addressing contact difficulties
It goes without saying that, in most cases, it is in a child's
best interests to have meaningful contact with both of their
parents.
Where the relationship between children's parents has broken
down, a stable contact pattern can be difficult to achieve in
practice and will often require the court's intervention. This is
the case not only where one parent may be opposed to contact, or
tries to frustrate it , but also where unusual circumstances make
it difficult to agree what is indeed in the child's best interests.
Addressing these situations requires an armoury of practical
solutions as well as legal strategies and with an understanding of
case law and the services available to practitioners and their
clients; it seems that knowledge is power when addressing contact
difficulties.
The resounding message from case law in this area is that unless
contact would be damaging to the child (as established under the
Welfare checklist), contact should be going ahead and so if a
parent with care is denying contact, they must have a good reason
for this.
Allegations of domestic abuse or harm to the children by their
very nature cannot be taken lightly by the Court and require
sufficient investigation before a Court can determine whether
unrestricted contact can resume (or commence) with the parent
against whom allegations are made. In Re G (domestic violence)
[2000], the Court emphasised that whilst an allegation of
domestic abuse is not an automatic bar to contact taking place, it
does need to be considered very carefully by the Court. It is
beyond the scope of this article to focus on this subject in
sufficient detail, although what should be briefly touched upon are
the more regulated forms of contact that are available when there
is a concern about harm towards the children.
The procedure and considerations in Re L (a child) (contact:
domestic violence) [2000] have been widely applied in
subsequent cases. Here, the father of the child applied for contact
and the mother's objections were due to allegations of violence
against him. This case looks at ensuring that the Court have
sufficient information before them to assess whether the child
would be at harm or suffer from being in the care of the
non-resident parent: "such violence does not in itself
constitute a bar to contact, but is a factor in the difficult and
delicate balancing exercise of discretion." Inevitably, to
make the appropriate decision sufficient time is required to obtain
the necessary information, here by way of a fact-finding hearing
and psychiatrist's risk assessment. Depending on the facts of the
specific case, practitioners need to consider the benefits of
ensuring the degree of contact can continue between the alleged
perpetrator and the child, where appropriate.
Interim contact will be therefore be an issue. Practitioners
need to consider the merits of arguments for supervised contact or
indirect contact if the Court do not consider it appropriate to
order unsupervised contact. In Re W (Children) [2011] a
care order had been made and the Court ordered that the children
could have supervised contact with the father on two occasions,
supported contact at a contact centre for another two occasions and
then the matter should be determined by the Court to establish the
appropriate arrangements.
Whilst supervised contact can take place under the supervision
of an independent third party, due consideration should also be
given to whether a family friend or trusted relative could also
provide the necessary supervision whilst allowing both the parent
and the child to feel less inhibited and to benefit from the
contact still. As a practical point, having appropriate contact
supervisors lined up and willing to assist where necessary would
help in persuading a judge that there are eligible alternatives to
a more artificial environment.
Where there are unusual circumstances or the risk of harm to
children, it may be that as a temporary solution, contact may not
be possible beyond indirect contact. In Re C [2006]
contact had ceased for a number of years after the relationship
between the mother and the father of the two children involved had
deteriorated. During this period without contact, the father had
started to live as a woman and had undergone gender reassignment
surgery, unbeknown to the children and had issued a contact
application. Prior to fully determining the contact position,
indirect contact was ordered by way of cards to the children, as
there were concerns that the children would need to be informed of
their father's life style choice prior to a contact session.
However, in the Court of Appeal, because the facts are so unusual,
it was agreed that before contact could take place the children
would require professional support and guidance with NYAS and be
joined to the proceedings with NYAS acting as the guardian for the
children, so that they could come to terms with who their father is
and then suitable contact be established.
A similar approach has been taken in contact issues arising from
paternity cases, with the Court being keen to emphasise that
children should know their parents and, where appropriate, have a
contact pattern with them.
The case of Re T [2005] is a good example of how the
Courts being reluctant to inhibit or prevent contact unless this is
absolutely necessary for the benefit of the children in question
and suggest a more punitive approach to parents that needlessly
frustrate contact. Here the mother was generally anxious about
contact going ahead between the child and his father and made (what
transpired to be fictional and unsubstantiated) allegations of
sexual abuse against the father. Given the gravity of the
allegations, contact ceased until the Judge found that the boy was
at no risk of harm from the father and made a contact order in the
father's favour. Whilst the delay had needlessly deprived the child
of time with his father, the costs of having to go to the
fact-finding hearing and then two subsequent hearings meant had
been a needless expense to the father. An order for costs was made
against the mother, resulting from her poor litigation conduct, and
this was upheld in the Court of Appeal: "We also do not think
that, having properly set out the principles to be applied, she can
be criticised for introducing in that context the concept of
fairness in all the circumstances, or for stating that it would be
“an affront to justice to expect the father to pay for the costs of
defending himself” against the wholly unwarranted allegations of
sexual abuse which, on the judge's analysis, should never have been
brought. The appeal must accordingly be dismissed." The
father's costs sought, based on his assessment, of £20,000 although
total legal costs including dealing with the finances were in the
region of £110,000.
Under the Children and Adoption Act 2006, it is possible to
apply for committal proceedings where contact is continually
frustrated.
Again, in Re L-W (children) (contact order) the Court
of Appeal took a dim view of parents attempting to frustrate
contact. Here they were faced with a father who had care of the
child but continually frustrated contact between his son and the
mother. The contact was determined by a court order which had a
penal notice attached to it, given the protracted history of the
matter, although still this did not persuade the father to honour
his obligations under the order to "allow the mother to have
contact [with the child] and make him available for contact
accordingly" on dates that had been specified. The mother then
applied for enforcement of the order by way of committal and
compensation and had an order made with a penal notice attached to
this again, after the judge heard evidence that the child was
unhappy with the contact. She appealed this decision.
There are two key messages to take from this case. Firstly, it
is important that practitioners do not underestimate the
availability of enforcement proceedings and can recognise the time
to ask the Court to intervene. Secondly, this case serves as a
reminder that clear drafting is required to ensure that your
intentions are accurately recorded and to render the Order
sufficiently enforceable once under the scrutiny of a Judge if
needs be in enforcement proceedings.
Committal proceedings are not to be undertaken lightly, and will
only be successful where appropriate in cases where there is not a
sufficient reason for the contact to be disregarded by the parent
with care. However, in the face of intractable contact cases, they
should be viewed as the complete last resort. In Re L-W, Munby
LJ was of the view that:
"I cannot help but feeling that, on occasions, the
understandable reluctance to resort to such a drastic remedy as
committal means that when recourse to it is first proposed it is
too late for committal, whereas a willingness to grasp the nettle
by making a committal order at an earlier stage might have ended up
making all the difference."
Here, the intractable contact issues had been prolonged and
meant that the child had been influenced by his father's hostile
approach and was subsequently alienated, so that the fear of
experts was that the boy would be distressed by the imprisonment of
his father and would potentially be more hostile towards his mother
and would be unlikely to promote contact. For this reason alone,
the committal order would not stand and instead practitioners
should consider whether arguments for a short stage of committal
for a few days earlier on in cases of contact being frustrated
would be more appropriate.
However, had this not been the case, then there may have been
further difficulties in enforcing the Order, due to the fact that
one of the essential requirements is that to illustrate a mandatory
breach of an order, it would be essential to illustrate by
referring to the language of the order, what was exactly breached.
Here the order was drafted in a way so that the father denying the
contact had been required to 'make the child available for contact'
which he had mostly done except for a few occasions when he had
taken him home. He had not 'ensured' that contact had taken place,
but because there was no provision in the order for this, the
father was not technically in breach over all, inspite of the
hostile approach and effectively alienating the child against his
mother. It was conceded that whilst this was his parental and / or
moral duty to do this, unfortunately this was not the same thing as
proving that the legal duty existed and had subsequently been
breached. The mother was, however, entitled to compensation for the
cost of attending contact sessions that had not been upheld in
accordance with the order and constituted a breach.
The Children and Adoption Act 2006, provide some useful options
for facilitating and enforcing contact.
These include contact activity directions to require an
individual to take steps that will promote contact between the
him/her and the child, with common examples being to attend a
parenting class. The Court can also order that CAFCASS monitor this
attendance, with the purpose of this being to assess what sort of
contact order would be suitable. In Re W (Children), above, a
parenting programme was ordered in the interim to help him in his
parenting duties as a result of his violent history.
In addition to this, the Court can make a contact activity
condition in the order, although because this would have the power
of an order, it is important that this is appropriate and
achievable for the party subject to it. For example, it would not
be appropriate to impose a contact activity condition that would be
unduly onerous on one of the parent with care, so that this clashes
with them practising their religion or work.
To ensure that the condition is met, CAFCASS can be ordered to
monitor this and report back to the Court.
Whilst these steps are to promote appropriate contact going
ahead, there are also penalties in place such as financial
compensation to the party who has been deprived contact under an
order without good reason, as seen in Re L-W.
It is important to be clear that these steps are in place to
promote and enforce contact that has been ordered by the Court,
ultimately so that the best interests of the children are met going
forward.
Given the draconian nature of a committal order, there have been
suspended sentences ordered instead, where for various reasons this
has been sufficient to warn the party frustrating contact to
cooperate, with the threat of failing to comply resulting in a
committal. The reason behind this is that the purpose behind the
enforcement provisions is to ensure that contact goes ahead as it
should, as opposed to being an opportunity to act as an ace up the
sleeve of the non-resident parent in a parental power struggle.
Where committal may not be a viable option, there are other
options available to parents rather than using committal for
enforcement of a contact order. The case of Re M was similar to Re
L-W, in that contact had been denied and orders for contact
repeatedly breached. This is another instance of the parent with
care making a false allegation of the children being sexually
abused and it was determined that the pressure put on them to make
these allegations and keep up this charade was putting them at
harm, to the extent of an interim care order being made. On finding
that the allegations were unfounded, the father was granted a
residence order, so as to 'grasp the nettle' and to remove further
problems with contact going forward. Where the practicalities would
work for the parent denied the contact, this could be an attractive
option and has the advantage of ensuring that suitable contact is
maintained. He also mentioned the possibility of a shared residence
order in these circumstances.
