It seems to me that the courts attitude towards domestic violence is a strict one, as evidence has shown that the court do not have to admit professionals opinions, the court must merely take into account and weigh their professional opinions and judgement as was held in F v West Berks AHA
Family Law Act 1996 – Part 4 – Domestic violence???
Human Rights and Future
With regards to the introduction of the Human Rights Act 1998, it was thought that there may be changes in the attitude towards parents’ rights of contact with their children. In the case of B v UK (1988), the European Court of Human Rights held that mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life. This has not been the case with numerous cases in English Law which has held the interests of the child as being paramount and most important, until recently where the European Court of Human Rights has interpreted differently as I will discuss later.
Even though the young people are more listened to and decisions taken in their best interests the domestic courts must take into account the non resident parents’ human rights when deciding the outcome of the case as was held in Somnerfeld v Germany (2003). In this case it was held that in deciding such cases the court should have credible expert opinions which should assess the child’s’ possible parental alienation syndrome which could be present in such cases. It also mentioned that the courts should be mindful of the Human Rights Convention on the rights of the child. In particular the courts are obliged to develop and undertake all actions and policies in light of the best interests of the child (article 3). They must also be mindful of article 9 which holds that courts must ensure that the child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that the child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except when it is not in the best interests of the child.
The German courts had held that being 13 years of age the girl would be old enough to make decisions herself and experts held that this was the case although the European Court of Human Rights held that the experts report was ‘superficial’ and a more in depth report should have been made especially in the light of the possibility of ‘parental alienation syndrome’. ***
In Re: S (minor) (independent representation) (1993) the court held that “children have different levels of understanding at the same age. And understanding is not absolute. It has to be assessed relative to the issues of the case”.
This is very objective and dependent on the facts of the case. It is a delicate and difficult issue to determine a child’s true wishes as was held in Re: CT (minor) (wardship: representation). The courts are more likely to seek to see a young person in private and even represent themselves in court in light of the Human Rights Act 1998 and possible breaches of Article 6 of the Convention of Human Rights.
It seems to me that it is a fine balancing act that the court must take. In Re: P (wardship: care and control) Butler-Sloss LJ stated “In all family cases it is the duty of the court to listen to the children, ascertain their wishes and feelings and then make decisions about their future, having regard to, but not restricted by those wishes”.
Re: F (minors) (denial of contact) 1993 2FLR 677 has stated that the views of 2 brothers aged 9 and 12 who did not want to have contact with their transsexual father was given great weight was correctly given.***LOOK
Re: B (minors) (change of surname) 1996 1 FLR 791 held that the views of adolescent children usually prevail in issues of contact and residence.
See Family Procedure Rules Rule 9.2A – representation
Sawyer – The competence of Children to participate in family proceedings (1995) CFLQ 7(4) 180
If a child has suffered from ‘parental alienation syndrome’ then it could be argued that the resident parent is not meeting the child’s needs, including the need to have contact with the other parent; see Re: A (minor) (custody) (1991) 2 FLR 394 @ 400
It could also be argued that if this was the case then the mother could be at risk of suffering harm in accordance with the welfare checklist, S.1(3)(e) which states it is an important factor if the child is at risk of suffering harm (physical or emotional).
The courts have made a wide ambit as to what covers harm defined in S. 1(3) checklist, especially when the harm to the child is indirect, especially in contact applications. This would encompass ‘parental alienation syndrome’ and/or domestic violence. A mothers fear of violence overrode the child’s right to see the other parent. In Re: L and others (2001) the courts said experts reports and the courts own awareness of a child’s likelihood of harm.
Circumstances of the other parent are also a factor which needs to be taken into account. B v B (minors) (custody, care and control) (1991) 1FLR402 held that expert witnesses is very important when assessing the risk of harm to children.
On a breakdown of an unmarried relationship where there are children, in order to clarify any arrangements and ensure they are as far as possible acknowledged in law and enforceable, it may still be necessary for the parents to seek a contact order. Orders can be sought in ‘family proceedings’.
Re: R (minor) (contact) (1993) 2 FLR 762
Re: D (minor) (contact: mothers hostility) (1993) 2 FLR 1 @ 3
“one starts with the premise that it is the child’s right to know both its parents but there may be cases…where there are cogent reasons why the child should be denied that opportunity”
Although there is no diversion from that position, there may be times when the court needs to take into account the effect of contact on the resident parent in cases of domestic violence Re: L and others (above). Before this case mothers who refused contact where seen as being ‘implacably hostile’, but since the rulings of this case the courts are more willing to accept such considerations in cases of domestic violence. They may even want a change in the violent partner’s behaviour before they would grant contact.
This has now seemed to be the approach in the court of appeal’s view, which has adopted various reports Report to the Lord Chancellor – Question of Parental in cases where there has been domestic violence, April 2000 HMSO following the Consultation Paper on Contact between children and violent parents 1999 HMSO
A case which I feel is bad law and was decided before the Human Rights Act came into force was Re: S (minor) (natural father:access) (1991) 2FLR 333…where a mother stopped a child from having contact with her father who she did not know was her father, as her mother wanted her to regard her step father as being her true father, as it was held that it would not be in the best interests to see the child.
Re: H (contact: principles) (1994) 2 FLR 696 has described Re: S ‘on its facts, a high watermark case’. The situation must now change with the introduction of the Human Rights Act, in particular Art 6, which entitles all persons to a ‘right to a private life’ for parents and children.
In Re: D (above) a child’s bad reaction to the reintroduction of contact was enough to rebut the presumption of contact even though the child’s mother was hostile towards the father. This case can be contrasted with Re:P (minor) (contact) (1994) 2 FLR 374 the high court did not reverse the magistrates decision to allow contact even though it was against expert evidence that it would have effected the mothers health.
However, the Court of Appeal has firmly stated in Re: L and others that the courts must take notice of any expert witnesses and/or opinions on the likely effect of contact on both the resident parent and the child in contact case where there has been a history of domestic violence.
Family Law Advisory Boards Report (2000) Fam Law 388 / reports (2000) Fam L615
It was held that domestic violence was not a presumption against contact, but it stated that it would be a highly motivational factor which needed to be taken into account by the court when assessing the contact application in conjunction with the welfare checklist.
The reports went on to say that the courts should maybe make the child’s contact a assumption and not a presumption and stated that judges and magistrates should be mindful of the effects of children who are exposed to domestic violence and the allegations if any should be investigated before any application for contact is heard. It also stated that if contact should be granted steps to minimise the risk of harm should be made and the safety of the child and residential parent during, before and after contact. The courts should be looking at the conduct of the non residential parent towards his child and the other parent. The court should also look at the motivation of the non residential parent to seek contact with his child.
In Re: O (contact: impositions of conditions) (1995) 2 FLR 124 the court of appeal said that it was always in the interests of the child to have contact with the non resident parent and the mothers’ hostility to contact is greeted with impatience by the court.
The court will take a hard line with any resident parent who breaks a contact order and will go as far as suspending a committal order if the resident parent does not comply with such an order. Indeed in Re: F (contact: committal) the court said there was a “clear obligation upon the mother to assist the children to come to terms with having contact with their father”.
Re: F can be contrasted with the recent case of Somnerfeld v Germany in that the European Court of Human Rights dissented in part, as they thought there was a risk of parental alienation syndrome. I would imagine if that condition was proven in the English courts then the court would take a very dismal view of the mother and the mother’s intentions, and maybe apply Re: F if the mother was at fault of such intimidation.
If the court however thought that there was a risk to the child whether it be direct or indirect then the courts would be more likely to follow the ruling in Re: D (contact: reasons for refusal) which seems to take a harder view of the fathers intentions. If the courts follow this approach then it would seem that the courts would be more likely to allow indirect contact if they thought there was risk of harm to the child either direct or indirect by committing harm to the mother. This approach is important as it paves the way for more stringent views of the court of appeal as was held in Re: L and others.
Other cases followed suit with Re: D in that a mothers fear or anxiety were held to be valid views to the court for reasons for not granting contact as was the case in Re: K (contact: mothers anxiety) the court adding that the mothers fears could well be enough to prevent contact with the non resident parent.
The approach was very much changed in the light of Re: L and others which stated that a careful approach must be taken especially with regards to cases of domestic violence and the mother’s implacable hostility. The courts will be more likely to grant contact if the non resident parent can show a change in his ways.
A stern court can make the mothers attitude better if the court hold the mother to be in contempt as was seen in Z v Z (refusal of contact: committal) (1996) Fam Law 255.
We can see a change of doctrine where the mother has breached an order for contact. The emphasis is usually on the child and what is in the child’s best interest, but when the mother is involved in committal proceedings the court of appeal has held that the child’s welfare is material, but not paramount.
As discussed earlier there has been various cases
Conclusion
The courts old approach that contact is in the child’s best interest has gone, but the court will need to see that the fathers behaviour towards mother and child has changed in order for the court to grant a contact order. The court would be more likely to grant supervised contact or indirect than no contact at all. Since the ruling in Somnerfeld v Germany the court must consider the fathers human rights as well as the mother and child when assessing the merits of the case.
There have been several human rights cases that have come before the court of human rights which discuss the issue of the rights of the father and hostility of the mother etc. In Hokkanen v Finland stated that a member state is in breach of article 8 if the court does not provide a way in which a father can have his right of contact.
The court of appeal has taken a more robust approach in that there should be a assumption and not a presumption of contact by the father. There is more focus, especially in domestic violence cases on how the father can change his pattern of behaviour if he is to gain contact with his child/children.
If the father omits to do something which is harmful to the child or by a positive act to the child then the court are certain to refuse the father contact until he has proved to the court that his actions and ways have changed for the better as was laid out in Re: L and others (above).
M v M (1973) reaffirmed in the Children Act 1989
Gillick v West Norfolk & Wisbech AHA (1986) – A child of sufficient maturity is allowed to make their own decisions, based upon a question of fact on the child’s age and understanding.
S.9 (6) Children Act 1989
Re: M (Minor) (Access) (1992)
(1989) 2 All ER 545 @ 569
To ‘gillick competence’ standard
Article 9 – Human Rights Convention on the rights of the child.
A v N (committal: refusal of contact) (1997) 1 FLR 533
Which relates to a right to a private and family right
Re: T (PR: contact) (1993) 2 FLR 450 – a father did not return the child when he was suppose to.
Re: P (terminating PR) (1995) 1 FLR 1048 – a father caused injury to the child