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Indirect and Suspension of Contact Case Law Menu

Indirect and Suspension of Contact

Mrs Justice Bracewell discussed at paragraph 10 the (then) lack of powers available to the court to address intractable contact disputes (prior to the Children and Adoption Act 2006 introducing new ´contact activity directions´ and ´enforcement powers´). She points out that indirect contact is the worst of options in addressing intractable cases (and in this case, there being parental alienation and substantial false allegations as a factor).

The judge transferred residence to the father.

The judge had not heard evidence on the possible benefits of counselling in relation to resolving the intractable contact dispute.

“Where an intractable dispute has resulted in the children refusing to see their father, the court should not terminate direct contact until every avenue has been explored , including counselling or therapy for the parents.” See paragraphs 37 & 38.

The mother had mental health problems and suffered periods of intense anger which caused the court, at trial, to suspend contact. The mother appealed. The appeal was rejected.

The mother had been told of the matters she needed to address to make contact work. Until those requirements were fulfilled, indirect contact had been ordered including letters, cards, presents and photographs.

Munby summarises relevant Human Rights case law (in particular appertaining to the Right to Family Life) as follows:

Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child´s welfare.
There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
The court should take a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
The key question, which requires ´stricter scrutiny´, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
All that said, at the end of the day the welfare of the child is paramount; the child´s interest must have precedence over any other consideration.

HHJ Marshall had ordered no direct contact. McFarlane, while acknowledging the trial judge had not erred in their interpretation of law, allowed the appeal as evidence supported that:

The father was committed to the children;
He had addressed concerns related to his anger management;
That there had in the past been positive contact.
An important point to note is the father having accepted and addressed previous concerns, opening the door to contact being re-established, and in contrast to the mother who had refused to engage in therapy.

In the absence of mother´s engaging in therapy which the trial judge had accepted was imperative, the judge had not ´grappled with all the alternatives that were open to her´. McFarlane recommended, in the continued absence of the mother engaging in therapy, that the Guardian for the children help facilitate contact, and ordered retrial.

An appeal against an order refusing contact. Findings had been made regarding domestic violence, but the appeal court found the decision to award no contact to be draconian. The judge had failed to consider what other measures could be introduced, including supervised contact, to address any risk to the children or the mother´s anxieties.

A successful appeal against the court having ordered no contact with CAFCASS supporting that decision.

The lower court had not considered alternatives which might allow the re-introduction of contact.

“14. The judge made no explicit reference to section 1(3)(g), which requires the court to consider the range of powers available to the court under the Act, other than by saying that he had full powers to deal with the case appropriately. In particular, he did not in terms consider the possibility of supervised direct contact. He therefore came to the conclusion that he must follow the recommendation of the court welfare officer. He said that he did so with a heavy heart, because he saw the father’s point:”
“… that if only she could take a few initial steps towards a meeting, that would bring her the reassurance that she craves, would dispel worries and concerns and everything would be fine.””
It is also worth noting paragraph 16:

“[16] The applicable legal principles are clear. First, the welfare of R is the paramount consideration for the court. It takes precedence over any other. Second, the court has in a series of cases stressed the importance of contact between parent and child as a fundamental element of family life, which is almost always in the interests of the child, and which is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only where it would be detrimental to the child’s welfare. The judge has a duty to promote such contact and to grapple with all available alternatives before abandoning hope of achieving some contact. Contact should be stopped only as a last resort and once it has become clear that the child will not benefit from continuing the attempt. The court should take a medium to long term view and not accord excessive weight to what appear likely to be short term and transient problems. The key question is whether the judge has taken all necessary steps to facilitate contact, as can reasonably be demanded in the circumstances of the particular case; Re C (a Child) [2011] EWCA Civ 521.”
The case is encouraging, and looks to the long-term in respect of the importance of assisting the rebuilding of the parent/child relationship. The child was 11 years old and there had been a gap of 7 years between contact, with indirect contact starting in 2012 which was unproductive. The lower court had left matters to the child in respect of contact happening in the future. At appeal, Lord Justice Christopher Clarke said:

“18. The effect of the judge´s order is to preclude all contact between father and daughter, even indirect, unless R should choose otherwise. It contains no provision which might encourage or facilitate contact in the absence of R making that choice. Such an order is rightly described as Draconian.”

The fourth of the released judgments related to the case where the mother abducted the child following the father having been granted sole residence.

The judge discusses the importance of both parents being involved in the child´s life, despite findings against the mother in respect of false allegations and the issue of her having abducted the child and failed to adhere to court orders.

“I am a circuit judge and so I do not pretend to speak with any authority; that voice of authority belongs with more senior judges than me. However, as a family lawyer of 35 years standing I think it essential that I set out my understanding of the legal position. The court is a public authority for the purposes of section 6 of the Human Rights Act 1998. As such it must ensure compliance with the European Convention on Human Rights. By Article 8 of that Convention it is provided that ´everyone has the right to respect for his private and family life, his home and his correspondence´. The right of a parent to spend time with his or her children is an essential element of family life. Interference by a court with that right can only be justified under Article 8(2) of the Convention if it is i) necessary; ii) proportionate to the issues in the case and iii) in accordance with the law.
The law, in this country, is provided by the Convention compliant provisions of Section One of the Children Act 1989. By that section the welfare of the child, Ethan, is the paramount consideration. The court must consider the welfare of the child by having regard, in particular, to various matters that are set out in a statutory welfare checklist in section 1(3) of The Children Act 1989. Nature, case law and common sense demand that it be recognised that it is the interests of a child to have an effective relationship with both parents if that can possibly be achieved.”

An appeal against an order for indirect contact alone. The appeal by the father was granted as the judge at first instance had failed to grapple with all of the available alternatives.

Fact had been found that the father had shown controlling behaviour, and there was also a finding in respect of one incidence of violence. The mother´s allegations of routine violence were not accepted.

There is now a wide body of case law showing successful appeal where the lower court fails in its duty to consider all of the powers granted to it under section 1(3)(g) of the Children Act 1989 before abandoning hope of achieving direct contact.

Costs of contact arrangements

Duty on parents to work to put aside differences

Child arrangements orders for shared living arrangements

Shared living arrangements – domestic relocation

Shared living arrangements – relocation abroad

Contact – The European Convention on Human Rights (ECHR)

Temporary Removal from Jurisdiction Case Law

Shared Living Arrangements Case Law

Section 91.14 Case Law

Reversal of Residence Case Law

Paternity Testing Case Law

Parental Alienation and Intractable Contact Dispute Case Law

Occupation Order Case Law

Without Notice And Non Molestation Order Case Law

Non Biological Parent Case Law

Leave to Remove Case Law

Jurisdiction Case Law

Interim Contact Case Law and Practice Directions

Indirect and Suspension of Contact

Internal Relocation Case Law

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