The aim of the Children Act 1989 was to simplify the law relating to children.

Authors Avatar
Discuss the current debates in relation to contact orders and the absent parent

The aim of the Children Act 1989 was to simplify the law relating to children, making it more consistent and flexible. In essence the objective was to make the law more appropriate by making it child centred. Hester (2002) contended that the Act re-defined child care law, introducing new measures for working with children and families in both public and private family law. Generally speaking the Children Act has embodied a fresh approach to working with and for children, underpinned by the principle that the child's welfare is paramount. Under section 8 of the Children Act 1989 the court may make four types of order within family proceedings in respect of the child's welfare: a contact order, a residence order, a prohibited steps order and a specific issue order.

This report focuses primarily on contact orders and the problems that have been associated with them since the implementation of the Act. It will discuss in depth the issue of domestic violence and the concept of implacable hostility.

A contact order requires the person with whom the child lives or is to live to allow the child to visit or stay with the person named in the order or that person and the child otherwise to have contact with each other1. There has been a strong presumption since the introduction of the Children Act and the implementation of section 8 orders that contact with an absent parent is generally in the best interests of the child. The courts have maintained this presumption over the last ten years. In Re R (A Minor) (Contact)2 LJ Butler Sloss provided that,

"It is the right of a child to have a relationship with both parents wherever possible...when parents divorce the parent with whom the child does not live has a continuing role to play"

This approach effectively requires the parent with the residence order to demonstrate to the court why there should not be direct contact or supervised contact with the absent parent. So what happens when the parent with the residence order objects to allowing the absent parent contact with the child?

Within divorce proceedings mothers who bring up problems related to domestic violence within that context are often construed as 'implacably hostile'. Judges have held this as acting against the child's best interests of maintaining contact with the father. The concept of implacable hostility has altered over time. Smart et al (1997) commented that the term was historically seen as a principle given to mothers who objected to contact. In Re P (Contact: Discretion)3 the judge held that the mother's reasons should not be given any credit as her own fears and personal welfare are irrelevant. The notion of the implacably hostile mother developed in the course of a number of judgements revealing an increasingly tough line on parents who opposed contact.

It was an indication that the judges were taking a robust approach and not denying the absent parent contact unless the evidence is overwhelming. Smart et al (1997) claimed that the judge's robustness was inappropriate as it was seen as a way of bullying a vulnerable parent. The judiciary was also showing a greater willingness to employ coercive measures to enforce orders. In A v N (Committal: Refusal of Contact)4 the mother refused to allow contact between her daughter and the father against a background of violence. It was decided that the mother was being unreasonable and the judge sentenced her 42 days in prison. As a result the children were taken into care. In their summing up, Lord Justices Beldam and Ward said that

'It is more harmful for a child to grow up without a relationship with his father than to see their mother go to jail'.

Many authors have commented that there is lack of recognition within the Children Act in general and within the welfare checklist in particular, of the risks and practical problems faced by women and children experiencing domestic violence. The Children Act 1989 does not explicitly acknowledge the issue of domestic violence. There are ten volumes of guidance that accompany the Act yet there is no mention of domestic violence. It is also evident that there is no recognition that domestic violence is a key factor in the break up of many relationships. Divorce and separation is often the end result of extreme emotional tensions. Dowling et al (2000) comments that such situations do not usually put children at risk, although a recent analysis of case law seen by the Family Court Welfare Services within inner London suggests that violence may be present in up to 45% of families.

In November 2003 the Independent Newspapers (UK) Ltd reported that UK courts issue 46,000 contact orders every year. Only a mere 2.7% were refused in 2002. They reported that the United Kingdom was a country where a women is murdered by her partner every three days, that one women in four is the victim of domestic violence and that one in six applications for re-housing by local authorities comes from those fleeing violent partners. It is therefore consequential that any children in the relationship will see or hear one parent being brutally attacked by the other. It has not been until recently that the concept of risk of domestic violence has been identified as a factor requiring consideration. The question therefore is why has this issue taken so long to receive the appropriate measure of recognition by the judiciary in the United Kingdom?
Join now!


In 1996 Marianne Hestor and Lorraine Radford detailed a report which researched the issue of domestic violence and child contact arrangements in England and Denmark. Hester and Radford recommended that in circumstances of domestic violence, contact should not be presumed to be in the best interests of the child. The starting point should be a presumption of no contact, with the possibility of contact only if this can be arranged safely for both mother and child. The recommendation appeared valid considering the significant and alarming findings they reported on. From their research it was noted that only 7 ...

This is a preview of the whole essay