Law - Domestic Violence - Contact Orders
Effect of domestic violence
on contact orders
In re L (a Child) (Contact: Domestic violence)
In re V (a Child) (Contact: Domestic violence)
In re M (a Child) (Contact: Domestic violence)
In re H (Children) (Contact: Domestic violence)
Judgment June 19, 2000
On hearing a contact application in which allegations of domestic
violence were established, the court 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, ensuring, as
far as it could, that any risk of harm to the child was minimised
and the safety of the child and the residential parent was
The Court of Appeal so stated when dismissing all four appeals
where in each case a father's application for direct contact
had been refused by the circuit judge against a background
of domestic violence between the spouses or partners.
In L, Judge Allweis at Manchester County Court on October
4, 1999 dismissed the father's application for parental responsibility
and ordered limited indirect contact.
In V, Judge Bishop at Kingston-upon-Thames County Court on
June 25, 1999 ordered indirect contact only.
In M, Judge Rudd in Basingstoke County Court sitting at Southampton
on November 9, 1999 ordered indirect contact without review
or further intervention.
In H, Judge Barham at Norwich County Court on May 14, 1999
gave residence to the mother and only indirect contact to
Miss Margaret de Haas and Miss Ruth Sutton for the L's father;
Mr Ernest Ryder, QC and Miss Julia Cheetham the mother.
Mr Charles Howard, QC for V' father; Mr Andrew Bagchi for
Mr Richard Bates for M's father; Mr John Ker-Reid for the
Miss Ayesha Hasan for H's father; Mr Allan Levy, QC and Miss
Jane Davies for the mother.
Mr Jeremy Posnansky, QC, for the Official Solicitor as amicus
curiae in each case.
THE PRESIDENT, commenting generally on the report by the Children
Act Sub-Committee of the Advisory Board on Family Law, Contact
between Children and Violent Parents (December 1999) and psychiatric
evidence requested to assist the court in a joint report by
Dr Claire Sturge and Dr Danya Glaser, said that family judges
and magistrates needed to have a heightened awareness of the
existence and consequences on children of exposure to domestic
violence between their parents or other partners, with proper
arrangements put in place to safeguard both from risk of further
physical or emotional harm.
The psychiatric report had pointed out, inter alia, the risks
involved where direct contact might cause emotional abuse
and damage, emphasising that the decisions about contact should
be child-centered and the purpose of the proposed contact
should be abundantly clear, with the potential of benefiting
the child in some way.
The view was that there should be no automatic assumption
that contact to a violent parent was in the child's interests.
If anything, the assumption should be in the opposite direction
with the violent parent proving why he or she could offer
something of benefit to the child.
While there should not be an presumption that, on proof of
domestic violence, the offending parent had to surmount a
prima facie barrier of no contact, it was one factor in a
delicate balancing exercise of discretion.
No two child cases were alike but the court always had the
duty to apply section 1 of the Children Act 1989 that the
welfare of the child was paramount and to take into account
all relevant circumstances, including the advice of medical
experts and, in due course, the impact of article 8 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) (Cmd 8969). Those propositions
were not in an way inconsistent with earlier decisions on
In L, the judge had found that there had been a series of
violent incidents since the birth of the child in 1998 and
that the mother's opposition to contact was based on a genuine
fear of the father.
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 the circumstances, it would be possible to achieve the
important objective of enabling the child to understand her
roots and identity as a child of mixed race and the judge's
decision not to grant direct contact was entirely in line
with the clear advice given in the psychiatric report.
In V, the child was a boy of nine. Although there had been
a history of violence culminating in a prison sentence for
the father, he had undergone treatment for anger management,
and the mother, accepting he was a changed person was prepared
to support direct contact; however the boy rejected the idea
In the psychiatric report the advice was that a child refusing
to see a parent must be listened to and taken seriously.
Here the judge had approached the case with the greatest care
and sensitivity and come to a cautious decision for indirect
contact with the best interests of the child uppermost in
That was a difficult and delicate balance and it would be
entirely wrong for the court to interfere with that exercise
In M, where the child was a boy of eight, the background of
violence had resulted in direct contact taking place over
a five-year period at a contact centre in the mother's presence.
In 1997, after an argument in the boy's presence, he said
he no longer wished to see the father and the psychiatrist,
Dr Lowenstein, who was jointly instructed, concluded that
that was a typical case of parent alienation syndrome which
required therapy to which the mother would not consent.
The psychiatric report indicated that that syndrome was not
generally recognised in child mental health specialities.
The judge had been reluctant to compel a child of that age
to undergo therapy against his mother's wishes and, applying
the welfare checklist, had come to the conclusion that the
only sensible order was for indirect contact that he was satisfied
the mother would not obstruct; a decision well within the
exercise of his discretion.
In H, the two children were born in 1990 and 1992. The mother,
who herself had an English mother and a Pakistani father married
a strict Muslim from Pakistan who was resident in Germany.
In 1995, following extreme threats of violence centered on
her refusal to conform to the strict requirements of the Muslim
faith, she fled with the children to England where she was
bringing them up in a western household.
The father's subsequent failure to invoke the Hague Convention
on the Civil Aspects of International Child Abduction 1980,
as set out in the Child Abduction and Custody Act 1985, had
had the result that the issues over the children now had to
be resolved in accordance with English domestic law under
the 1989 Act.
The judge, having found substantial violence by threats, a
cultural/religious clash of perceptions and the perceived
inability of the father to adapt to the present state of affairs,
had ordered indirect contact.
The psychiatric report had referred to the risk of undermining
a child where a parent deliberately or inadvertently set different
moral or behavioural standards.
Here a balance needed to be struck between those substantial
risks and the importance of providing the children with knowledge
of their religious and cultural background. The judge's decision
displayed no error in his approach to the exercise of discretion.
LORD JUSTICE THORPE, concurring, said that the listing of
the present appeals and the great assistance given by the
Official Solicitor, by Mr Posnansky and by the psychiatric
report, did not call for any adjustment of the approach adopted
by Mr Justice Wall in the Court of Appeal in In re H (Contact:
Domestic violence) ( 2 FLR 42) and in In re M (Minors)
(Contact: Violent parent (The Times November 24, 1998; 
2 FLR 321).
There was a spectrum within the broad categorisation of domestic
violence from the provoked slap to premeditated murder, and
an equally obvious distinction between past abuse that had
been acknowledged and addressed and continuing risk of future
violence if any opportunity was created.
The only direction that could be given to a trial judge was
to apply the welfare principle and the welfare checklist under
section 1(1) and (3) of the 1989 Act to the facts of the particular
LORD JUSTICE WALLER, also concurring, summarised the key points
emerging as follows:
1 That the effect of children being exposed to domestic violence
of one parent as against the other might up until now have
been underestimated by judges and advisers alike.
2 That alleged domestic violence was a matter which should
be investigated and findings of fact should be made because
if it was established, its effect on the children exposed
to it and the risk to the residential carer were highly relevant
factors in considering orders for contact and their form.
3 That in assessing the relevance of past domestic violence
it was likely to be highly material whether the perpetrator
had shown an ability to recognise the wrong he, or less commonly
she, had done and the steps taken to correct the deficiency
in that perpetrator's character.
4 That there should, however, be no presumption against contact
simply because domestic violence was alleged or proved. It
was one highly material factor among many which might offset
the assumption in favour of contact when the difficult balancing
exercise was carried out.
Solicitors: James Fitton & Co, Manchester; Mason &
Spencer Gibson, Wallington; Crisp & Co, Guildford.
Brain Chase Close, Basingstoke; Costertons, Sutton.
Bowling & Co; Saunders & Senior.
Copyright 2000 Times Newspapers Ltd.