Discuss, with reference to statutory provision and relevant case law, the extent to which, if at all, the courts achieve an effective balance between the right of the child to enjoy contact and the concerns (legitimate or otherwise) of the carer parent.

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(a) Discuss, with reference to statutory provision and relevant case law, the extent to which, if at all, the courts achieve an effective balance between the right of the child to enjoy contact and the concerns (legitimate or otherwise) of the carer parent.

An integral aspect of children’s rights is their right of enjoyment of contact. Contact encompasses many forms but predominantly employed in practice by the court are direct contact and indirect contact, the former means children spend time with their non-resident parent, whilst the latter allows the non resident parent or carer to be able to send letters and receive response from their children, but no face to face meetings take place. Whilst the courts are supportive of a child’s right to contact they tend to experience difficulties in contact disputes to balance this with the concerns of the carer parent. The concerns of the carer parent vary, but primarily are based upon the welfare of their child as parents are concerned that if contact is allowed their child may suffer psychical or mental harm and thus that contact would have a detrimental effect on their child’s development and upbringing. This difficulty is due to the fact that courts feel that contact is in favour of children in order to fully promote their development, but they also are apprehensive with regards to parental concerns. To some extent the courts achieve an effective balance between these two elements thorough the use assessments to ensure that whilst the child is able to enjoy contact they do not come to harm in order to address parental concerns these include: CAFCASS risk assessments, supervised contact and indirect contact. However to some extent the courts fail to achieve a balance when other circumstances are taken into account primarily: The child’s welfare is the courts paramount consideration which results in parental concerns being dismissed, and cases of abuse/murder during contact which have failed to address parental concerns.

In order to attain contact with their child the non carer parent can apply to the court for a contact order under S8 of the Children Act 1989. if the court enforces a contact order under S8 then the person with whom the child lives with is required to permit the child to visit or stay with the person named within the order or to allow contact between that person and the child. It is widely accepted that contact can have a highly positive effect on children, particularly in relation to their happiness and their growth as individuals. Indeed it is felt that contact is influential in the aiding of children reaching their emotional, physical and educational potential. Research has shown that regardless of the closeness between the mother-child relationships, the closer children were to their father meant that they were overall happier, more satisfied and less distressed. Additionally Drs Sturge and Glaper concluded contact fulfils a wide spectrum of purposes resulting in a great quantity of benefits including the meeting of the child’s needs for warmth, approval, feeling unique and special to a parent-experiences and that can be the foundation for healthy emotional growth and development, for extending experiences and developing (or maintaining) meaningful relationships, for information and knowledge, for reparation of distorted relationships or perceptions. This would suggest that in order to fully develop children need contact if and when it is possible and this is primarily why the court is supportive of contact if it is in the best interests of the child.

However in considering whether to grant or terminate a contact order the court will take into account CASCASS risk assessments. Section 7 of the Children and Adoption Act 2006 creates a new section 16A to the Children Act 1989 (CA 1989), the essence of the provision enclosed within subsection 16A(2) requires a CAFCASS officer to (i) construct a risk assessment of the child and (ii) to present this to the court.. This assessment will also combine information gathered at a later stage from inter agency checks by the police, local authority and child protection register. As stated by Malcolm Dodds the “courts often give weight to the recommendations in the Caffcass Report”, because  this presents potential risks which the court cannot ignore as to do so would undermine the principle that contact should not be ceased unless it is in the best interests of the child.  The importance the court places on CAFCASS reports can be seen in RE H (Contact Domestic Abuse)  where the court took into account Cafcass reports when a mother refused contact to the father, The CAFCASS Reporting Officer (CRO) reported that the mother strongly objected to contact based on: (a) her fear of the father; (b) the father's violence to her, witnessed by the child; and (c) his cruelty to the child.  risk assessments allow the court to balance a child’s right to contact with parental concerns, because court allows the child contact but this is subject to their safety, as the effect of risk assessments is to present assessment of the treatment of the child and the potential risks. This also allows courts to assess whether there is basis for parental concerns, so that if none are genuine but mere implacable hostility towards the child gaining contact with the non resident parent; they can enforce a contact order. Courts will not reject contact due to implacable hostility of the carer parent to contact unless the child is proven to be at risk. This is evident from the case of V v V   where the Bracewell J stated that the father, who was 'sensitive to the needs of the children, caring, truthful, and … wanting to put his children first', was being thwarted by the opposition of the mother”. Further in RE D the court concluded the mother’s refusal of contact with the father based on her fear of the father’s violence was genuine and the court suggested that “in cases of implacable hostility the court will be looking for evidence of a serious risk of emotional harm before it accepts that there should be no contact”. However too much reliance placed on the caffcass and local authority assessments by the courts is questionable  in relation to contact decisions because they are not always correct either of these parties can make incorrect assessments. The failure of local authorities can be seen in the recent Baby P Case where the local authorities failed to recognise the extent of abuse Baby P was being subjected to by his carers despite prolonged investigations; which resulted in his death.

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Additionally employed by the courts to achieve a balance is supervised contact and indirect contact. Supervised contact essentially means that during contact another adult is present. This type of contact is exemplified by the case of RE H ,a contact dispute involving the Father's illness causing violent behaviour towards his wife, which the wife argued was dangerous to the children. The Court found taking into account that the father in his current state of mind was unlikely to endanger his children, however he did have a physical capacity to be able to harm them which was a risk that could ...

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