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Law - Domestic Violence - Contact Orders

Effect of domestic violence on contact orders
The Times - Law Report - Court of Appeal
Wednesday June 21 2000

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)

Before Dame Elizabeth Butler-Sloss, President, Lord Justice Thorpe and Lord Justice Waller
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 secured.
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 the father.
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 the mother.
Mr Richard Bates for M's father; Mr John Ker-Reid for the mother.
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 contact.
In re L
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 re V
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 outright.
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 his mind.
That was a difficult and delicate balance and it would be entirely wrong for the court to interfere with that exercise of discretion.
In re M
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 re H
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) ([1998] 2 FLR 42) and in In re M (Minors) (Contact: Violent parent (The Times November 24, 1998; [1999] 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 case.
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 & Co, Manchester.
Spencer Gibson, Wallington; Crisp & Co, Guildford.
Brain Chase Close, Basingstoke; Costertons, Sutton.
Bowling & Co; Saunders & Senior.
Official Solicitor.
Copyright 2000 Times Newspapers Ltd.

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