In the absence of a private agreement, the time each parent spends with a child following divorce or separation is decided by a Child Arrangements Order. These are made under s8 of The Children Act, 1989 and are always made in the best interests of the child. Establishing what these best interests are is often a lengthy exercise with evidence being brought in from Cafcass, parents, family members and in appropriate cases the local authority.
The court’s starting point is that, unless the contrary is shown, involvement of both parents in the life of the child will further the child’s welfare, if contact does not put the child in harm’s way. Courts will not hesitate to restrict time a parent spends with a child or impose conditions on the nature of the contact when necessary. In exceptional cases, such as the case of Re C a child between T and Z (2024) (discussed below) contact with a parent will be stopped altogether.
Stopping contact
Cases where courts decide to prevent a parent from having any contact – whether direct or indirect – are rare. In the case of Mother v Father (2024), discussed previously, a mother was prevented from having direct contact with her children for a certain period. She was however encouraged to have indirect contact by way of a monthly email. As we’ll see in Re C a child between T and Z (2024) an order was made preventing all contact between a father and the child – direct or direct.
Re C a child between T and Z (2024)
The case makes for uncomfortable reading providing as it does a detailed account of domestic abuse and violence suffered by the child and the mother. The judgment however represents a useful analysis of the legal framework that applies when a child arrangement order is sought against a backdrop of previous domestic abuse, including controlling and coercive behaviour. In addition to the Children Act’s ‘welfare checklist’ the courts must have regard to the Domestic abuse Family Procedure Rules Practice Direction 12J.
The facts can be summarised briefly as follows:
- In 2020 the father was imprisoned following conviction for controlling and coercive behaviour, assault by beating and threats to kill the mother
- At the criminal sentencing hearing the judge highlighted that during the events leading to the father’s conviction, the child was in fear of violence and suffered serious alarm and distress
- The father issued an application for a child arrangements order from prison in 2021 seeking direct contact with the child. He was released from prison o 2022
- There was a confused procedural history and several significant delays before the hearing (held remotely due to safety concerns)
- Evidence was heard from both parents, the local authority and Cafcass.
- The father had had previous children removed from his care because of his substance misuse and that of his then partner
- The child has addition al needs, with traits of ADHD, severe anxiety and sleep difficulties. An educational psychologist found that the child’s experience of domestic violence underpins these difficulties and helps explain the way he presents and the support he continues to need
- The Probation Service produced a risk assessment indicating that the risk towards the mother and child was high, and would increase if the father was allowed unsupervised contact
- The Cafcass officer’s report concluded that it would not be in the child’s best interests to have direct contact with the father. In court a senior Cafcass officer recommended a section 91(14) order until the child was 16. These orders are known as ‘barring orders’, and we discussed them in our article on Mother and Father (2024) referred to above
The Decision
When making a Child Arrangement Order the court weighs the facts of the case against the considerations set out in the welfare checklist in s1 of the Children Act, 1989. These include:
- The ascertainable wishes and feelings of the child concerned
- The physical, emotional and educational needs of the child
- Any harm which the child has suffered or is at risk of suffering
- How capable each of his parents is of meeting his needs
Because of the existence of domestic abuse in this case the court also had to consider the Domestic abuse Family Procedure Rules Practice Direction 12J. Among other things this direction requires a judge to ensure that where domestic abuse is admitted or proven, any child arrangements order must
- Protect the safety and wellbeing of the child and the parent with whom the child is living
- Not expose either of them to the risk of further harm, and
- Be in the best interest of the child
The direction further specifies that an order for contact should only be made if the court is satisfied that
- The physical and emotional safety of the child and the parent with whom the child is living can be secured before, during and after contact, and
- The parent with whom the child is living will not be subjected to further domestic abuse by the other parent
Following a review of the evidence and the applicable law the judge indicated that he had reached the ‘clear conclusion’ that the child should live with the mother and have no contact, directly or indirectly with the father.
In addition he ruled that the father should not exercise parental responsibility in relation to the child. For the avoidance of doubt he clarified that this meant the mother is not required to engage with the father in the exercise of any aspect of parental responsibility. The judge also made a barring order, preventing the father from making any further applications in relation to the child until he reached 18.
Comment
In his closing remarks the judge conceded that the order he was making for no contact was a rare one. Nevertheless the father’s conviction for coercive and controlling behaviour along with his continued abuse of the mother throughout the proceedings led the judge to conclude that this was a necessary and proportionate order. Any indirect contact would provide a route for the father to continue abusive behaviour towards the mother and to cause the child harm.
The lengthy examination of all the circumstances of the case, hearing from key witnesses, including Cafcass, the parents and the local authority show the lengths to which the courts will go to satisfy themselves that, as here, a no contact order is appropriate.
While the overriding principle that a child benefits from contact with both parents matters, cases like the one we have discussed show the courts will prohibit contact if the circumstances demand it.