Child Contact

        Another case to illustrate the courts had been encouraging contact between a child and his father despite concerns from the carer can be seen in the case of Re F (Contact: Mother’s Anxiety) here, the father’s application for access to their children was dismissed because of the stress and anxiety it would cause to child’s mother. It was held too much weight was given to the mother’s health and was not cogent enough to justify an order depriving the children of any chance of getting to know their own father.

        The jurisprudence of the European Convention on Human Rights (ECHR) offers stronger support for a right to contact. Refusal of contact order induce parents or even child to argue on grounds of Art.8. The court has emphasized the importance of contact for both parent and child, stating in Kosmopolou v Greece that “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life”. Although Art.8 of the ECHR does not mention contact directly, it implies that a child has a right of contact with his or her parents and wider family as one part of their ‘right to respect for this private and family life’. A failure on the part of the State to take reasonable steps to enforce contact rights may lead to breach of the ECHR.

        To deny contact between a child and a parent is a serious issue. As it was held in Glaser v UK, Art.8 of the Human Rights convention ‘includes a right for a parent to have measures taken with a view to his or her being reunited with the child and an obligation of national authorities to take measures’ acknowledged that the obligation of national authorities to take measures to facilitate contact by a non-custodial parent after divorce was not absolute and that where it might appear to threaten the child’s interests or interfere with his or her Art.8 rights, it was for those authorities ‘to strike a fair balance between them

        The state has obligations to protect this aspect of family life, the key question being whether the authorities “have taken all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case”. Nevertheless, in Süss v Germany , the court held that there was no violation of Art.8 as the national courts’ decisions to suspend access “can be taken to have been made in the child’s best interest. Thus it is clear that even the European Convention affords no absolute right to contact, although it requires careful scrutiny of any decision to suspend contact.

        As far as child abduction is concerned, given that the decision of the residential parent to move to a different country may obviously have a profound impact on the other parent to maintain contact with the child, especially if a contact order is not enforceable in the jurisdiction where the child is living. The courts will attempt to balance the other parent’s right by two approaches. Firstly, the residential parent is required to bring the child back during holidays. Secondly, the courts will allow the non-residential parent to visit his child on a regular basis. Hence, it was felt that the courts have to some extent, reduce the infringement of non-residential part by still allowing continual contact.

        Another instance of where it is questionable if a child’s best interest is served by contact is where there has been a history of domestic abuse. The strength of assumption that contact is beneficial is demonstrated by the fact that there is no presumption against contact even in cases of domestic violence. However, an expert psychiatric evidence provided by Sturge and Glaser recommended that there should be an assumption against contact in cases of domestic violence, but the Court of Appeal rejected this recommendation. The courts has to decide on priority to secure the safety of the child and the resident parent.

        As a matter of principle, previous encounters of violence in the family does not per se justify a refusal of contact. Though, violence is obviously a factor for the court to consider. In the leading case, Re L, V, M & H (Contact - Domestic violence), the Court of Appeal refused direct contact to all four fathers who had attacked the children’s mothers, and only allowing them indirect contact. Butler-Sloss P said “there should be no automatic assumption that contact with a violent parent was in a child's interests”.

        Drawing on an expert report prepared by Sturge and Glaser on contact from a child and adolescent psychiatry perspective, Butler-Sloss LJ also commented the general principle that contact with the non-resident parent is in the interests of child, may sometimes have over-looked the adverse effects on children living in the household where violence has occurred.

        Ordinarily, as we have seen from case laws, the courts will not grant direct contact order in cases involving domestic violence. This is fair and right of child to contact may not said to be lost. As there is evidence that men who are violent to their partners may be violent also to their children. In addition, it has been said that a refusal of contact in cases of domestic violence where there is a risk of emotional destabilisation to the child promotes the child’s right to family life with its primary carer pursuant to Art.8 of the ECHR. 

        Generally, the court will grant the contact order. Where direct contact is not desirable or feasible, the courts have gone to extreme lengths to ensure indirect contact and this was stated in Re L (Contact: Transsexual Applicant). This shows the willingness of the courts to ensure contact. Even such indirect contact may be refused if it would affect the well-being of the child and the father’s right will be breached. If there are concerns about the safety of contact, courts will balance interests of all parties and may order a supervised contact and both parties can meet each other in a contact centre. Furthermore, In Re C (Abduction: Residence and Contact) it was held that the Human Rights Act (HRA) 1998 indicated that there was presumption in favour of normal contact and there had to be clear evidence to justify requiring contact to be supervised.

        Indeed, the courts persevere to achieve contact. It may be said that victims of domestic violence are not adequately protected in such cases, and this is very well an issue for particularly women who experienced domestic violence to be worried. More recently, Smart and May concluded that courts were still operating under an assumption in favour of contact and that courts would not deny contact in the absence of “substantial” proof of harm, or risk of harm, in the course of contact. Being said, right of child to enjoy contact has been upheld.

        In conclusion, in practice, the courts will order contact unless there are cogent reasons not to do so and this is well justifiable. Interference of rights must be in accordance with the law and must follow the legitimate aim of preserving the rights and welfare of the children. In other words, an infringement of an adult’s right to respect for private and family life can be justified if necessary to protect the children’s interests. Up until now, it was felt that the law does not strike the right balance between the interests of resident parents, non-resident parents and their children.

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