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Family analysis: How will the court approach an application for contact in a case involving allegations of domestic abuse? Ella Calnan, barrister at Fourteen, considers the issues raised in the recent case of Re A.
Re A (A child) (Supervised contact order: assessment of impact of domestic violence)  EWCA Civ 486,  All ER (D) 198 (May)
The mother appealed against an order providing for the parties' child (R) to have supervised contact with her father. The Court of Appeal, in dismissing the appeal, held, among other things, that it was clear that the judge had given full and proper consideration to each of the relevant factors necessary for the risk assessment required by section 1 of the Children Act 1989 (ChA 1989) and the Family Procedure Rules 2010, SI 2010/2955, PD 12J (FPR 2010). His conclusion that face-to-face contact was in R's best interests, in a supervised setting, was justified on the basis of that risk assessment and was a conclusion that had been well within the range of justifiable welfare determinations.
What key issues did this case raise?
The Court of Appeal considered an appeal against an order providing for weekly supervised contact between a girl of three years and her father. The order under appeal was made following a fact-finding hearing where the judge found that the father had been guilty of abusive sexual conduct towards the mother, including marital rape, during the course of the parties' marriage and made a number of other findings of 'low level' domestic violence perpetrated by the father against the mother.
The mother appealed the order for supervised contact on the following grounds:
The mother sought an order for there to be no direct contact between the child and the father for the time being, or at least until the mother had undertaken a course of cognitive behavioural therapy.
The mother's appeal was dismissed by the Court of Appeal.
What are the common issues in this area of law?
One of the interesting aspects of this case, although not a point raised on appeal, is that notwithstanding the father's refusal to accept the findings made against him, the judge ordered weekly supervised contact. Practitioners will be familiar with cases where such a refusal leads to an impasse along these lines:
It is not apparent from the judgment in Re A (A child) whether it was envisaged that contact would remain supervised unless the father completed an appropriate domestic violence awareness course or if the longer term sustainability of supervised contact was in issue. It may well be, in a case such as this where the risk factors were relatively low (the father was found to pose no physical or sexual risk to the child), that acceptance of the court's findings and completion of a domestic violence awareness course would not necessarily be a pre-condition to unsupervised contact in the future.
One of the other issues raised by this case is that of the emotional impact on the victim of domestic abuse consequent on the fact of contact between the perpetrator and the child and the corresponding impact on the child. The mother had suffered post-traumatic stress disorder as a result of the serious sexual abuse the court found she had been subjected to by the father. It was clear that she would find contact between the father and the child very difficult, indeed the court found that she was 'irrationally vulnerable to any re-introduction of the father into the life of their daughter'. However, importantly, the court also considered that the mother was 'robust' and that while she would struggle emotionally with contact she would nonetheless protect the child from her feelings. There are of course cases where the emotional impact of contact on the parent with care of the child may be severe, and have a corresponding significant impact on the parent's ability to care for the child, so that the court will consider making an order for no direct contact, but these cases will be very rare.
Did the judgment help to clarify any grey areas?
The current practice requirements on private law children cases involving domestic abuse are contained in FPR 2010, SI 2010/2955, PD 12J and in the case of Re L. The Practice Direction sets out the matters which the court must consider in these cases, ie that (at para 36):
'In the light of any findings of fact the court should apply the individual matters in the welfare checklist with reference to those findings; in particular, where relevant findings of domestic violence or abuse have been made, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that violence or abuse, and any harm which the child and the parent with whom the child is living, is at risk of suffering if a child arrangements order is made. The court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further controlling or coercive behaviour by the other parent.'
and PD 12J, para 37, provision that:
'In every case where a finding of domestic violence or abuse is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider--
(a) the effect of the domestic violence or abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic violence or abuse on the child and its effect on the child's relationship with the parents;
(c) whether the applicant parent is motivated by a desire to promote the best interests of the child or is using the process to continue a process of violence, abuse, intimidation or harassment or controlling or coercive behaviour against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past violence or abuse and the potential for future violence or abuse.'
Butler Sloss P (as she then was) provided the following guidance in Re L:
'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.'
In Re A (A child) the judge did not directly refer to PD 12J, or the decision of the Court of Appeal in Re L, when he gave his reasons for ordering supervised contact. The Court of Appeal was critical of this omission, but held that the judge had in fact considered all of the relevant issues. Practitioners involved in cases concerning domestic violence should ensure that the guidelines set out above are brought to the judge's attention.
What should lawyers advising in this area of law take from this case? Do you have any best practice tips?
In cases concerning allegations of domestic abuse pertinent to the arrangements between a child and their parent, a fact-finding hearing will ordinarily be necessary and directions should be made at the first hearing dispute resolution appointment. It is important that detailed evidence is provided about each allegation, since all too often the courts are faced with imprecise allegations which can be difficult to assess. The final welfare determination will of course be a balancing exercise, weighing up any risks to the child posed by contact versus the risks to the child of not having a relationship, or a limited relationship, with the other parent, and an assessment of if and how such risks can best be mitigated. In cases where it is said that a victim of domestic abuse will suffer emotional harm consequent on contact between a child and the other parent such that the child would also be impacted, an application for a psychiatric assessment (pursuant to FPR 2010, SI 2010/2955, Pt 25) should be considered at the conclusion of the fact-finding hearing. For practitioners advising parents who have been found to have perpetrated domestic abuse, the motivation for contact with the child, and the parent's willingness to engage with the findings of the court, will be important considerations. Some of the most difficult cases are those where the court has found that the perpetrator of domestic violence will seek to use contact with the child to continue to exert control/abuse on the other parent. Contact in such cases may well be restricted to formal supervision in a contact centre, with appropriate arrangements for handover, and in some cases, there may be no direct contact at all.
Interviewed by Diana Bentley.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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