|
Law - R L Domestic Violence
RE L (CONTACT: DOMESTIC VIOLENCE);
RE V (CONTACT: DOMESTIC VIOLENCE);
RE M (CONTACT: DOMESTIC VIOLENCE);
RE H (CONTACT: DOMESTIC VIOLENCE) [2000] 2 FLR 334
[2000] 2 FLR 334 Court of Appeal
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.
(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 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.
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.
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.
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.
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.
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.
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.
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.’
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 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:
‘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 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.
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 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.
R
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.
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.
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 …’
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.
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.
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.
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
PHILIPPA JOHNSON
Barrister |
