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Law - R L Domestic Violence

[2000] 2 FLR 334 Court of Appeal

Dame Elizabeth Butler-Sloss P, Thorpe and Waller LJJ. Date19 June 2000

Catchwords Contact – Domestic violence – Welfare of child – Refusal of direct contact

Headnote In each case a father’s application for direct contact had been refused by the judge, against a background of domestic violence between the parents, and the father had appealed. The court considered the report of the Children Act Sub-Committee of the Advisory Board on Family Law on parental contact in domestic violence cases, and a joint expert report prepared by two child psychiatrists for the Official Solicitor.

Held – dismissing all four appeals –

(1) A court hearing a contact application in which allegations of domestic violence were raised should consider the conduct of both parties towards each other and towards the children, the effect of the violence on the children and on the residential parent, and the motivation of the parent seeking contact. On an application for interim contact, when the allegations of domestic violence had not yet been adjudicated on, the court should give particular consideration to the likely risk of harm to the child, whether physical or emotional, if contact were granted or refused. The court should ensure, as far as possible, that any risk of harm to the child was minimised and that the safety of the child and the residential parent was secured before, during and after any such contact. Family judges and magistrates needed to have a heightened awareness of the existence and consequences for children of exposure to domestic violence between their parents or other partners.

Where allegations of domestic violence were made which might have an effect on the outcome, those allegations must be adjudicated upon, and found proved or not proved. There was not, and should not be a presumption that on proof of domestic violence the offending parent had to surmount a prima facie barrier of no contact, but such violence was a factor in the delicate balancing exercise of discretion carried out by the judge applying the welfare principle and the welfare checklist in s 1(1) and (3) of the Children Act 1989. In cases of proved domestic violence, the court had to weigh the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact. The ability of the offending parent to recognise his past conduct, to be aware of the need to change and to make genuine efforts to do so would be likely to be an important consideration when performing that balancing exercise.

(2) Where there was a conflict between the rights and interests of a child and those of a parent, the interests of the child had to prevail under Art 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Statutory provisions considered Statutory provisions considered;
Child Care Act 1980, s 12F(1)
Children Act 1989, ss 1, 8, 11, 34
Family Law Act 1996, s 11(4)
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Arts 8, 14
Hague Convention on the Civil Aspects of International Child Abduction 1980 [2000] 2 FLR 335
United Nations Convention on the Rights of the Child 1989, Art 9(3)
Cases referred toCases referred to in judgment
A (Contact: Domestic Violence), Re [1998] 2 FLR 171, FD
A v C [1985] FLR 445, FD and CA
A v L (Contact) [1998] 1 FLR 361, FD
B (Contact: Stepfather’s Opposition), Re [1997] 2 FLR 579, CA
D (A Minor) (Contact: Mother’s Hostility), Re [1993] 2 FLR 1, CA
D (Contact: Reasons for Refusal), Re [1997] 2 FLR 48, CA
Daniels v Walker (Practice Note) [2000] 1 WLR 1382, CA
F (Mental Patient: Sterilisation), Re [1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ER 545, sub nom F (Sterilization: Mental Patient), Re [1989] 2 FLR 376, HL
H (Contact: Domestic Violence), Re [1998] 2 FLR 42, CA
H (Minors) (Access), Re [1992] 1 FLR 148, CA
H (Minors) (Local Authority: Parental Rights) (No 3), Re [1991] Fam 151, [1991] 2 WLR 763, sub nom H (Illegitimate Children: Father: Parental Rights) (No 2), Re [1991] 1 FLR 214, sub nom H and Another (Minors) (Adoption: Putative Father’s Rights) (No 3) [1991] 2 All ER 185, CA
Hendriks v Netherlands (1982) 5 EHRR 223, ECHR
Hokkanen v Finland (1994) 19 EHRR 139, [1996] 1 FLR 289, ECHR
J and Another v C and Others [1970] AC 668, [1969] 2 WLR 540, [1969] 1 All ER 788, HL
Johansen v Norway (1996) 23 EHRR 33, ECHR
KD (A Minor) (Ward: Termination of Access), Re [1988] AC 806, [1988] 2 WLR 398, [1988] 1 All ER 577, sub nom KD (A Minor) (Access: Principles), Re [1988] 2 FLR 139, CA and HL
M (Contact: Violent Parent), Re [1999] 2 FLR 321, FD
M (Contact: Welfare Test), Re [1995] 1 FLR 274, CA
M v M (Child: Access) [1973] 2 All ER 81, FD
Marckx v Belgium (1979) 2 EHRR 330, ECHR
O (Contact: Imposition of Conditions), Re [1995] 2 FLR 124, CA
P (Contact: Discretion), Re [1998] 2 FLR 696, CA
Porchetta v Porchetta 1986 SLT 105, IH, Ct Sess
S v M (Access Order) [1997] 1 FLR 980, HL(S)
S v S [1962] 1 WLR 445, sub nom S v S and P [1962] 2 All ER 1, CA
CounselRe L (Contact: Domestic Violence)
Margaret de Haas QC and Ruth Sutton for L’s father
Ernest Ryder QC and Julia Cheetham for L’s mother
Jeremy Posnansky QC as amicus curiae
Re V (Contact: Domestic Violence)
Charles Howard QC for V’s father
Andrew Bagchi for V’s mother
Jeremy Posnansky QC as amicus curiae
Re M (Contact: Domestic Violence)
Richard Bates for M’s father
John Ker-Reid for M’s mother
Jeremy Posnansky QC as amicus curiae
Re H (Contact: Domestic Violence)
Ayesha Hasan for H’s father
Allan Levy QC and Jane Davies for H’s mother
Jeremy Posnansky QC as amicus curiae
[2000] 2 FLR 336
Cur adv vult

DAME ELIZABETH BUTLER-SLOSS P: These four appeals on issues arising out of contact applications have certain features in common. In each case a father’s application for direct contact has been refused by the circuit judge against a background of domestic violence between the spouses or partners. We are grateful to Wall J, the Chairman of the Children Act Sub-Committee of the Advisory Board on Family Law, for permission to look at their report on parental contact in domestic violence cases and their recommendations recently presented to the Lord Chancellor and now published (A Report to the Lord Chancellor on the Question of Parental Contact in Cases where there is Domestic Violence (Lord Chancellor’s Department, 12 April 2000)). At our request, the Official Solicitor acted as amicus in each case and we are most grateful to him for instructing Dr J. C. Sturge, consultant child psychiatrist in consultation with Dr D. Glaser, consultant child psychiatrist to provide a joint report (Contact and Domestic Violence – the Experts’ Court Report [2000] Fam Law 615) and to advise on the four appeals and to Mr Posnansky QC, on behalf of the Official Solicitor, for the helpful arguments addressed to us. We heard the four cases together and reserved judgment in each case. I propose to comment on the report on domestic violence (the report), and the expert psychiatric evidence (the psychiatric report) presented to us before turning to the facts of each appeal.

The report

The report by the Children Act Sub-Committee underlined the importance of the question of domestic violence in the context of parental contact to children. Domestic violence takes many forms and should be broadly defined. The perpetrator may be female as well as male. Involvement may be indirect as well as direct. There needs to be greater awareness of the effect of domestic violence on children, both short-term and long-term, as witnesses as well as victims and also the impact on the residential parent. An outstanding concern of the court should be the nature and extent of the risk to the child and to the residential parent and that proper arrangements should be put in place to safeguard the child and the residential parent from risk of further physical or emotional harm. In cases where domestic violence is raised as a reason for refusing or limiting contact, the report makes it clear that the allegations ought to be addressed by the court at the earliest opportunity and findings of fact made so as to establish the truth or otherwise of those allegations and decide upon the likely effect, if any, those findings could have on the court’s decision on contact. The report set out suggested guidelines to which I shall refer at the end of this judgment.

The psychiatric report

Dr Sturge and Dr Glaser in their joint report to this court had the opportunity to see the responses to the Sub-Committee consultation paper and to read the report and recommendations. Their psychiatric report was read and approved by a number of other consultant child psychiatrists and incorporates the views of a distinguished group of consultants. We are extremely grateful to them for their wise advice.
They set out the psychiatric principles of contact between the child and [2000] 2 FLR 337 the non-resident parent. They saw the centrality of the child as all-important and the promotion of his or her mental health the central issue amid the tensions surrounding the adults in dispute. The decisions about contact should be child-centred and related to the specific child in its present circumstances but acknowledge that the child’s needs will alter over different stages of development. The purpose of the proposed contact must be overt and abundantly clear and have the potential for benefiting the child in some way. The benefits of contact to the father were set out in detail including, the importance of the father as one of the two parents, in the child’s sense of identity and value, the role model provided by a father and the male contribution to parenting of children and its relevance to the child’s perception of family life as an adult.

They set out many different purposes of contact, including: the maintenance or reparation of beneficial relationships, the sharing of information and knowledge and the testing of reality for the child. They set out the more limited advantages of indirect contact which included: experience of continued interest by the absent parent, knowledge and information about the absent parent, keeping open the possibility of development of the relationship and the opportunity for reparation.

They pointed out the importance of the manner in which indirect contact was managed by the resident parent.

They identified a number of risks of direct contact. The overall risk was that of failing to meet and actually undermining the child’s developmental needs or even causing emotional abuses and damage directly through contact or as a consequence of the contact. Specifically that included: escalating the climate of conflict around the child which would undermine the child’s general stability and sense of emotional well being. The result was a tug of loyalty and a sense of responsibility for the conflict in all children except young babies which affected the relationships of the child with both parents. There might be direct abusive experiences, including emotional abuse by denigration of the child or the child’s resident carer. There might be continuation of unhealthy relationships such as dominant or bullying relationships, those created by fear, bribes or emotional blackmail, by undermining the child’s sense of stability and continuity by deliberately or inadvertently setting different moral standards or standards of behaviour, by little interest in the child himself or by unstimulating or uninteresting contact. They indicated a series of situations where there were risks to contact: where there were unresolved situations, where the contact was unreliable and the child frequently let down, where the child was attending contact against his wishes so he felt undermined, where there was little prospect for change such as wholly implacable situations, where there was the stress on the child and resident carer of ongoing proceedings or frequently re-initiated proceedings.

These are all matters with which experienced family judges and magistrates in family proceedings courts are all too familiar. I have, for my part however, found the outline provided by the psychiatric report very helpful.

Domestic violence situations

The psychiatric report then moved to the central issue of domestic violence. They agreed with the Sub-Committee report that there needs to be greater [2000] 2 FLR 338 awareness of the effect of domestic violence on children, both short term and long term, as witnesses as well as victims. The research was entirely consistent in showing the deleterious effects on children of exposure to domestic violence and that children were affected as much by exposure to violence as to being involved in it. All children were affected by significant and repeated inter-partner violence even if not directly involved. Research indicates that even when children did not continue in violent situations emotional trauma continued to be experienced. The context of the overall situation was highly relevant to decision making. The contribution of psychiatric disorder to situations of domestic violence and emotional abuse must be considered. In situations of contact there might be a continuing sense of fear of the violent parent by the child. The child might have post-traumatic anxieties or symptoms the proximity of the non-resident violent parent might re-arouse or perpetuate. There might be a continuing awareness of the fear the violent parent aroused in the child’s main carer. The psychiatric report highlighted the possible effects of such situations on the child’s own attitudes to violence, to forming parenting relationships and the role of fathers. Research shows that attitudes in boys were particularly affected.

Refusal of child to see parent

The psychiatric report addressed the problem of the child who was adamant that he did not wish to see the parent. The following factors ought to be accepted ([2000] Fam Law 615, 621):
‘(i) the child must be listened to and taken seriously;
(ii) the age and understanding of the child are highly relevant;
(iii) the child, and the younger and the more dependent, either for developmental or emotional reasons, if in a positive relationship with the resident parent will inevitably be influenced by:
• that parent’s views;
• their wish to maintain her or his sense of security and stability within that household.
(iv) Going against the child’s wishes must involve the following.
• Indications that there are prospects of the child changing his or her view as a result of preparation work or the contact itself, for example, there is a history of meaningful attachment and a good relationship; the non-resident parent has child-centred plans as to how to help the child to overcome his or her resistance; there are some indications of ambivalence such as an adamant statement of not wanting to see that parent accompanied by lots of positive memories and affect when talking of that parent.’

Consideration should be given to the effects on the child of making a decision that appears to disregard their feelings and wishes and when the child is forced to do something if he cannot see the sense of it.

The psychiatric report looked at the absence of a bond between

child and non-resident parent and indicated the need to take into account the age and development of the child and whether there was an established history of [2000] 2 FLR 339 domestic violence. In such a case it was suggested there would need to be good reason to embark on a plan of introducing direct contact and building up a relationship where the main evidence was of the non-resident parent’s capacity for violence within relationships.

No direct contact

Dr Sturge and Dr Glaser considered the question in what circumstances should the court give consideration to a child having no direct contact with the non-resident parent. In their view there should be no automatic assumption that contact to a previously or currently violent parent was in the child’s interests, if anything the assumption should be in the opposite direction and he should prove why he can offer something of benefit to the child and to the child’s situation. They said ([2000] Fam Law 615, 623–624):

‘Domestic violence involves a very serious and significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally (and in some cases physically – which meets any definition of child abuse).

Without the following we would see the balance of advantage and disadvantage as tipping against contact:

(a) some (preferably full) acknowledgment of the violence;
(b) some acceptance (preferably full if appropriate, ie the sole instigator of violence) of responsibility for that violence;
(c) full acceptance of the inappropriateness of the violence particularly in respect of the domestic and parenting context and of the likely ill-effects on the child;
(d) a genuine interest in the child’s welfare and full commitment to the child, ie a wish for contact in which he is not making the conditions;
(e) a wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child to develop appropriate values and attitudes;
(f) an expression of regret and the showing of some understanding of the impact of their behaviour on their ex-partner in the past and currently;
(g) indications that the parent seeking contact can reliably sustain contact in all senses.’

They suggested that without (a)–(f) above they could not see how the non-resident parent could fully support the child and play a part in undoing the harm caused to the child and support the child’s current situation and need to move on and develop healthily. There would be a significant risk to the child’s general well-being and his emotional development ([2000] Fam Law 615, 624):

‘Without these we also see contact as potentially raising the likelihood of the most serious of the sequelae of children’s exposure, directly or indirectly, to domestic violence, namely the increased risk of aggression [2000] 2 FLR 340 and violence in the child generally, the increased risk of the child becoming the perpetrator of domestic violence or becoming involved in domestically violent relationships and of increased risk of having disturbed inter-personal relationships themselves.’

They added to the list (h) respecting the child’s wishes ([2000] Fam Law 615, 624):

‘… while this needs to be assessed within the whole context of such wishes, the older the child the more seriously they should be viewed and the more insulting and discrediting to the child to have them ignored. As a rough rule we would see these as needing to be taken account of at any age; above 10 we see these as carrying considerable weight with 6–10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.’

In addition to the above, other evaluations of how the contact would benefit the child would need to be made. The purpose of contact needed to be answered, whether it was designed to provide information and direct knowledge of the non-resident parent or to continue or develop a meaningful father–child relationship.

Disadvantages of no direct contact

They looked at the potential detriment to the child of having no direct contact with the non-resident parent in the context of past domestic violence. The most relevant issues were ([2000] Fam Law 615, 625):

‘(i) deprivation of a relationship with the biological father;
(ii) loss of the opportunity to know that parent first-hand; loss of information and knowledge that will go towards the child’s identity formation. While the reality testing may give the child a negative view of the parent, that may be less worrying than the unseen, imagined villain. Where it is a positive view and the child is able to see good in the parent as well as to understand that he did things that were very wrong will help the positive image of himself or herself. While directly this may be more important for sons, daughters can be helped in their attitude to what makes a suitable partner to father her children. Children can have genetic fears – that he or she will be just like the father, sometimes fuelled by their mother’s attitude, and the reality of who their father is can be helpful; if the non-resident parent has been vilified beyond the facts, then the child will have the opportunity of assessing this for themselves;
(iii) loss of the opportunity to know grandparents and other relatives on the non-resident parent’s side of the family. This can add to the loss of genealogical information (although the study by Humphrey et al indicates that clear genealogical knowledge in an adolescent is not a necessary prerequisite to healthy identity formation and good self-esteem). Occasionally successful contact with the non-resident
[2000] 2 FLR 341 parent’s family can be achieved without contact to the parent himself or herself and without undermining the child by doing so, ie where assessment indicates that such contact can be safely achieved and is in the child’s interests;
(iv) loss of that parent if the child has had a positive and meaningful relationship with him and even where it has been negative if the relationship gave the child some sense of being cared about. Continuity can also be important;
(v) if the parent is able to provide positive and supportive contact and new and different experiences, then loss of that opportunity;
(vi) absence of the opportunity for any repair to the relationships or to the harm done;
(vii) lessening of the likelihood of the child being able to get in touch and/or form a meaningful relationship at a later stage.’

They also suggested that there should be greater creativity in addressing ways of resolving contact difficulties. An example given was by seeing the parent in a safe situation where the child was in control such as, by using a one way screen with an interviewer interviewing the parent on the other side. The child could decide if he wished to enter the room to see the parent. Proxy contact was suggested with a trained go-between and supervisors to support the child at the contact sessions.

The general advice and the specific advice on contact in cases of domestic violence from the two distinguished consultant child psychiatrists which I have summarised above is informed by research and also by the responses to the consultation paper provided by the Sub-Committee. In my view it is extremely valuable information to assist in the difficult task faced by the family judge or family proceedings magistrates deciding whether to order contact in cases where domestic violence is proved.

General comments

There are however a number of general comments I wish to make on the advice given to us. The family judges and magistrates need to have a heightened awareness of the existence of and consequences (some long term), on children of exposure to domestic violence between their parents or other partners. There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence and to leave them in the background on the premise that they were matters affecting the adults and not relevant to issues regarding the children. The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid to the adverse effects on children living in the household where violence has occurred. It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.

In a contact or other s 8 application, where allegations of domestic violence are made which might have an effect on the outcome, those allegations must be adjudicated upon and found proved or not proved. It will be necessary to scrutinise such allegations which may not always be true or may be grossly exaggerated. If however there is a firm basis for finding that violence has occurred, the psychiatric advice becomes very important.

There [2000] 2 FLR 342 is not, however, nor should there be, any presumption that, on proof of domestic violence, the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration. Wall J in Re M (Contact: Violent Parent) [1999] 2 FLR 321 suggested at 333 that often in cases where domestic violence had been found, too little weight had been given to the need for the father to change. He suggested that the father should demonstrate that he was a fit person to exercise contact and should show a track record of proper behaviour. Assertions, without evidence to back it up, may well not be sufficient.

In expressing these views I recognise the danger of the pendulum swinging too far against contact where domestic violence has been proved. It is trite but true to say that no two child cases are exactly the same. The court always has the duty to apply s 1 of the Children Act 1989 that the welfare of the child is paramount and, in considering that welfare, to take into account all the relevant circumstances, including the advice of the medical experts as far as it is relevant and proportionate to the decision in that case. It will also be relevant in due course to take into account the impact of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 on a decision to refuse direct contact.

The propositions set out above are not, in my view, in any way inconsistent with earlier decisions on contact. The fostering of a relationship between the child and the non-resident parent has always been and remains of great importance. It has equally been intended to be for the benefit of the child rather than of the parent. Over the last 40 years there has been a movement away from rights towards responsibilities of the parents and best interests of the child. In Re M (Contact: Welfare Test) [1995] 1 FLR 274, Wilson J, referring to the general principles on contact laid down in Re H (Minors) (Access) [1992] 1 FLR 148 (and which were endorsed in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124) said at 278–279:

‘I personally find it helpful to cast the principles into the framework of the checklist of considerations set out in s 1(3) of the Children Act 1989 and to ask whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s 1(3)(b)) is outweighed by the depth of harm which, in the light, inter alia, of his wishes and feelings (s 1(3)(a)), this child would be at risk of suffering (s 1(3)(e)) by virtue of a contact order.’

I find that a helpful summary of the proper approach to a contact [2000] 2 FLR 343 application where domestic violence is a factor.

In the decision in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, Sir Thomas Bingham MR reviewed the leading authorities on contact and restated the main principles with which I respectfully agree. In that case an intransigent mother refused the father contact to his child aged 2. Although there was a non-molestation order breached by the father who received a short suspended sentence for contempt, it was not a case of domestic violence. Sir Thomas Bingham said at 128:

‘First of all, and overriding all else as provided in s 1(1) of the 1989 Act, the welfare of the child is the paramount consideration of any court concerned to make an order relating to the upbringing of a child. It cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only insofar as they bear on the welfare of the child.

Secondly, where parents of a child are separated and the child is in the day-to-day care of one of them, it is almost always in the interests of the child that he or she should have contact with the other parent. The reason for this scarcely needs spelling out. It is, of course, that the separation of parents involves a loss to the child, and it is desirable that that loss should so far as possible be made good by contact with the non-custodial parent, that is the parent in whose day-to-day care the child is not.’
He said at 129:

‘… cases do, unhappily and infrequently but occasionally, arise in which a court is compelled to conclude that in existing circumstances an order for immediate direct contact should not be ordered, because so to order would injure the welfare of the child.’

This passage was followed by a quotation from Waite LJ in Re D (A Minor) (Contact: Mother’s Hostility) [1993] 2 FLR 1. The Master of the Rolls then said at 129–130:
‘The courts should not at all readily accept that the child’s welfare will be injured by direct contact. Judging that question the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems. Neither parent should be encouraged or permitted to think that the more intransigent, the more unreasonable, the more obdurate and the more unco-operative they are, the more likely they are to get their own way.’

With all those observations I respectfully agree, but it is clear that the Master of the Rolls was considering the risk of emotional harm to the child from the implacable hostility of the mother to contact and not to the entirely different circumstances of domestic violence proved against the parent seeking contact. The issues with which we are concerned in these appeals relate to violence or threats of violence that have been proved, where the fears of the resident parent are reasonable and where serious issues arise as to the risks of emotional harm to the children, a far cry from the unreasonable implacable hostility cases (see also Re D (Contact: Reasons
[2000] 2 FLR 344 for Refusal) [1997] 2 FLR 48).

In conclusion, on the general issues, a court hearing a contact application in which allegations of domestic violence are raised should consider the conduct of both parties towards each other and towards the children, the effect on the children and on the residential parent and the motivation of the parent seeking contact. Is it a desire to promote the best interests of the child or a means to continue violence and/or intimidation or harassment of the other parent? In cases of serious domestic violence, the ability of the offending parent to recognise his or her past conduct, to be aware of the need for change and to make genuine efforts to do so, will be likely to be an important consideration.

On an application for interim contact, when the allegations of domestic violence have not yet been adjudicated upon, the court should give particular consideration to the likely risk of harm to the child, whether physical or emotional, if contact is granted or refused. The court should ensure, as far as it can, that any risk of harm to the child is minimised and that the safety of the child and the residential parent is secured before, during and after any such contact.
I turn now to the first appeal.

Appeal in Re L

The child T is a little girl born on 29 June 1998 and is still under 2 years old. She lives with her mother. The parents did not marry or cohabit. The father was and remains married with a child by that marriage. T was registered in the father’s name but is now known by her mother’s name. There is no issue on the change of name. Contact ceased soon after the birth of the child. The father applied for a parental responsibility order and contact to the child. The applications came before his Honour Judge Allweis on 29 September 1999. He heard evidence of violence alleged by the mother both before and during the latter part of her pregnancy which included slapping, hitting her with an umbrella and trying to strangle her which caused bruising to her neck. An incident occurred when the baby was 4 weeks old. She was sitting naked on the bed feeding the child. The father pulled her hair and using foul language threatened to cut it off with scissors he was holding. He then cut off her pubic hair with the scissors. She was in tears and felt shaken, scared and degraded. She decided to leave him and did so 3 weeks later. On that occasion he collected her from her mother’s home. She told him she wanted to stay with her mother because the child had colic. She locked herself into the bathroom and he kicked the door open and grabbed her and the baby in her baby seat so she felt she had to go with him. The next day she went to the police. She then received threatening telephone calls including threats to remove T. The police went to the mother’s home on 19 August 1998 which they found had been vandalised and rendered uninhabitable. The father completely denied the violence and the vandalism of the mother’s home. He continued to deny the violence at the contact hearing and on appeal. The judge gave judgment on 4 October 1999 and said that the allegations amounted to a catalogue of sadistic violence. He found the mother’s account of violence to be true. He said:
‘… this is a man who has mood swings and a temper …

I would add this: that a father who systematically went through and [2000] 2 FLR 345
damaged his partner’s home, as he did, has a very real anger and control problem. It indicates a cruel streak, which suggests a significant psychological problem …’
He then considered the mother’s opposition to contact:

‘I conclude that the mother’s opposition to contact is implacable but reasonable. Her fear is genuine and based on rational grounds, namely actual violence and a genuine fear of him, and that T will in time witness violence.

I believe that direct contact, if ordered, would trigger enormous anxiety which would affect the mother … The mother’s attitude towards contact would put T at serious risk of major emotional harm if she were to be compelled to accept a degree of contact to the father against her will, and indeed in time that heightened anxiety would be conveyed to the child …’

He made a residence order to the mother. He ordered indirect contact and made a family assistance order to help set up the indirect contact and dismissed the father’s application for a parental responsibility order and granted permission to appeal. The father appeals to this court on both issues and raises Arts 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

On the issue of contact, the judge found the mother’s opposition to contact to be reasonable and that her fear of him was genuine and based on actual violence and that T would in time witness violence. In the light of the findings of the judge of serious violence by the father including a catalogue of sadistic violence, that he had a very real anger and control problem, and the denial by the father of the facts found by the judge, the judge’s decision not to grant direct contact was entirely in line with the clear advice in the psychiatric report provided to this court. The judge said:

‘… it might be a good idea for him to look in a mirror and begin to accept what he is and what his role has been in the mother’s life and during her pregnancy with T and subsequent to her birth. The sooner he comes to terms with the fear he has caused and the long-term emotional scars he has caused, the better.’

The risks to the child were obvious and the father, in refusing to face up to them, was clearly unable to reduce those risks. In her able submissions to the court, Miss de Haas QC, on behalf of the father, made the point that the mother was white and the father was black and, since the child was of mixed race, she needed to understand her roots and establish her identity, which would best be achieved by direct contact. In the circumstances of this case, in my view, it would certainly be possible to achieve that important objective by indirect contact. The judge applied the proper principles and the decision to which he came was not only well within his exercise of discretion, but on the facts of this case, clearly right.

Although a decision on the point is not yet strictly relevant, there was no failure, in my view, by the judge, under Art 8(1), to have proper respect for family life. Article 8(2) provides the crucial protection for the child T who also has rights and interests under the Convention (see Marckx v Belgium [2000] 2 FLR 346 (1979) 2 EHRR 330; Hokkanen v Finland (1994) 19 EHRR 139, [1996] 1 FLR 289). In Hendriks v Netherlands (1982) 5 EHRR 223 the court held that where there was a serious conflict between the interests of a child and one of its parents which could only be resolved to the disadvantage of one of them, the interests of the child had to prevail under Art 8(2). The principle of the crucial importance of the best interests of the child has been upheld in all subsequent decisions of the European Court of Human Rights. The observation by the court in Johansen v Norway (1996) 23 EHRR 33 is particularly apposite to this appeal. The court said (at 72):

‘In particular … the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development.’

In the present appeal, there are very real risks of emotional harm that require the court to protect the child. I would dismiss the appeal on the issue of contact.

With regard to a parental responsibility order, this court laid down general principles in Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151, sub nom Re H (Illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214, in the judgment of Balcombe LJ. He said at 158 and 218 respectively:

‘… the court will have to take into account a number of factors, of which the following will undoubtedly be material (although there may well be others, as the list is not intended to be exhaustive):

(1) the degree of commitment which the father has shown towards the child;
(2) the degree of attachment which exists between the father and the child;
(3) the reasons of the father for applying for the order.’

The judge accepted the submissions of counsel that, against the background of no contact, the father was in an impossible position in relation to the first two factors. He made, however, clear findings adverse to the father in respect of the third factor. He considered that there were worrying features in the case. He concluded that the father wanted to control the mother and:

‘… seeks an order, indeed orders, to control, and because they are his right rather than because he is committed to T and wants to do his best for her and give her the best. I am sure he regards the mother’s defiance of him, and refusal to bow to his wishes, humiliating and frustrating. I do not believe it would be right or in T’s interests for him to have parental responsibility at this stage. I stress those last three words. I would be prepared to look at the matter afresh, in the light of his commitment to indirect contact and, indeed his response to this judgment and acceptance perhaps that he is a violent man who has put the mother in fear. I do not believe that he has shown genuine concern. For him I believe it is a question of his rights and a right to control, rather than commitment to or concern for T.’

[2000] 2 FLR 347

Miss de Has suggested that the judge had linked the two applications of contact and parental responsibility together and did not give proper consideration to the status of parental responsibility nor to the principles governing it. In my judgment that submission is misconceived. The judge gave careful and separate consideration to the question of parental responsibility and I can find no error in his approach. In the light of the findings of the judge, I can see no ground for criticising his exercise of discretion. I would dismiss the appeal against the refusal to make a parental responsibility order.

The second appeal Appeal in Re V

The child J is a boy born on 22 November 1990 and is now 9 years old. He lives with his mother. The parents were married in South Africa in 1988 and moved to England in 1991. J was born while the parents were cohabiting. They finally separated in April 1994 after a history of turbulence and violence by the father. Contact ceased in December 1994 after J witnessed a serious incident when the father attacked the mother in the kitchen with a knife and caused an injury to her finger which bled profusely. The father was tried and pleaded guilty to causing grievous bodily harm, and was sentenced to 9 months’ imprisonment. After his release in June 1995 the father sought contact with the child which was refused. He applied for a contact order in January 1996. He began a course of counselling in anger management in October 1997. On 3 February 1998 his Honour Judge Bishop made an interim order for indirect contact with a review in July 1998 at which the indirect contact order was continued with a review in 1999.

On 4 June 1999 the matter was adjourned for the court welfare officer to see the child and on 25 June 1999 the judge made a further order for indirect contact which is the subject of this appeal. Permission to appeal was granted by Thorpe LJ.

In his judgments of 4 and 25 June 1999 the judge found that over the year the father had applied himself assiduously to changing his personality and to demonstrating that he was in a fit state and was a fit person to see J face to face and to have contact with him. The judge said:

‘I have to say that all the signs are that he has achieved that purpose. Dr Brenner has made a report in which he indicates that there has been a big change. Father is able to control temper, he is a much calmer person.’

The father was continuing to undergo counselling from an expert in anger management. The father was a changed person and the mother accepted that he was. She and her new husband did not object to contact. The judge was satisfied that he was now suitable to renew contact with J. The father had written J suitable letters on a regular basis, but J would not read them and the court welfare officer was unable to persuade him to do so. When Dr Baker gave evidence the previous year he had described J as a robust boy, with a strong enough personality to be able to cope with face-to-face contact. He, his mother, his stepfather and the small daughter were a solid and secure unit. The court welfare officer however who had seen the boy regularly said in his report of 2 March 1999 that:

[2000] 2 FLR 348

‘It has proved extremely difficult to engage J in discussion about the letters from his father, the link with South Africa or anything else for that matter as there appeared to be an impenetrable barrier over this aspect of his background.’

In his report of 21 June 1999, having seen the child twice in that month the court welfare officer recorded his efforts and those of the stepfather to interest the child in letters from his father without any success. There was outright rejection of the idea of direct contact with his father. In his conclusions he said that the school told him that:
‘J never mentions his natural father, in spite of indirect exposure to [father] these past few years … In spite of tangible efforts by [the mother and stepfather], J has not shifted his position and he shows not one iota of interest in a direct meeting with his father.’

The judge reminded himself that 5 years before the boy had witnessed the attack on his mother with a knife. The mother told the judge that she accepted contact but argued that it was not yet the right time for it to start again. She said that the child showed considerable distress when the hearings were taking place, including bed-wetting. They would encourage contact if J asked for it and accepted it would be good for him. The judge decided to trust the mother and stepfather to encourage J towards contact in preference to imposing a contact arrangement which might require forcing the child with consequential upheaval and upset. His order for indirect contact included the possibility of direct contact with the agreement of the parties.

The mother sought to adduce additional evidence on two issues, the first the mother’s state of health including a report from her psychiatrist. The second set out the paucity of the indirect contact between the father and the child between hearing and appeal. At the request of the court the father signed a short statement setting out his version of the extent of the indirect contact. We looked at the additional evidence from both sides but I have come to a clear conclusion on the basis of the evidence before the judge, without taking into account any of the additional evidence.

This case demonstrates a real effort by the father to recognise and come to terms with the serious violence that he had caused the mother. The mother and her new husband have in principle accepted that change of heart by the father. They were prepared to support contact to the father. The difficulty lay in the child himself, clearly seen from the most recent reports of the court welfare officer. In the report of Dr Sturge and Dr Glaser, the advice was that a child refusing to see a parent must be listened to and taken seriously. This boy had not seen his father since he was 4 and at the hearing he was nearly 9. His last recollection of his father was the serious assault on his mother with a knife and her hand covered in blood. We are reminded by the psychiatric report that, even when children do not continue in a violent situation, emotional trauma continues to be experienced. This child showed considerable distress during the proceedings including bed-wetting. He would not talk about his father or look at his letters. The judge, faced with these problems did not rule out direct contact in the future. He trusted the mother and stepfather and decided to go at their pace and not at the pace of the father. He left it to them to encourage [2000] 2 FLR 349 contact at a suitable point and to lead the child to it. This approach is endorsed by Dr Sturge and Dr Glaser in their report.

When I first looked at the papers on this appeal, I have to say that the refusal of direct contact by the judge gave me pause for thought. The Official Solicitor supported some direct contact. However, having heard argument and considered the additional evidence from the psychiatric report by Dr Sturge and Dr Glaser, I have come to the conclusion that the judge’s order cannot be disturbed. In my view, the judge approached this case with the greatest care and sensitivity and came to a cautious decision with the best interests of the child uppermost in his mind. It was a difficult and delicate balance and it would be entirely inappropriate for this court to interfere with that exercise of discretion. The more difficult the decision to be made, the more difficult it is for the appellate court to interfere with the exercise of discretion vested in the judge. The father is to be commended for his great efforts to improve his conduct but contact cannot be seen as a reward for that endeavour. Contact has to be in the best interests of his son. I would dismiss the appeal.

It is not therefore necessary to consider the effect of the additional evidence adduced by both parties. I shall however set it out shortly because it may be relevant in any future application by the father. The mother was found by the judge in July 1999 to be sufficiently robust to cope with the introduction of contact. In September 1999 the mother had a nervous breakdown and was diagnosed as suffering from clinical depression. The causes of the depression and breakdown may need, at some future stage, to be investigated. But in any event, it discloses that the mother’s state of health is more fragile than the judge considered it to be. The other point that came out from the additional evidence was that, from the father’s statement, there was a very limited take-up of indirect contact by him, a letter at the end of June 1999, a postcard during December 1999 or early January 2000 and a letter in mid-March 2000. There was no communication at or over the Christmas period. There would clearly be a need to look at the reasons for this apparent failure of communication. If this court had been minded to accept the additional evidence, it would have been appropriate in this difficult case to remit it to the judge for him to consider the accuracy of and the weight to be attached to that evidence. If there is a further application or the judge conducts any review of the case, this additional evidence will no doubt form an important part of those proceedings.

The third appeal Appeal in Re M

The child G is a boy born on 24 January 1991 and is now 9 years old. He lives with his mother. The parents married in March 1987. The marriage was not happy and the mother obtained an injunction against the father based upon his violence towards her. He was charged with grievous bodily harm but the criminal proceedings were not pursued. The mother obtained an ouster order. The judge found that the father ‘trashed’ the house when he left under the order. The child was born after they separated and initially the father denied paternity, but it was established in March 1992. When the child was 18 months he saw his father on a regular fortnightly basis in a contact centre in the presence of his mother. This form of contact lasted until
[2000] 2 FLR 350 November 1997, a period of over 5 years. No effort was made to move the contact on from supervision by the mother in the contact centre. The contact came to an end after an argument between the parents in front of G who subsequently said that he did not want to see his father. The mother remarried in July 1997 and has a child by that marriage, born in August 1998. The father started proceedings in February 1998. Attempts were made to restart contact. The child was taken to the contact centre but he refused to see his father. By the date of the hearing the boy had not seen his father for 2 years.

The application for contact came before his Honour Judge Rudd on 2 September 1999 and he gave a written judgment on 8 October 1999. In it he set out the unfortunate procedural history of the case in that it had been variously before a deputy district judge, a recorder and three different circuit judges. One effect of that history, relating to the direction given in respect of the evidence of the court welfare officer, formed part of the submissions on appeal to which I shall refer later. The judge refused an order for direct contact and ordered indirect contact by letters, cards and Christmas and birthday presents. He refused permission to appeal, which we granted.

Although there was a background of violence during the marriage and it remains a factor which, the judge found, had left its mark on the mother, unlike the other appeals before us, violence does not appear to me to be the main cause of the refusal of contact by the mother. The judge formed the view that the source of the problem was the long period of contact at the contact centre and that the matter should have been tackled years before. It would seem that, for a normal boy, the contact over the years in the contact centre must have lacked stimulus and interest and the relationship between the father and son does not appear to have had an opportunity to blossom and develop. In the psychiatric report, unstimulating experiences which were lacking in interest, fun or in extending the child and his experiences, were included among the risks of direct contact with the non-resident parent.

The main issues on the appeal were the conclusions of the judge on the attitude of the mother, the approach of the judge to the problems associated with the court welfare officer and to the evidence of a jointly instructed forensic psychologist, Dr Lowenstein.

I shall deal first with the evidence of the court welfare officer. At an earlier hearing she was directed to provide a report. She produced a report dated 12 November 1998 in which she recommended a phased reintroduction of contact. The attempts at contact broke down and she wrote a further report in which she expressed the view that G had suffered serious emotional abuse in the breakdown of contact and she was very critical of the mother. The mother made a complaint about the court welfare officer that was investigated and in part upheld. The court welfare officer then declined to attend the hearing and was supported in that decision by the practice manager. At an earlier hearing another judge giving directions was told of her refusal to attend court and give evidence and he directed that another court welfare officer should attend and present the report. She came before his Honour Judge Rudd with no knowledge of the family and was unable to give any direct evidence about the family. His Honour Judge Rudd, entirely justifiably in my view, was very critical of the refusal of the court welfare officer who wrote the report to attend and give evidence. I entirely agree with him that it is not up to her to decide if she would or would not give
[2000] 2 FLR 351 evidence. Her duty was to give evidence to the court if called upon to do so. Her failure to comply with best practice in compiling the report may cast doubt on its value. It does not excuse her refusal to assist the court. His Honour Judge Rudd was placed in a very difficult position. Another judge had made an unfortunate order. There was no point in the second court welfare officer attending court. She was wasting her time and that of the court. The judge giving directions should have grasped the nettle and either directed that there would not be a report at all for the court or another court welfare officer would be directed to start again and provide a fresh report.

A particular problem for his Honour Judge Rudd was the bald statement made by the court welfare officer that the child had suffered emotional harm without providing any evidence to support it. The report was obviously controversial but the father relied upon it. The two alternatives, in my view, at that stage, were either to order the court welfare officer to attend for cross-examination or to refuse to admit it as evidence. The judge, unfortunately, fell between two stools by accepting the report as evidence and then rejecting it without hearing the maker of the report give oral evidence. This was a decision that the appellant father was entitled to criticise. I do not consider however that the judge’s error advanced the father’s case, since the judge equally was not entitled to rely upon the report, untested by cross-examination, when it was challenged by the mother. I hope that this most unusual incident with a court welfare officer will never again occur. I have great sympathy with the judge in his predicament in a difficult case where he was entitled to expect help from the court welfare service.

The solicitors for the parties agreed that they should jointly instruct a child psychiatrist to advise on contact and his Honour Judge Milligan made the order. It appears that the parties’ solicitors had great difficulty in finding a child psychiatrist and eventually instructed Dr Lowenstein who made a report. He saw both parents and G and came to the conclusion that this was a typical case of parental alienation syndrome. As the judge said, Dr Lowenstein has been closely associated with recognition of this syndrome. He recommended therapy, at least six sessions to be conducted by himself, followed by a further report. Since it was therapy, there would be problems in financing the therapy and subsequent report. The judge did not accept the unsubstantiated assertion of the court welfare officer as to emotional abuse of G. He was equally unhappy about the findings and conclusions of Dr Lowenstein. In the report of Dr Sturge and Dr Glaser, they indicated that parental alienation syndrome was not recognised in either the American classification of mental disorders or the international classification of disorders. It is not generally recognised in psychiatric or allied child mental health specialities. It would be fair to say that Dr Lowenstein is at one end of a broad spectrum of mental health practitioners and that the existence of parental alienation syndrome is not universally accepted. There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem. That unhappy state of affairs, well known in the family courts, is a long way from a recognised syndrome requiring mental health professionals to play an expert role. I am aware of the difficulties experienced in some areas in getting the appropriate medical or allied mental health expert to provide a report within a reasonable time. It [2000] 2 FLR 352 was, however, unfortunate that the parents’ lawyers not only did not get the medical expert ordered by the judge, that is to say, a child psychiatrist, (although in many cases a psychologist would be appropriate), but, more serious, were unable to find an expert in the main stream of mental health expertise.

The judge, in my view, was entitled to reject the report and the oral evidence of Dr Lowenstein, even though the psychologist was jointly instructed. Lord Goff of Chieveley said in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 sub nom Re F (Sterilization: Mental Patient) [1989] 2 FLR 376 at 80 and 443 respectively that experts were to be listened to with respect but their opinions must be weighed and judged by the court. The judge said:

‘I cannot accept the effect of what Dr Lowenstein has told me, namely that PAS is such a serious state that the child involved and the parent should be subjected to treatment by way of therapy with direct threats to the mother in the event of non-co-operation. It appears from the literature that some schools of PAS thought advocate the immediate removal of the child from the alienating parent and thereafter no contact with the alienating parent for a period. It also appears that “long term psycho- analytically informed therapy in the order of years rather than months” is the treatment of choice.’

I do not accept the submission of Mr Bates that the judge did not give reasons for rejecting the evidence of Dr Lowenstein. The case for the father was largely based upon the suspect conclusions of the court welfare officer of emotional harm suffered by the child. The judge did give reasons and it was well within his judicial function not to accept that evidence.

The main ground of appeal was the judge’s error in concluding that the mother was not hostile to contact. The judge found that the father genuinely wanted to re-establish and continue a relationship with his son. The judge also found that the mother was unenthusiastic about contact but that she had kept it going for 5 years. He found her to be a credible witness and he accepted her evidence. He accepted that she did not consciously and directly attempt to persuade G not to have contact. The judge said:

‘Given a long period of unsatisfactory contact at the contact centre, the unsatisfactory relationship which [the mother] had with [the father], and her present and satisfactory family circumstances, I am not surprised that G has come to the conclusion that contact with his natural father is something of an intrusion into his life. The row between them in his presence was the final straw for him and probably for mother as well.’

The judge having rejected the evidence of the court welfare officer and of Dr Lowenstein, concluded that there was no evidence of serious harm to the child from the cessation of contact. The judge did not consider the mother to be a hostile mother nor one who would refuse to obey court orders. But she did not feel able to put pressure on the child nor force him to see his father. She would facilitate contact if he wanted it. The judge was not prepared to put pressure on the mother and could not conceive that he would commit her for contempt if an order for contact were not complied with. It was not a [2000] 2 FLR 353 case for coercion or punishment. He directed himself that contact was the right of the child and the mother had no right to prevent contact between the child and his father. But in order to effect contact it would be necessary to subject the child to therapy recommended by Dr Lowenstein and that would require the co-operation of the mother. She was not prepared to take part in therapy and would not consent to the child taking part. The judge said that he would be extremely reluctant to compel a child of 8 to submit to therapy by a psychiatrist (in fact a psychologist) against the wishes of his mother unless his interests had been represented in the case by the Official Solicitor. There was no evidence before him that the boy was other than a normal healthy boy with no requirement for psychiatric intervention save, allegedly, for the issue of contact. If he were forced to see his father at this stage it would have a detrimental effect upon him and his long-term relationship with his father. He concluded:

‘I must do the balancing act and exercise some common sense and proportionality in this case.’

He applied the checklist in s 1 of the Children Act 1989 and came to the conclusion that the only sensible order he could make was for indirect contact that he was satisfied the mother would not obstruct.

Mr Bates, on behalf of the father, submitted that the central issue was the mother’s hostility to contact and challenged the judge’s findings that the mother was not hostile and obstructive to contact. That is a difficult argument to sustain before an appellate court that has not had the opportunity to assess the oral evidence. By a supplemental skeleton argument, Mr Bates did not seek immediate direct contact given the expressed views of G. He submitted that the judge fell into error in not following the recommendations of the jointly instructed expert witness. He submitted that the judge underestimated the emotional harm already caused to G by the breakdown in contact with his father and positive steps should be taken to encourage G to resume contact by a short course of therapy or counselling. He submitted that the judge failed to use the powers available to him to try to re-establish a relationship between G and his father.

For the reasons I have already set out, as well as having a general power to accept or reject evidence adduced before him, the judge was entitled to ignore the evidence of the court welfare officer and to reject that of the forensic psychologist. He did not accept that the child had suffered emotional harm and decided that the right order to make was for indirect contact. His reasons for refusing to order contact in a case where the child himself refused to see the parent were in tune with the advice given in the psychiatric report of Dr Sturge and Dr Glaser. A decision as to the potential effect upon a child of forcing the pace was well within his exercise of discretion and I can see no reason for this court to interfere with his decision. I would dismiss the appeal.

I would however like to express some sympathy for the father whose attempts to revive contact were found by the judge to be genuine and well-motivated. It may be that, if he perseveres in keeping in touch with G by interesting letters, postcards, cards and presents, when G is a little older he may express a wish to be in touch with his father. If the mother does not respond to that opening, she may store up for herself difficulties when the [2000] 2 FLR 354 boy is in his teens who may then criticise her for not allowing him to be in contact with his father. The mother might also reflect upon the advice given by Sir Thomas Bingham MR in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 130 that, where there is no direct contact, it is important for a child to grow up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established. The object of indirect contact is to build up a relationship between the absent parent and the child:

‘The caring parent also has reciprocal obligations.’

In my view some response ought to be made by the child or at least by the mother by way of thank you for presents and response at least occasionally to letters and cards with information so that the father knows of his son’s progress and his interests.

The fourth appeal Appeal in Re H

There are two children H, a boy born on 17 August 1990 and S a girl born on 17 July 1992 who live with the mother. The mother had an English mother and Pakistani father. Her parents were divorced and her mother remarried. She was brought up by her mother and stepfather in a relaxed household until her stepfather died. Her father then returned to the family when she was about 11. Thereafter she then led a circumscribed life within the strict Muslim tradition. She had a first arranged marriage which was dissolved within the year. She then had an arranged marriage with the father, a strict Muslim from Pakistan but resident in Germany. She lived with him in Germany and the two children were born there. She alleged violence by the father which appears to have been the result of her refusal to continue to conform to the strict requirements of her faith. The centre of the conflict in the last few months of cohabitation was her failure to keep her head covered. Actual violence was minor but the threats of violence were extreme. The father made repeated threats to kill her if she did not wear a headscarf. He threatened to cut her up into little pieces and put her down the lavatory. He twice threatened her with a knife and once that he would cut her up with an electric saw. On one occasion she had a prayer mat wrapped round her because she had partially removed her headscarf at a friend’s home. She fled with the children to a women’s refuge in Germany and from there to England in October 1995.
She went to great lengths to prevent the father from finding out her whereabouts. She changed her name and the names of the children. The father divorced her on 26 March 1997 and remarried. He continues to live in Germany. Somewhat surprisingly he did not take any proceedings in Germany under the Hague Convention on the Civil Aspects of International Child Abduction 1980. If he had done so the English court would have taken steps to find the mother and children and, with the help of the tipstaff and the police, would have had a good chance of tracing them. In that event, the future welfare of the children would probably have been decided in a German court. The failure of the father to invoke the Hague Convention has had the result that the family has settled here and the issues over the children must now be resolved in accordance with English domestic [2000] 2 FLR 355 law, under the Children Act 1989.

The mother is no longer a practising Muslim. The children have been brought up in Norwich outside the Muslim faith in a westernised style of life and have not seen their father since they left Germany in October 1995. The father discovered their address in August 1998 and applied for defined contact and a prohibited steps order. The mother applied for residence and that there should be no contact to the father. The applications came before his Honour Judge Barham. On 14 May 1999 he made a residence order to the mother about which there was no dispute. The judge made findings as to the violence alleged by the mother. He found that she was obviously frightened in describing the threats of violence and that, despite some discrepancies, she was telling the truth. He said:

‘I have come to the conclusion, therefore, that the father did threaten violence in the way the mother describes and she is very frightened of him, as the welfare officer confirms. I am also satisfied that she fears, on reasonable grounds that he may attempt to remove the children from the jurisdiction.’

On the issue of contact the judge had a report from the court welfare officer in April 1999. She was hampered by not seeing the children with their father and was aware that, at that date, they had not seen him for over 3 years. She was impressed by the quality of parenting provided by the mother who was very anxious about the proceedings. The children are now known by English names. She felt that they would be anxious about meeting their father. She recognised that there might be a benefit to the children from current knowledge of their father, particularly in terms of their developing an understanding of their ethnic identity and cultural background. She was however concerned as to whether contact could be a happy positive experience for the children. For it to be happy it would require the father to accept that, regardless of whether it was originally right or wrong to remove the children, they now had a different culture and were not being brought up in the Muslim tradition.

Having found the allegations of threats to kill proved, the judge summarised the three main issues, conveniently set out in the court welfare officer’s report, the risk of abduction, the religious/cultural confusion or conflict and the severity of the effect of contact upon the mother. He set out the concerns of the mother, that she did not trust the father and feared he would abduct the children; that there was a clash of cultures between the way the children were being brought up and the expectations of the father as a strict practising Muslim; so that contact would have an adverse effect upon them; finally the effect on her of contact with the resulting effect upon the children. The judge found from the way that she gave her evidence that she was clearly suffering more than ordinary stress.

The judge found that the father was an imposing, impressive man who was obviously intelligent; but that he had a dominant personality; he was forceful and would be frightening if roused to anger. He took his religion very seriously. He had strong views, a robust approach and was not one to compromise. The judge said that he was obviously very indignant at the mother’s refusal to wear the headscarf. When the children became 11 or 12 he would expect them to be brought up as Muslims. The judge relied upon [2000] 2 FLR 356 the view of the court welfare officer that the father would also expect to introduce his influence over their lives at that time. The judge said:

‘The clear evidence is that these children are living in a western household. The cultural differences between their lives, their mother’s life and their father’s life is acute. It might be possible to overcome this difficulty if it could be handled sensitively. However, this will not happen. The welfare officer formed the view, which I accept, that he is not sensitive about these matters. His approach would be a robust one.

This approach would simply overpower the children. Any restraint by the father is going to be temporary. He does not accept that the children are to be brought up in a western culture, and I agree with the welfare officer that if contact is to be worthwhile it has eventually to be unsupervised and these problems will come upon it all too soon.

Mother fears, in my view rightly, that the influence of the father would simply undermine her and the family unit.’

The judge concluded:

‘… the mother is frightened of the father. She fears abduction. Her fears are justified. She is not going to overcome those fears in the short or medium term … Even if the fears are not justified she is going to retain them and the welfare officer has said that if contact is to be of value the mother has got to be able to support it and the father has to accept the reality that the children are being brought up in a western culture and not undermine it. In my view, there is no prospect of either of these conditions taking place.’

He refused the father’s application for direct contact and ordered that there should be indirect contact between the children and the father. The Court of Appeal granted permission to appeal.

I am, for my part, very concerned about the background to this case and the circumstances in which the English court has been obliged to exercise jurisdiction. The removal of the children from their habitual residence, Germany, was reprehensible and regrettable. The failure of the father to obtain a Hague Convention order and the passage of time, now nearly 5 years, has created a new situation in which the children have ceased to live within a traditional Muslim setting and have been brought up for a large part of their short lives in a non-traditional and non-religious environment. This court cannot put the clock back. In order to have a genuine and fruitful relationship with his children this father has to take them as they are and not as he would wish them to be. The judge who saw and heard the witnesses, crucially the mother and father, made findings of fact and assessments of the parents that this court cannot go behind.

Miss Hassan, on behalf of the father, in her admirable and trenchant submissions to us, made a number of valid points that have to be carefully considered in this sensitive case. She raised the right of the children to a relationship with the father, the lack of knowledge of the paternal family and the potential detriment to the children of no contact with the father. She relied upon passages in the psychiatric report relating to the disadvantages of no contact. She pointed out that there was no acknowledgement of the [2000] 2 FLR 357 father’s letters and to leave matters in the control of the mother would not provide any adequate communication with the father. She said that it was time to move the contact forward.

The most important questions arise in my view in the findings of substantial violence by threats, the mother’s continuing fear of the father, the possibility of removal of the children, but more important, the mother’s genuine fear that this might happen, the cultural/religious clash of perceptions and the perceived inability of the father to adapt to the present state of affairs. Although the father was not physically violent to any serious degree towards the mother, his threats of violence were extremely serious and were intimidating and frightening to the mother. She fled to a women’s refuge to escape him. She remains to this day afraid of him.

The description of the father by the judge, that he was imposing, impressive, a dominant personality and likely to be frightening if roused to anger, adds weight to the threats made. The cause of his anger, which no doubt he would consider justified, was the refusal of his wife to conform to the requirements of his (and her) faith. Five years on, the core of that problem has not disappeared. It is, rather, capable of exacerbation since the shortcomings of the mother, as seen by the father, have also extended to her care of the children. In general her care of them is excellent. From the perspective of the father and no doubt many others of his faith, the mother’s upbringing of the children is seriously flawed and the father would wish to redress the balance at a suitable stage of their lives. This might sound entirely reasonable except for the problems that this would be likely to create for the children, as has been set out in the admirable and perceptive judgment of the trial judge.

Here is a father with a forceful character and robust approach, who has been found to have uttered serious threats of extreme violence to his wife, who is a member of an active proselytising movement based in Pakistan. I am satisfied, on the facts found by the judge, that this father would see it as his duty to reassert the necessary religious and cultural influence over his children that their western upbringing has not and will not give them. This would be a recipe for disaster. The violent background to this case which precipitated the separation in 1995 is a crucial part of the difficult decision to which the judge came. The psychiatric report from Dr Sturge and Dr Glaser referred to the risk of undermining the stability of a child where a parent deliberately or inadvertently set different moral standards or standards of behaviour. I am sure in this case the undermining would be inadvertent but the danger would be there. This would be a clash of cultures in which the children would be likely to suffer. A balance has to be struck between the importance of providing these children with knowledge of their religious and cultural background and the substantial risks of direct contact with their father. In my judgment the judge’s decision displays no error in his approach to the exercise of discretion and cannot be said to be wrong in principle. Indeed in my view he came to the right conclusion and I would dismiss the appeal.

The mother however has an obligation to recognise that these children were born and in their early years brought up within the Muslim faith. They are entitled to know their origins and to be given appropriate knowledge of the religion of their birth. Her own family remains Muslim and there is available the opportunity for providing of information to the children that should be part of her parental responsibility. There should also be some [2000] 2 FLR 358 indirect contact as the judge directed. I hope that the father will use constructively the opportunity of indirect contact with his children. The comments which I have made in the appeal of Re M (above) about reciprocity from the children to their father also apply to this case.

THORPE LJ: I have had the advantage of reading in draft the judgment of my lady, the President, and I agree with her judgment and her disposal of the four appeals before the court. In relation to the individual cases I wish to add only two opinions. I have also had the advantage of reading Waller LJ’s succinct summary of our essential conclusions. With that I am in complete agreement.

The individual cases – Re H (Contact: Domestic Violence)Re H (Contact: Domestic Violence) is the only one of these four cases in which I doubt that I would have made as restrictive an order had I been the trial judge. Although there were intimidating and brutal threats of violence there was little actual violence in the history. What for me is more significant is this analysis. This was not a marriage of mixed cultures. Whilst the mother’s attachments to Islam did not match the father’s, she is half-Pakistani and was brought up and married as a Muslim. Whatever her reasons, her rejection of Islam was achieved by unheralded flight and the subsequent endeavour to obliterate the traces of flight. Had she been childless the principal person affected would have been her husband. But to include the children was to deprive them of their father, their settled home, their culture and their heritage. The decision to replace that with an environment and culture of anglicised agnosticism and assimilation was done, of course without reference to the father, but more seriously without reference to any independent power or authority that might have investigated the proposal or the fait accompli to ensure that what met her needs was compatible with the welfare of her children. Of course in cases of child abduction, whether or not international frontiers are crossed, the parent who contemplates abduction, still less the parent who abducts, does not initiate such a scrutiny.

Therefore in order to understand the eventual outcome it is in my opinion important to stress that at no time between the mother’s flight in October 1995 and the initiation of proceedings in October 1998 did the father exercise his rights to seek redress under either the Hague or the European Conventions. Although the whereabouts of the mother were successfully concealed he knew at some level that she must be in the UK, if only because of the improbability of her being anywhere else. Ignorance of whereabouts does not inhibit the initiation of well-established search procedures in this jurisdiction. Then when he eventually discovered her whereabouts the only proceeding which he issued was the application for a direct contact order. Whilst it is true that the application issued in the Bow County Court also purported to seek a prohibited steps order, that order was never specified or pursued. Miss Hasan was unable to explain it other than to speculate that it was designed to achieve an order restraining the mother from a second flight. Therefore all that the father sought was a supervised contact order that would allow him to spend only 24 out of all the hours that a year contains with his children and in the presence of a supervising professional. Of course in proceedings under the Children Act 1989 the judge was not bound to confine his appraisal of welfare within the confines [2000] 2 FLR 359
of the application issued, but it is understandable enough for a judge to hesitate to extend the bounds of an already difficult inquiry. But this was a mother whose determination to assimilate had extended to replacing the children’s Muslim names and to including pork on the family menu.

Where the unilateral action of one parent has severed children’s links with their home, the other parent, and the culture and tradition of their birth, then the first task of the family justice system is to investigate the possibility of restoring the children’s loss to the extent that is realistic in the circumstances obtaining at the date of judgment. If they cannot be returned to their former home and to shared life with their parents then the least the court will ordinarily ensure is that the loss is mitigated by productive contact with the lost parent and by conditions and requirements to ensure that the parent providing the primary home does not use the opportunity to obliterate the culture and religion into which they were born and which she herself affirmed at marriage.

It is not only Muslims who might think that the mother has impoverished the children’s experience of childhood by the choices that she has made for herself.
In conclusion the reason that I have expressed my reservations about the dismissal of the father’s appeal is to emphasise that I regard the outcome as quite exceptional and only justified by the exceptional facts and circumstances. Cases in which English mothers have experienced the total loss of their children by paternal abduction into an Islamic society are much publicised. Our minimum expectation of the religious courts in the Islamic State is that they will ensure generous contact to the mother within the Islamic State. One interpretation of the outcome of the proceedings in this jurisdiction is that the applicant is left as bereft as any Christian applicant to a Sharia court. I want to make it plain that that would be a superficial and erroneous interpretation. I would also want to make it plain that no mother should be encouraged by a reading of the judgments of this court to follow Mrs H’s example.

However all that said, despite the strong and skilful submissions of Miss Hasan, in the end I conclude that the judge was within the broad discretionary ambit in deciding the case as he did.

Re L (Contact: Domestic Violence)

I have little doubt that in granting permission to appeal his Honour Judge Allweis was aware of the need to obtain guidance from this court on issues raised by the public consultation. He can hardly have doubted his conclusions in the light of his findings of fact. The addition of European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 arguments to bolster an almost impossible appeal on the facts may foreshadow a fashion. The judgment of the Master of the Rolls in Daniels v Walker (Practice Note) [2000] 1 WLR 1382 emphasises the need for counsel to exercise responsibility in this area. That stricture must be of equal if not extra application in family cases. In so saying I intend no criticism of Miss de Haas, who conducted this appeal with conspicuous skill and good sense, nor of her junior.

Contact: rights and presumptions

The inter-relationship between domestic violence and contact calls for an examination of the underlying principles upon which contact orders are [2000] 2 FLR 360 either made or refused. Nothing specific is to be found in statute law. If there are principles they are judge made. Where children are in care the discretion of the local authority was subjected to judicial control by s 12F(1) of the Child Care Act 1980. A more sophisticated regime was then introduced by the Children Act 1989 which by s 34 emphasises the duty of the local authority to promote contact by providing that, save in most limited circumstances, the local authority may not terminate or restrict contact save by order of the court or by agreement with the concerned adult. But in relation to private law proceedings the Children Act 1989 makes no specific provisions in relation to contact.

Where there is a dispute it is resolved by a largely unfettered judicial discretion. The judge must simply apply the welfare principle and the welfare checklist. However in 1996 the legislation sought to introduce some definition by s 11(4) of the Family Law Act 1996 which includes para (c):

‘(c) the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—

(i) his having regular contact with those who have parental responsibility for him and with other members of his family; and
(ii) the maintenance of as good a continuing relationship with his parents as possible …’

Although this provision has been enacted it lies within Part II, the commencement of which has given rise to well publicised problems and consequential delay. Furthermore this provision would only apply to children whose parents are on the threshold of divorce or judicial separation.

The language of the judges in explaining the basis of decision making in relation to contact has shifted over the years. In S v S [1962] 1 WLR 445, Wilmer LJ described contact as ‘no more than the basic right of any parent’.

In J and Another v C and Others [1970] AC 668 Lord McDermott explained the relationship between parental rights and child welfare when he said at 715:
‘In applying section 1, the rights and wishes of parents, whether unimpeachable or otherwise, must be assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors relevant to that issue.’

In the following paragraph he said:
‘… such rights and wishes, recognised as they are by nature and society, can be capable of administering to the total welfare of the child in a special way, and must therefore preponderate in many cases.’

However in 1973 in M v M (Child: Access) [1973] 2 All ER 81, Wrangham J suggested that Wilmer LJ, in speaking of the basic right of the parent, had meant that the companionship of a parent is of such value to the child that it creates the basic right in the child to such companionship.

Latey J agreed with this restatement and in a passage characteristic of his experience he said:[2000] 2 FLR 361

‘… where the parents have separated and one has the care of the child, access by the other often results in some upset in the child. Those upsets are usually minor and superficial. They are heavily outweighed by the long term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make.’

However the designation of contact as a right vested in any member of the family was subsequently disapproved in the characteristically clear language of Ormrod LJ. In the case of A v C [1985] FLR 445 he said:

‘The word “rights” is a highly confusing word which leads to a great deal of trouble if it is used loosely, particularly when it is used loosely in a court of law. So far as access to a child is concerned, there are no rights in the sense in which lawyers understand the word. It is a matter to be decided always entirely on the footing of the best interests of the child, either by agreement between the parties or by the court if there is no agreement.’

This passage was cited with approval in the case of Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806 sub nom Re KD (A Minor) (Access: Principles) [1988] 2 FLR 139 where the court considered parental contact in what would now be classified as a public law case. In the course of his speech Lord Oliver of Aylmerton considered the approach of this jurisdiction as formulated in the House’s earlier decision in J and Another v C and Others [1970] AC 668 with parental rights in the context of the European Convention. He said (at 825 and 153):

‘The word “right” is used in a variety of different senses, both popular and jurisprudential. It may be used as importing positive duty in some other individual for the non-performance of which the law will provide an appropriate remedy, as in the case of a right to the performance of a contract. It may signify merely a privilege conferring no corresponding duty on anyone save that of non-interference, such as the right to walk on the public highway. It may signify no more than the hope of or aspiration to a social order, which will permit the exercise of that which is perceived as an essential liberty, such as, for instance, the so-called “right to work” or a “right” of personal privacy. Parenthood, in most civilised societies, is generally conceived of as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or by the authorities on whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate.

[2000] 2 FLR 362

They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say the welfare of the child.’
Thereafter judicial statements as to how applications for contact should be determined have spoken not of rights but of either presumption or principle. Sir Thomas Bingham MR in considering the inter-relationship the court’s power to order contact under s 8 and its power to attach conditions under s 11 said in the case of Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 128:

‘It may perhaps be worth stating in a reasonably compendious way some very familiar but none the less fundamental principles. First of all, and overriding all else as provided in s 1(1) of the 1989 Act, the welfare of the child is the paramount consideration of any court concerned to make an order relating to the upbringing of a child. It cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only insofar as they bear on the welfare of the child.

Secondly, where parents of a child are separated and the child is in the day-to-day care of one of them, it is almost always in the interests of the child that he or she should have contact with the other parent. The reason for this scarcely needs spelling out. It is, of course, that the separation of parents involves a loss to the child, and it is desirable that that loss should so far as possible be made good by contact with the non-custodial parent, that is the parent in whose day-to-day care the child is not.’
Lord Woolf MR in the case of Re B (Contact: Stepfather’s Opposition) [1997] 2 FLR 579 stated the general policy of this court that contact between a child and its natural parent is to be maintained wherever possible. He said at 584–585:

‘[Counsel] is right in submitting that to deprive a father who bona fide wishes to have contact with his child of that contact is a drastic step. The court’s general policy is clear: contact between a child and its natural parent is something which should be maintained wherever this is practical.’

I have cited these two cases since they carry the particular authority of the Master of the Rolls. However there are many others decided within the last 5 years both in this court and at first instance emphasising the principle generally expressed as ‘a presumption in favour of contact between a natural parent and children’. Indeed there is some evidence of a return to the language of rights: for example in A v L (Contact) [1998] 1 FLR 361 Holman J described contact as ‘a fundamental right of a child’.

This reintroduction is perhaps not surprising in an age when the imminent commencement of the Human Rights Act 1998 focuses judicial study on rights and when Art 9(3) of the United Nations Convention on the Rights of the Child 1989 declares that:

‘States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with [2000] 2 FLR 363
both parents on a regular basis, except if it is contrary to the child’s best interests.’
Although our statute does not replicate this Treaty provision, in other States it is specifically enacted, for instance in Australia where the statute provides ‘children have a right of contact, on a regular basis, with both their parents’. Nearer home the relevant Scottish statutes have been considered by the House of Lords in S v M (Access Order) [1997] 1 FLR 980. The decision of the House illustrates another area of family law where there is a significant difference of approach on either side of the border. Lord Hope of Craighead in his speech at 987 said:

‘The issue relates to the meaning and effect of s 3(2) of the Act. This subsection states that the welfare of the child is the paramount consideration. It does not say what other considerations may or may not be taken into account. But the court is told that it shall not make any order relating to parental rights unless it is satisfied that to do so will be in the interests of the child. The scope of the court’s powers is indicated by the concluding words of the previous subsection, which states that the court may make such order relating to parental rights as it thinks fit.

In my opinion the effect of s 3(2) is clear. The court is given a wide discretion as to the considerations pointing one way or the other which it may take into account. But all other considerations must yield to the consideration which is stated by the subsection to be paramount, which is the welfare of the child. As it is told that it “shall not” make any order relating to parental rights unless it is satisfied that “to do so” will be in the best interests of the child, the onus is on the party who seeks such an order to show on balance of probabilities that the welfare of the child requires that the order be made in the child’s best interests.’

He then posed the alternative approach (at 987):

‘The point which was made by Lord McCluskey in his dissenting opinion in this case, which the Dean of Faculty invited us to follow, was this. In his view the link between the child and each of his natural parents is so important in itself that, unless there are very strong reasons to the contrary, it should be preserved. It is a link which has an intrinsic value quite independent of any supposed “right” of a parent to obtain an order from the court allowing access to his or her child.’

Then on the following page he rejected that approach in these words (at 988):

‘The more fundamental question, however, is whether the natural link between the child and his parent is so important that the court must always seek to preserve it unless there are strong reasons to the contrary. Whatever may have been the position at common law, the effect of s 3(2) of the 1986 Act has been to remove any rule or principle to this effect. Lord Dunpark had already recognised the fallacy in this approach, once the welfare of the child was made the paramount consideration, in the opinion which he delivered in Porchetta v Porchetta …’

[2000] 2 FLR 364

So whilst some comparative study demonstrates a spectrum from rights through presumption to simple application of the welfare principle the significance of the distinction is reduced by what appears to be universal judicial recognition of the importance of contact to a child’s development. Within our case-law the shifts of judicial language are likely to be reflective of social attitudes and assumptions. I believe that Wilmer LJ meant exactly what he said in 1962. The statement was unremarkable nearly 40 years ago when uttered by a distinguished judge of his time, by which I mean born in the century before last. Many of the social developments amongst which we now live and work he would surely not have foreseen.

When the law enters the field of child welfare statements of principle may not hold their value much beyond the times in which they were expressed. That proposition can be supported by the recollection that within my lifetime judges applied a rule that an adulterous mother not only sacrificed the care of her child but also regular contact. Furthermore there seem to me to be considerable difficulties with any return to the language of rights. Quite apart from the points made by Ormrod LJ and Lord Oliver of Aylmerton in the cases cited, the creation of a right of the child does not lead to corresponding duties on parents. The errant or selfish parent cannot be ordered to spend time with his child against his will however much the child may yearn for his company and the mother desire respite. The court’s power is restricted to those cases in which the absent parent seeks and the parent with care opposes either the principle or the detail of contact. Furthermore it must be recognised that contact is no more than a mechanism for the maintenance and development of relationships and the court’s powers are restricted to regulating the mechanism and do not extend to the underlying relationships.

However the general judicial approach may currently be expressed, I doubt that sufficient distinction has been made between cases in which contact is sought in order to maintain an existing relationship, to revive a dormant relationship or to create a non-existent relationship. The judicial assumption that to order contact would be to promote welfare should surely wane across that spectrum. I would not assume the benefit with unquestioning confidence where a child has developed over its early years without any knowledge of its father, particularly if over those crucially formative years a psychological attachment to an alternative father has been achieved.
Just as there are difficulties with the terminology of rights so too am I wary of presumptions. Again the word has a special value in the context of adversarial litigation. There is a danger that the identification of a presumption will inhibit or distort the rigorous search for the welfare solution. There is also the danger that a presumption may be used as an aid to determination when the individual advocate or judge feels either undecided or overwhelmed. The expert report commissioned by the Official Solicitor from Dr Claire Sturge and Dr Danya Glaser (hereinafter referred to as Sturge/Glaser) speaks of the assumption in favour of contact. Although the distinction may be said to be fine, it perhaps more accurately reflects the base of knowledge and experience from which the court embarks upon its application of the welfare principle in each disputed contact application.

The foundation of the universal approach

But what is the derivation of the judge’s base of knowledge and experience? Most judges in our jurisdiction will have had the experience of parenting [2000] 2 FLR 365
their own children. But few if any will have had education or training in child health and development. If a judge is challenged to demonstrate his qualification for discerning why one solution rather than another promotes the welfare of the child he may best rely upon the experience gained in his professional life as a specialist in family law, both as practitioner and judge. But, particularly in the most difficult cases, the judge will have the advantage of expert evidence from a mental health professional. The assumption that contact benefits the child cannot be derived from legal precedent or principle. It must find its foundation in the theory and practice of the mental health professions. Perhaps the largest single ingredient of a child’s welfare is health, giving that word a broad definition to encompass physical, emotional and psychological development and well-being. So both judicial general assumption and judicial assessment of welfare in the individual case are to be derived from the expertise of mental health professionals whose training and practice has centred on the development. needs and vulnerability of children. So for me the proposition that children benefit from contact with the parent with whom they no longer live must be drawn from current opinion shared by the majority of mental health professionals.

In the present appeals the expert evidence is unanimous. Sturge/Glaser define the core principles drawn from scientific knowledge as ([2000] Fam Law 615, 616):
‘(i) We see the centrality of the child as all important … The needs of the adult positions obscure and overwhelm the needs of the child but promoting the child’s mental health remains the central issue …
(ii) To consider contact questions the purpose of any proposed contact must be overt and abundantly clear.
Contact can only be an issue where it has the potential for benefiting the child in some way. Defining in what way this might be will help guide decisions about whether there should be contact and also its nature, duration and frequency …
(iii) Decisions must involve a process of balancing different factors and the advantages and disadvantages of each. This includes contact versus no contact and whether to accept or go against the wishes of a child.’

This citation does not perhaps reflect the overall tenor of the report which fully identifies the benefits which children derive from continuing contact with the absent parent. The general proposition was authoritatively put by Dr Judith Trowell of the Tavistock Clinic in response to Wall J’s consultation paper when she wrote:
‘The Tavistock Clinic has considerable clinical and research experience as a child, adolescent and family mental health specialist service with families where parents have separated (married or unmarried). There is no doubt that for most children their mental health, their emotional, psychological and social development are enhanced by regular contact with their parent and extended family. See: Working with Children and Parents through Separation and Divorce (1999) Dowling & Gorrell-Barnes: Macmillan Press.’
[2000] 2 FLR 366

In the work cited the authors state at p 178:

‘From research and clinical experience we know that children do better if:
• There is no ongoing conflict between the parents.
• They maintain free and easy contact with both parents.
• They have a coherent explanation about the break-up of the family.
• They have stability and predictability in terms of contact arrangements with the out of house parent.’

Although there can be no doubt of the secure foundation for the assumption that contact benefits children there is another view which found powerful expression in one of the references cited by Sturge/Glaser: Goldstein, Freud and Solnit Beyond the Best Interests of the Child (1973). Although a profoundly influential publication, the authors seemingly expressed a minority view that contact should not be imposed but should be restricted to whatever the parent with primary care deemed sensible. When this opinion attracted widespread criticism the authors in an epilogue to a subsequent edition published in 1983 trenchantly defended their original view. However the premise now appears to lack support.

The limitations of litigation

However there is in my opinion validity in questioning the future role of the family justice system in relation to contact. I have already expressed how limited is the capacity of the family justice system to produce good outcomes in disputed areas of personal relationship. Yet a great deal of the resources of the system are taken up with contested contact cases. The disputes are particularly prevalent and intractable. They consume a disproportionate quantity of private law judicial time. The disputes are often driven by personality disorders, unresolved adult conflicts or egocentricity.

These originating or contributing factors would generally be better treated therapeutically, where at least there would be some prospect of beneficial change, rather than given vent in the family justice system. As his Honour Judge Rudd pointed out in the case of M the issue that had consumed nearly £20,000 of public money in his court would have been more appropriately tried by an experienced bench of magistrates. I am in complete agreement with that view. The family proceedings courts are a much underused resource in private law disputes, particularly in deciding disputed applications as to the duration or detail of contact. Equally in my opinion too much of the time of this court has been devoted to applications and appeals relating to contact orders either made or denied to which one party cannot adjust. It needs to be recognised that a decision is essentially a discretionary evaluation of the welfare considerations. Since the commencement of the Children Act 1989 such decisions are restricted to benches and judges specifically trained and appointed for the task. The advent of much enhanced specialisation within the family justice system is an extremely significant development of the past decade and cases in which it can be said convincingly that the trial judge was plainly wrong in determining a contact dispute upon the application of the welfare principle must be rare indeed. Another deficiency of the family justice system in relation to contact [2000] 2 FLR 367 disputes is that it lacks any support services other than the aid of the court welfare officer in preparation for the final hearing.

There is no qualified and experienced professional that the judge can request to implement arrangements, to work with the family or to search out and engage the absent and reluctant parent. The shortcomings of the family assistance order are manifest. The court’s capacity to resolve the challenge of what has been called the implacably hostile parent is evident. The practical difficulties posed by the power to commit are obvious. Treatment rather than imprisonment would seem more likely to succeed. However if it be unrealistic to question the continuing role of the family justice system in promoting post-separation contact then I would express the hope that the newly created Children and Family Court Advisory and Support Service (CAFCASS) be given a role to address those aspects of the fractured relationships that the court in the exercise of its statutory and inherent powers cannot approach.
Finally I would question whether the investment of public funds in litigation as the conventional mode of resolving contact disputes is comparatively productive. In many cases the same investment in therapeutic services might produce greater benefit.

Within the NHS, child and mental health services work with warring parents to try and help them separate their parenting role from the breakdown of the partnership. If one parent has a mental illness or personality disorder the service can help the family to manage perhaps by providing sessions with the children to help them understand their situation. Within the voluntary sector there are exceptional facilities, such as the Accord Centre in Brent, that provide more than neutral space for contact, and perhaps some professional supervision or assessment. Such centres attempt to address the underlying dysfunction in family relationship that expresses itself in the absence or failure of contact. In some cases they may work with the family therapeutically for weeks before attempting any direct contact. It must at least be arguable that that expenditure of effort and cost is likely to achieve more than an equal expenditure on litigation with its tendency to increase alienation through its adversarial emphasis. Of course there will always be many cases that are only fit for referral to litigation. But in my opinion judges with responsibility for case management should be thoroughly informed as to available alternative services in the locality and astute in selecting the service best suited to promote the welfare of the child in each case.

Contact and domestic violence

It was, in my opinion, necessary to establish the strength of the professional assumptions in favour of contact orders before examining the inter-relationship of contact and domestic violence. Domestic violence is one of a catalogue of factors that may operate to offset the assumption for contact but it has not been separately categorised in either statute or case-law nor, in my opinion, should it be. However it is worth noting that the last of the four general principles underlying Parts II and III of the Family Law Act 1996 (yet to come into force and only of application to the families on the verge of divorce or judicial separation) is:

‘(d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, [2000] 2 FLR 368 be removed or diminished.’

The reported cases on the topic are sparse: Re A (Contact: Domestic Violence) [1998] 2 FLR 171, Re P (Contact: Discretion) [1998] 2 FLR 696, Re H (Contact: Domestic Violence) [1998] 2 FLR 42 and Re M (Contact: Violent Parent) [1999] 2 FLR 321. This constellation of cases may suggest an emerging modern problem, although certainly not one created by any shift in the pattern of human behaviour.
In giving the leading judgment in the case of Re H (Contact: Domestic Violence) [1998] 2 FLR 42 in this court Wall J said (at 56):

‘The point that has troubled me most on this aspect of the case is the question of domestic violence. Can it be said, as a matter of principle, that it is in the interests of children to impose an order for contact on a mother who is caring for them well in favour of a father who has treated her with such violence as to give her good and valid reasons to oppose contact?

Having asked the question, however, the answer must be that, as a matter of principle, domestic violence of itself cannot constitute a bar to contact. Each case must inevitably be decided on its facts. Domestic violence can only be one factor in a very complex equation. There will be contact cases in which it is decisive against contact.

There will be others in which it will be peripheral. For example, Re D, to which I have already referred, demonstrates that domestic violence may both provide a powerful basis for a mother’s objection to contact and demonstrate in a given case the father’s unfitness to exercise contact.

The matter is therefore not one of principle, but of discretion, and there thus remains the question whether or not, on the facts of this case, the recorder erred in what is conventionally called the balancing exercise.’

I am in complete agreement with that analysis. Wall J went on to emphasise the obligation on the father first to acknowledge and then to address his maltreatment of the mother. Wall J was in my view absolutely right to introduce this vital consideration, although its introduction only reveals the limitations on the court’s powers to direct and supervise the delivery of, as well as the father’s engagement in, available therapeutic services.

Wall J returned to that theme when deciding an appeal from the family proceedings court in Re M (Contact: Violent Parent) [1999] 2 FLR 321. In that case he said towards the conclusion of his judgment (at 333):

‘Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, not withstanding the violence, the mother must none the less bring up the children with full knowledge and a positive image of their natural father and arrange for the children to be available for contact. Too often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.’
Apart from Wall J’s contribution in these judgments he has done most [2000] 2 FLR 369 valuable work as Chairman of the Children Act Sub-Committee of the Lord Chancellor’s Advisory Board on Family Law culminating in his recently published report to the Lord Chancellor. The report is obviously of great value not least because it digests a wide range of responses to a well publicised consultation.

The extent to which judges throughout the jurisdiction have been elevating a presumption in favour of a contact order too high or trivialising a history of domestic violence must remain uncertain. Certainly applications and appeals to the Court of Appeal over the course of the past 5 years do not suggest that contact orders have been made when plainly they should have been refused. Nor have other professions brought their concerns to the President’s interdisciplinary family law committee, save in one instance. However I have been impressed by the research of Professor Bailey-Harris and others into the presumption of contact in practice: reported at (1999) International Journal of Law, Policy and the Family 111 and I must acknowledge the help that I have drawn from this article. That research demonstrates that:

• Solicitors and district judges in their daily work in the field of contact concentrate on future arrangements and discourage the ventilation of past history. They consistently set the presumption in favour of contact high.
• Research evidence, particularly the reports of Hester and Radford in 1995 and 1996, demonstrated that children are seriously harmed by witnessing family violence and that violent fathers use the opportunity of contact to continue abuse.
• The research was recognised by court welfare officers but remained unknown to the legal professions. The court welfare officers sensed a need to educate the judges.
• Nevertheless during the period of investigation, January 1996 to May 1997, there was little evidence of any shift of approach and therefore outcome.

This research demonstrates to me the value of the work that Wall J has done in drawing attention to the need to re-evaluate domestic violence in its impact on continuing relationships within the family after separation.

In relation to judicial knowledge it will always be difficult, even for specialists, to educate themselves as to research in the field of child protection as well as generally in family proceedings. Although the work of the Judicial Studies Board is invaluable it is necessarily limited in what it can undertake. But there is an obvious opportunity for interdisciplinary exchange on a local basis within the scope of a care centre interdisciplinary forum. Professor Bailey-Harris’ research offers merely one example of how social work expertise might have been shared amongst lawyers and judges to ensure that messages from recent research did not go unheard. The re-invigoration of the care centre forums as part of the creation of a support structure for the family justice system is in my opinion overdue. A very recent publication commissioned by the Department of Health makes the findings of recent research available in easily accessible form: Hester, Pearson and Harrison Making an Impact, Children and Domestic Violence (Kingsley Publishers Limited, 2000). At p 42 they wrote:
[2000] 2 FLR 370

‘The arrangements made for contact with violent fathers need to be considered in relation to the protection of children from abuse and harm. It is in the arena of contact that the ongoing abuse of children, both directly and indirectly, is likely to continue and yet may be ignored.’

However, the factors that may offset the assumption in favour of contact are probably too legion to be either listed or categorised. Abuse must form the largest compartment: as well as physical abuse of the other parent and/or a child there is equally sexual and emotional abuse within the family. Then there is the self abuse of either drugs or alcohol and the failure to maintain sexual boundaries appropriate to the development of the child. Additionally mental illness or personality disorder may be a dominant factor as may be malign motives prompting the applicant to pursue a seemingly justifiable application for the covert purpose of threatening or dominating the primary carer. This uncomprehensive catalogue only demonstrates that the factor of domestic violence must be kept in proportion and must not be elevated either to reduce the focus on other factors that may counter the assumption in favour of contact or otherwise distort the paramount judicial task.

My primary conclusion is that listing of the present appeals and the great assistance given by the Official Solicitor, by Mr Posnansky QC and by the Sturge/Glaser report does not call for any adjustment of the approach adopted by Wall J in the passages that I have cited from his judgments in Re H (Contact: Domestic Violence) [1998] 2 FLR 42 and in Re M (Contact: Violent Parent) [1999] 2 FLR 321. The danger of elevating any one factor in what will always be an extremely complex evaluation is to move the pendulum too far and thus to create an excessive concentration on past history and an over-reflection of physical abuse within the determination of individual cases. I would not adopt the suggestion in the Sturge/Glaser report ([2000] Fam Law 615, 623):

‘From all that is written above, it will be clear that we consider that there should be no automatic assumption that contact to a previously or currently violent parent is in the child’s interests; if anything the assumption should be in the opposite direction and the case of the non-residential parent one of proving why he can offer something of such benefit not only to the child but to the child’s situation … that contact should be considered.’

As the quotation itself suggests there is a spectrum within the broad categorisation of domestic violence from the slap that may have been provoked to premeditated murder. There is the equally obvious distinction between past abuse which has been acknowledged and addressed and a continuing risk of future violence if any opportunity is created. In my opinion the only direction that can be given to the trial judge is to apply the welfare principle and the welfare checklist, s 1(1) and (3) of the Children Act 1989, to the facts of the particular case. It follows that I am doubtful as to whether specific guidelines are now required but my preference would be for brevity and simplicity always bearing in mind the risk of creating satellite litigation as to how the guidelines should be construed and applied.

WALLER LJ: I agree that these appeals should be dismissed. They were [2000] 2 FLR 371 listed to be heard together because of a possible common ingredient – domestic violence of the non-resident parent against the resident parent, and the relevance of the same to the issue of contact with the non-resident parent. I have read with admiration the observations of the President and Thorpe LJ on that subject. Without being exhaustive the key points which it may be helpful for me to emphasise appear to be the following:

(1) the effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by judges, and advisers alike;
(2) it follows that alleged domestic violence is a matter that ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
(3) in assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
(4) there should however be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many which may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the judge applying the welfare principle and the welfare checklist, s 1(1) and (3) of the Children Act 1989.

OrderAppeals in Re L, Re H, Re V, Re M dismissed. No order for costs, save legal aid assessment. Permission to appeal to House of Lords refused.
Solicitors: Re L (Contact: Domestic Violence)
Jones Fitton & Co for L’s father
Masons & Co for L’s mother
Official Solicitor
Re V (Contact: Domestic Violence)
Spencer Gibson for V’s father
Costertons for V’s mother
Official Solicitor
Re M (Contact: Domestic Violence)
Crisp & Co for M’s father
Brain Chase & Coles for M’s mother
Official Solicitor
Re H (Contact: Domestic Violence)
Bowling & Co for H’s father
Saunders & Senior for H’s mother
Official Solicitor

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