Child Contact after Domestic Abuse

There was an interesting case before the Court of Appeal this week which reminded us of how the Court deals with contact cases, where one parent has been abused by the other. The case I refer to is:

M (Children) [2013] EWCA Civ 1147

If you Google the full citation you will find the full judgement.

In brief; Just because a parent has abused the other, doesn’t mean that they shouldn’t see their children, or rather doesn’t mean that there is value in the children seeing the abusive parent within a format that is safe for the children.

In this particular case;

 The mother ‘escaped’ the family home with the three boys on 5 December 2011. She took up accommodation in a women’s refuge. She had been the victim of significant domestic violence over a prolonged period. The two elder boys had witnessed the father’s physical and verbal aggression towards their mother and other adults, are seen on occasions to have demonstrated/ acted out his pernicious influence and had themselves been subject to over and inappropriate chastisement albeit not in any sense to the same degree as that inflicted upon their mother. The father has criminal convictions. They are distant in time but all but one relate to violent behaviour, including causing grievous bodily harm with intent. Dr Bester, consultant child and adolescent forensic psychiatrist, considered that the father exhibited mixed traits of three personality disorders; “of dissocial and obsessional and emotionally unstable personality.” The mother voices fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father.

The boys have not seen the father since December 2011. He issued application for contact in January 2012. For a variety of reasons, none of which can be laid at the door of either party, the substantive hearing did not commence until 16 April 2013. Both mother and father were represented in the hearing. The father in the meantime had attended a number of courses aimed at addressing his violent behaviour.

The judge was “left in no do doubt whatsoever of [the mother’s] truthfulness, or of her real terror of [the father]…..I find that [the mother] is terrified of her husband and believes that he has the power to do her great harm” (Judgment para 18). As to the father, she found that in oral evidence he was “minimising his behaviour, attributing blame to the victim of his violence, denying what she said she had suffered……..there have been few if any lasting benefits of all the courses of therapy that [the father] has undertaken…He failed to satisfy me that he had learned anything from his engagement with the assessments and therapy save what he needed to say in order to attain his goal. He failed to persuade me that he had let go of his old beliefs and ways, failed to persuade me that he was not going to destabilise the family by continuing his violent, threatening, minimising behaviours, upsetting the children and harming them emotionally….he will continue to display these negative behaviours which will destabilise the children’s home and security, which are provided by their mother.”

… the relevant principles of law to be applied. The welfare of the child is paramount. A child’s continuing relationship with a non residential parent is highly desirable and contact should not be denied unless the child’s welfare demands it. Domestic violence is not, in itself, a bar to direct contact, but must be assessed in the circumstances as a whole…

I have emboldened these principles to highlight where the law stands.

Additionally, significantly in this case, and non controversially inter partes, the court must address Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom in respect of mother, father and each child; those ‘Convention’ rights undoubtedly engaged by the prospective court order. The child’s rights take priority above those of his parents…

Article 8 is the right to respect for private and family life

…

Realistically, accepting the judge’s primary findings, this father will not enjoy an unfettered relationship with his sons, if at all, for a considerable time to come. That said, it is unfortunate to regard a father’s aspiration for a less restricted contact regime to be destructive of the implementation of a heavily circumscribed regime if the acknowledged benefits of contact for these children can be achieved whilst assuring the mother’s safety and emotional stability.

… I conclude that the appeal should succeed on the ground that whilst the judge describes [the experts] evidence as “balanced and focused on the children’s psychological well being” and that it would be “highly desirable” if contact “can be achieved without undermining other aspects of their welfare”,[the Judge] fails to adequately address why the children’s safety and the management of mother’s anxieties cannot be achieved under any circumstances of supervision.

The evidence of [the expert] was unequivocal and implacably maintained during the hearing and under cross examination that this was possible. He advocated a review by the court after limited trial period.

The Court of Appeal sent the case back to the trial judge to look at again and in particular into the detail whether/how supervised contact could be achieved.

…

However, there is no question but that an order that there should be no contact between a child and his non residential parent is draconian. In this case, the order  [for no direct contact]dated 17 May 2013 can only be lawful within the meaning of Art 8(2) of the Convention if the order for no direct contact is necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm. In order to reach that conclusion the court must consider and discard all reasonable and available avenues which may otherwise promote the boys rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father.

Ultimately these cases are decided on their facts.

But the facts are decided by the Judge on the basis of the evidence.

The preparation of the case is therefore vital. A good Solicitor will work with their client to gather in as much relevant evidence as can be gathered. Care will be taken as to how this is then presented. The client needs to show themselves to be truthful, child focused and realistic (based on what the evidence shows). These are always difficult cases and need to be treated with great care. I have always been of the view that cases are decided in the office more often than in courtroom. Early analysis and preparation are everything.

Funding is also an issue. In most similar cases, the abused should still get Legal Aid (subject to a means test), but it is very unlikely that the abuser will. (Don’t get me going about how Legal Aid works now….)

But I cannot say enough how important it is that those who are victims of abuse seek help and assistance as early as possible. Not just Legal Advice, but also with specific services and with heath services and the police.

For those that have behaved abusively, they should own up to what they have done. Not just to others but to themselves, and they should seek appropriate therapy. That the father had done some work in the above case, was a significant factor in the above case.

But remember, these case are first and ultimately about the children, and their needs; safety, good and stable parenting in a loving home, and where possible a relationship with their family.