The aim of the Children Act 1989 was to simplify the law relating to children.
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?
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 ...
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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 out of 53 cases in the UK was contact eventually set up so that there was no further abuse or harassment of the parent and child. Most shockingly the quality of the child's relationship via contact with the absent parent was rarely questioned. Contact was not stopped until there was a strong evidence that child was suffering from abuse as a result of seeing the absent parent.
Pearson (1996) commented that the Children Act was being used for 'abuse preservation' rather than for the promotion of children's welfare. As the Act has not made provisions relating to the issue of domestic violence and the courts failure to address the risks contact was having an adverse effect. Hester & Radford addressed this adverse effect in the report and reasoned that it may be due to the fact that a better understanding amongst professionals of the impact of abuse upon women and children was required. Most importantly they recorded that there is a difference between what the Act stipulates regarding child welfare and fundamentally what judges believed the new legislation required them to do. Smart (1986) commented as far back as 1986 that it is inadequate to leave it to the courts when domestic violence arises since the courts cannot compel men with a history of violence to behave in a responsible manner.
Against a background of the presumption of a child's rights in both the national and international framework coupled with concern from various pressure groups, namely Women's Aid, a consultation paper was commissioned by the Lord Chancellor Department in 1999. The report 'Contact between Children and Violent Parents: the questions of parental contact in cases where these is domestic violence', made the long awaited recommendations which provide the Court of Appeal and the judiciary in general an opportunity to look afresh at the issue. The sub-committee was not persuaded that there was a need to amend the Children Act to address the issue of domestic violence. Nor were they convinced that a new legislative code to provide a presumption against contact where domestic violence is established was required. The strong recommendation was that there should be Good Practice Guidelines implemented by way of a Practice Direction from the Lord Chancellor.
Similar to Hester & Radford's report in 1996 the sub-committee haled that the issue of domestic violence in the context of contact between children and violent parents required a much better informed and more proactive approach from the professionals engaged in the Family Justice system. In their guidelines they stipulated that the courts should give early consideration to allegations of domestic violence and steps should be taken where the court forms the view that its order is likely to be affected if allegations of domestic violence are proved.
It maybe of some coincidence that the term implacable hostility received a softened approach in Re D (A Minor) (Contact: Mothers Hostility)5 where the mother's attitude was plainly regarded as significant. Lord Justice Balcombe commented that the implacable hostility of the mother towards contact was a factor, which was capable, according to the circumstances of each particular case, of supplying a cogent reason for departing from the premise that a child should grow up in the knowledge of both his parents. Again in Re K (Contact: Mothers Anxiety)6 the mothers concerns were regarded as important when the judge held that contact created intolerable anxiety for the mother and led to unmanageable stress for the child. Hillman (2002) stated that the same theme of giving greater weight to the causes underlying why extreme hostility may have come about, was seen in the following Court of Appeal cases below.
On the 19th June 2000 the President, Thorpe and Waller LJJ gave their judgements in Re L, V, M and H (Contact: Domestic Violence)7. These were four appeals in contact cases where a Circuit Judge against a background of domestic violence had refused the fathers' application for direct contact. Mr Jeremy Posnansky QC acted as amicus curiae in each case and had instructed two consultant psychiatrists, Dr's JC Sturge and JC Glaser to provide a report and advise in all four appeals. The psychiatric report pointed out, inter alia, the risks involved where direct contact might cause emotional abuse and damage, emphasising that the decisions about contact should be child centred and the purpose of the proposed contact should be abundantly clear, with the potential of benefiting the child. The view that there should be no assumption that contact to a violent parent was in the child's interests. If anything, the assumption should be in the opposite direction with the violent parent proving why he or she could offer something of benefit to the child. Tony Coe from the Equal Parenting Council responded to this by writing,
"The idea that a parent should have to prove the purpose of contact is plainly flawed - the purpose of contact is self-evident. It provided the child with parenting time. Should the custodial parent also prove that their parenting time has purpose?"8
While there should not be a presumption that, on the proof of domestic violence, the offending parent has to surmount to a prima facia barrier of no contact, it was one factor in a delicate balancing exercise of discretion. The two Doctors stipulated eight key points that they believed should be taken into consideration before a court passes judgement in contact dispute involving domestic violence,
(a) There should be an acknowledgement of the violence
(b) An acceptance of responsibility of the violence
(c) Full acceptance of the inappropriateness of the violence
(d) A genuine interest in the child's welfare
(e) A wish to make reparation with the child
(f) An expression of regret.
(g) Respect of the child's wishes.
(h) An indication that the parent seeking contact can reliably sustain contact in all senses.
In Re L, V, M & H9 the court was therefore assisted, by both the sub-committee report and the joint expert psychiatrists report, before reaching their conclusions in this important decision. The judge in Re L10 found that there had been a series of violent incidents since the birth of the child and the mother's opposition to contact was based on a genuine fear of the father. The risks to the child were obvious and the father, in refusing to face up to them, was clearly unable to reduce those risks. The judges decision not to award direct contact was entirely in line with the clear evidence given in the psychiatric report.
In Re V11 the father had been in prison for violence but had undergone treatment for anger management. The mother accepted he was a changed person but the boy rejected the idea outright. Sturge and Glaser advised in their report that a child refusing to see a parent must be listened to and taken seriously. The judge approached the case with sensitivity and came to a cautious decision for indirect contact with the best interests of the child uppermost in his mind.
In Re M12 contact had already taken place for five years. An argument had developed in the child's presence to which he said he no longer wanted to see the father. Dr Lowenstein who was instructed to provide a report concluded that this was a typical case of 'Parent Alienation Syndrome' which required therapy to which the mother refused. Dr's Sturge and Glaser indicated in their report that this syndrome was not generally recognised. The judge has been reluctant to force a child of eight to undergo therapy and in applying the welfare checklist, concluded that the only sensitive order was for indirect contact. Richard A Gardner M.D., Clinical Professor of Child Psychiatry at Colombia University rebutted the Doctors statement claiming that,
"Parent Alienation Syndrome is one highly specific source of children's implacable hostility, namely hostility indoctrinated in them by a hostile alienating parent against a good, loving parent who does not deserve to be the target of the children's ongoing campaign of denigration"
Justice Wall hit back at Richard Garner's comments in Neutral Citation [2003]13 commenting that parental alienation was merely a 'well-recognised phenomenon' and that he personally agreed with Dr's Sturge & Glaser's comments in Re L14 that this syndrome assumes a cause.
Finally in Re H15 following extreme threats of violence the mother fled to the UK with her children. The judge, having found substantial violence threats, a cultural/religious clash of perceptions and the perceived inability of the father to adapt to the present state of affairs, ordered indirect contact. The psychiatrist's report had referred to the risk of undermining a child where a parent deliberately or inadvertently set different moral or behavioural standards. In his judgement the judge clearly illustrated his approach to the exercise of discretion in the balance that was needed between substantial risks and the importance of providing the children with knowledge of their religious and cultural background.
Lord Justice Wallur summarised the key findings from these four appeals as follows. The effect of children being exposed to domestic violence of one parent as against another might up until now been underestimated by judges and advisors alike. Alleged domestic violence was a matter that should be investigated and findings of fact should be made when assessing the relevance the past violence it was likely to be highly material whether the perpetrator has shown an ability to recognise the wrong, he had taken steps to correct the deficiency. Finally he concluded that there should be no presumption against contact because domestic violence was alleged or proved. It was one highly material factor among many which might offset the assumption in favour of contact when the difficult balancing exercise was carried out.
The Guidelines have therefore now been partially incorporated into law. The Government announced on the 6th March 2001 that it endorsed CASC's report including the guidelines and would work in partnership with the President of the Family Division to ensure the widest possible distribution of the Guidelines. The department monitored the effectiveness of the Guidelines in cases.
It would emanate from the case law since these important judgements that the courts are giving domestic violence the consideration so rightly expected. Just over six months later in H v H16 the judge ordered no direct contact to a father relying heavily on the precedence set in Re L17. The mother and fathers evidence conflicted greatly however the trail judge held that the mothers evidence was to be preferred to the fathers and made findings of fact accordingly. It was shown that the mother had left the matrimonial home because of the chronic and serious violence inflicted on her. The child was present on every occasion that the violence took place. The court was not satisfied that the father would not use contact as a means to promote reconciliation with the mother. In accordance with the decision in Re L18 and the guidance from the expert court report, the judge found that there was no acknowledgement of the violence, no acknowledgement of the responsibility, no acceptance of the inappropriateness of the behaviour, no real evidence of any genuine interest in the child and no wish to make reparation or expression of regret. Although the judge ordered no direct contact, he did maintain that it was valuable to the child to know his father, thus indirect contact was ordered.
Another example of the courts use of the Good Practice Guidelines and reliance on the expert court report can be seen in M v A (Contact: Domestic Violence)19 where Judge Cryan denied a father direct contact with his son against a background of domestic violence. It was held that the emotional needs of the child were at the centre of what the court must consider. Direct contact with the child would adversely affect the child and would affect the emotional stability of the home.
The initial analysis indicated that where the Guidelines were being used they had a positive impact. A second survey is currently being undertaken. On the 19th March 2003 the Government published its response to the Children Act sub-committee report, Making Contact Work. This followed two years of consultation after the original report was published in 2002 on how to underpin contact arrangements between children and their non-residential parents. Although the report was not primarily about the issue of domestic violence it was addressed in the first recommendation from the report. The outcome of this recommendation was the introduction of new forms to ensure that judges are aware of, and address concerns about domestic violence, at the start of contact cases.
The government is aware that the issue of the enforcement of court ordered contact continues to be a major issue that needs further attention. What is important is that it is being addressed but will not be solved over night. On the 18th June 2003 the Government published Safety and Justice: The Governments Proposals on Domestic Violence. The consultation paper has asked whether or not the current child contact arrangements provide the right level of support and safety for all family members and if not what else should be done. Ministers are considering the responses to this paper before deciding on what action to take this summer.
To date there has been little research into the effects of enforced direct and in-direct contact on a child where there has been an element of domestic violence. The best interests of a child are the courts paramount consideration. To be able to act in full accordance with this principle further research is essential in this highly sensitive area.
Word Count: 3264
Bibliography
Butler-Sloss, E (2001) Contact and Domestic Violence, Australian Family Lawyer, Volume 15 No 2
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Table of Cases
A v N (Committal: Refusal of Contact) [1997] 1 FLR 533
M v A (Contact: Domestic Violence) [2002] 2 FLR 921
Re P (Contact: Implacable Hostility) [1996] 2 FLR 696
Re K (Contact: Mothers Anxiety) [1999] 2 FLR 703
H v H (2001)
Re R (A Minor) (Contact) [1993] 2 FLR
Re L (Contact: Domestic Violence) [2000] 2 FLR 334
Re V (Contact: Domestic Violence) [2002] 2 FLR 334
Re M (Contact: Domestic Violence) [2000) 2 FLR 334
Re H (Contact: Domestic Violence) [2002) 2 FLR 334
Neutral Citation [2003] EWHC 3031 (fam)
Re D (A Minor) (Contact: Mothers Hostility) [1999] 2 FLR 1
s8 (1) Children Act 1989
2 [1993] 2 FLR
3 1996
4 [1997] 1 FLR 533
5 [1999] 2 FLR 1
6 [1999] 2 FLR 703
7 [2000] 2 FLR 334
8 Making Contact Work (2002) p17
9 (Contact: Domestic Violence [2000] 2 FLR 334
0 (Contact: Domestic Violence [2000] 2 FLR 334
1 (Contact: Domestic Violence [2000] 2 FLR 334
2 (Contact: Domestic Violence [2000] 2 FLR 334
3 EWHC 3031 (fam)
4 (Contact: Domestic Violence) [2000] 2 FLR 334
5 (Contact: Domestic Violence [2000] 2 FLR 334
6 (2001)
7 (Contact: Domestic Violence [2000] 2 FLR 334
8 (Contact: Domestic Violence [2000] 2 FLR 334
9 [2002] FLR 2 921
99 00 20 59
LLB (Hons) Level 6
FAMILY LAW AND POLICY 2003/4