the child and the resident parent is secured before, during and after contact.

These approaches were followed in Re G (Domestic Violence: Direct Contact)[33]. The father was charged with manslaughter for the death of the mother but whilst in prison, he sought contact and he preferred the child to stay with his sister in Poland. But the was child disturbed and suffered from nightmares and bedwetting as result of the father’s violent behaviour. It was held that the father was not suitable as a carer and based on the same factors he was not allowed to have a direct contact to the child. He was given an indirect contact where he could send Christmas and birthdays cards. Similarly, in AB v BB[34] the father assaulted the mother and he was sentenced to prison on two occasions (8 weeks and 28 months). After release, he sought direct contact to the children, but it was held that direct contact will not be in the interest of the children even if supervised. Sometimes the active involvement of the father in the child’s life is given more weight than the suffering the mother will go through when contact is allowed (Re J-S (A Child)[35]. In Re A (Suspended Residence Order)[36], even though the father abused the mother’s daughter, he was not a threat to his two children aged 8 and 12.

The same line of reasoning was adopted in in Re M[37] where the father subjected the mother and his three sons into a prolonged period of domestic abuse. They escaped and sought a refuge into another women’s house. The two elder sons were seen demonstrating/acting out how the father abused the mother. But Underhill LJ stated that the father’s history of domestic abuse did not deserve the drastic measures imposed by Honourable Lady Cushing. Barnet[38] asserted that the discovery of domestic abuse by the court is akin to finding ‘gold dust’. In Re A (A Child) (Supervised Contact Order: assessment of impact of domestic violence)[39], the mother’s appeal against an order for supervised contact of her daughter was dismissed by the Court of Appeal (family division). The judge separated the physical abuse of hitting the mother with a book from the sexual abuse and concluded that throwing a book was a low levelling risk. Therefore, the father did not pose a risk to the daughter even though the abuse was committed by the same person. It seems there are not enough safeguarding in these circumstances.[40]

Where the direct contact is not possible, the courts minimised and equalised[41] the risk in order to grant indirect contact. It seems the disregards the seriousness of the abuse committed by the fathers. In F, the father had personality disorder and had been abusive to the mother but that did not deter the court to grant him indirect contact.  And in Re L (Contact: Genuine Fear)[42] despite the other phobia of the father was allowed indirect contact order. It is only in extreme cases that the court will dismiss an application for direct or indirect contact. For instance, in Re C-P (A Child) (Contact: No Order as to Contact)[43], it was held that although the daughter had strong affection for her father, she was frightened of father’s behaviour and the court suspended both direct and indirect contact.

Assessment of the Courts’ Approach to Domestic Violence

Hunter and Barnett[44] assesses the guidelines given to the courts and Children and Family Court Advisory and Support Service (Cafcass) and concludes that while these are good guidelines, the Court of Appeal did not highlight the seriousness of the domestic violence because it will undermine the presumption of contact. It became apparently clear that the lower courts and the professional advisors were not following the guidelines set out in Re L[45] and the CASC, respectively. In some cases, there was no initial fact-finding hearings before direct contact was granted. For instance, Re M and B (Children: Domestic Violence)[46], despite violent behaviour of the father (serious sexual assault and rapes), Thorpe LJ found the instant judge did not consider the severe disadvantage of the bi-annual indirect contacts might have on the mother. It was clear that without the direct or indirect contact, the mother’s Post Traumatic Stress Disorder and secondary depression/Battered Woman’s Syndrome’ would recede gradually.  There was no initial fact-finding hearing and the CASC guidelines were not followed. This was not an isolated event. It was systemic failure[47].  The deficiency of the system was heavily criticised in Re K and S (Children) (Contact: Domestic Violence) [2006] 1 FRC 316.[48] Cafcass reporter filed a report in which she recorded allegations of violence and harassment, but these were not proven at the court and the criminal proceedings were abandon. The report was referred to an independent investigation. It was criticised in respect of procedure, method of work and technical requirement. That is her working practices. The reformed practice for the courts of trial to investigate as preliminary issue of disputed allegations of domestic violence and harassment had not been followed. That amount to serious deficiency in the trial process. The deficiency stems from the date of judgement and the mother had the opportunity to apply for permission to appeal within due time. The factors responsible for such deficiencies were given by Thorpe LJ in Re F (Restriction on Applications)[49]. He stated that the initial fact-finding process was clogging up the court system. It was a burden for the court proceeding which was overstretched with resources at the trial courts and it made it difficult to conduct investigations into the past events. It delayed courts proceedings and impact on the productivity of the family justice system.[50]

The deficiency of the system was not limited to inconsistency of the approach and the patchy guidelines. Her Majesty Inspectorate of Court Administration (HMICA)[51] evaluation showed the courts and the Cafcass were driven by presumption of contact and they preferred agreement rather than adjudication. The courts ignored their own principles that contact should only be in the best interest of the child. It disregarded the seriousness of domestic violence. All the Cafcass reports they revealed showed there was no risk assessment. Furthermore, women who raised domestic violence during the proceedings were viewed with suspicion, disbelieve and treated to be obstructive. The fathers were given the benefit of the doubt. The women were pressured to agree on contact because adjudication was considered to be adversarial and could lead to acrimony. Research conducted by National Association of Probation Officers[52] found that most of the fathers were granted access to contact regardless of father’s violent behaviours.[53] It suggested that they whole system need cultural attitudinal change.

Due to these failures and the pressures from women’s group, Wall LJ recommended to the President of the Family Division to reinforce the legal principles set out in Re L. In 2008, the President of the Family Division issued Practice Direction 12J[54] (recently revised by Sir James Munby, President of the Family Division), that ensures that where serious domestic violence is alleged or where there is a reasonable suspicion of it, the court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact. It also states that the court at all stages of the proceedings and more importantly at the First Hearing Dispute Resolution Appointment (FHDRA) should consider whether domestic abuse is raised as an issue by the parties or by the Children and Family Court Advisory and Support Service (Cafcass). Where there is an issue of domestic abuse, the court should identify the factual and welfare issues involved at the earliest stage. It should ascertain the nature of the allegation, admission or evidence of domestic abuse and give directions to enable contested factual and welfare issues to be tried as soon as possible and it must be done fairly.

However, a survey conducted by Hunter and Barnett[55] found that the implementation of PD12J was not highly effective because the policy was unable to change people’s attitude from ‘contact at all costs’ to contact where it is ‘safe and positive for the child’. The nineteenth century idea of paternal authority still exists. For instance, in Re Agar-Ellis v Lascelles[56], Mr Agar-Ellis removed his three children from his wife and placed them in the care of a protestant clergyman because he feared the wife would indoctrinate them with Catholic beliefs. It was held that a father has a legal right to control and direct the education and upbringing of his children until they attain the age of twenty-one unless by gross moral misconduct he forfeits his rights or by conduct of abdicating his paternal authority. This reasoning has persisted to these days. The paternal authority is hugely entrenched in family law[57]. In Re D (Minor) (Contact: Mother’s Hostility)[58], Balcombe LJ, stated that the court should be extremely slow in arriving at a conclusion where a child will be denied the opportunity of access to his/her natural father. It hinders all sort of approaches that could protect children and mothers from abusive fathers. 

Conclusion

The courts have not found a suitable approach to contact between abusive fathers and their children and the children’s mothers. The current approach is based on the best interests of the child (welfare principles). This approach does not offer adequate protection for the children and their mothers from the risk of further harm from abusive fathers. The courts’ perception about domestic violence and the presumption of contact must change to contact where it is safe and positive for the child.

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[1] Women’s Aid (2016) Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the family courts. Available at: www.womensaid.org.uk/childfirst. Accessed: 10/03/2018.

[2] Ibid n 1 (p 19)

[3] Re G (Children) (Residence: Same-Sex Partners) [2006] UKHL 43 (para 41).

[4] Children Act 1989, s 8(1).

[5] Re S (Contact: Promoting Relationship with Absent Parent) [2004] 1 FLR 1279.

[6] [2004] EWHC 1215 (Fam)

[7] [2003] EWHC 303 (Fam) (para 3)

[8] Hunt and Macleod (2008)

[9] Re W (Children) (Contact Order) [2012] EWCA Civ 999

[10] Re F (Minor: Access) [1990] 2 FLR 166, CA; Re F (Contact: Restraint Order) [1995] 1 FLR 956

[11] Jonathan Herring (para 2 p 567)

[12] [1995] 1 FLR 274

[13] [2000] 2 FLR 334; [2000] 2 FCR 404, CA

[14] Ibid n 12

[15] Re B (A Child) [2009] UKSC 5; Children and Families Act 2014

[16] Family Procedure Rule 2010, r 12.24

[17] Goldstein, Solnit and Freud (1996)

[18] Ibid n 17

[19] Eckelaar (2002)

[20] Pryor and Daly (2001)

[21] Fortin, Hunt and Scanlan (2012)

[22] [2000] 2 FLR 486; 25735/94 ECtHR

[23] [2002] 3 FCR 321; [2001] ECHR 30943/96 ECHR

[24] [2004] EWHC 142 (Fam)

[25] Smith et al (2001)

[26] Ibid n 25

[27] Choudhry and Herring (2010)

[28] Ibid n 1 (p 19)

[29] Wall (1997)

[30] Hale LJ (Now Baroness) (1997)

[31] Hester et al (1997)

[32] [2001] Fam 260

[33] [2000] All ER (D) 2530

[34] [2013] All ER (D) (Fam)

[35] [2002] EWCA Civ 1028, [2003] 1 FLR 399

[36] [2010] FLR 1679 (Fam)

[37] Ibid n 12

[38] Barnet (2014)

[39] [2015] EWCA Civ 486

[40] Masson (2006)

[41] Ibid n 8

[42] [2002] 1 FLR 621

[43] [2000] Fam Law 699

[44] Hunt and Barnett (2013

[45] Ibid n 32

[46] [2001] 1 FCR 116

[47] Hunter and Harrison (2003

[48] No fact-finding hearing was conducted, and direct contact was ordered. However, it was unanimously agreed that there was no judicial determination and criminal proceedings for the alleged violence and harassment.

[49] 2005 2 FLR 950. It was held that in exceptional circumstances a court might impose the leave restriction under s 91 (14) of the ChA 1989 where the child welfare is required and in this instance case, the order had not been wrongly applied.

[50] Hunter and Barnett

[51] HMICA (2005)

[52] National Association of Probation Officers (NAPO) (2002) Contact, Separation and the Work of Family Court Staff. London: NAPO

[53] Ibid n 44

[54] Revised Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Violence and Harm (PD12) (originally Practice Direction: Residence and Contact Orders: Domestic Violence and Harm 2 FLR 1400)  http://www.justice.gov.uk/courts/procedure-rules/family/practice_dorections/pd_part_12j

[55]Ibid n 44

[56] [1878] 24 ChD 317

[57] Ibid n 43

[58] [1993] 2 FLR 1