Addressing contact difficulties

Posted by Catherine Morgan on
It goes without saying that, in most cases, it is in a child's best interests to have meaningful contact with both of their parents.

Where the relationship between children's parents has broken down, a stable contact pattern can be difficult to achieve in practice and will often require the court's intervention. This is the case not only where one parent may be opposed to contact, or tries to frustrate it , but also where unusual circumstances make it difficult to agree what is indeed in the child's best interests.

Addressing these situations requires an armoury of practical solutions as well as legal strategies and with an understanding of case law and the services available to practitioners and their clients; it seems that knowledge is power when addressing contact difficulties.

The resounding message from case law in this area is that unless contact would be damaging to the child (as established under the Welfare checklist), contact should be going ahead and so if a parent with care is denying contact, they must have a good reason for this.

Allegations of domestic abuse or harm to the children by their very nature cannot be taken lightly by the Court and require sufficient investigation before a Court can determine whether unrestricted contact can resume (or commence) with the parent against whom allegations are made.

In Re G (domestic violence) [2000], the Court emphasised that whilst an allegation of domestic abuse is not an automatic bar to contact taking place, it does need to be considered very carefully by the Court. It is beyond the scope of this article to focus on this subject in sufficient detail, although what should be briefly touched upon are the more regulated forms of contact that are available when there is a concern about harm towards the children.

The procedure and considerations in Re L (a child) (contact: domestic violence) [2000] have been widely applied in subsequent cases. Here, the father of the child applied for contact and the mother's objections were due to allegations of violence against him. This case looks at ensuring that the Court have sufficient information before them to assess whether the child would be at harm or suffer from being in the care of the non-resident parent: "such violence does not in itself constitute a bar to contact, but is a factor in the difficult and delicate balancing exercise of discretion." Inevitably, to make the appropriate decision sufficient time is required to obtain the necessary information, here by way of a fact-finding hearing and psychiatrist's risk assessment.

Depending on the facts of the specific case, practitioners need to consider the benefits of ensuring the degree of contact can continue between the alleged perpetrator and the child, where appropriate.

Interim contact will be therefore be an issue. Practitioners need to consider the merits of arguments for supervised contact or indirect contact if the Court do not consider it appropriate to order unsupervised contact. In Re W (Children) [2011] a care order had been made and the Court ordered that the children could have supervised contact with the father on two occasions, supported contact at a contact centre for another two occasions and then the matter should be determined by the Court to establish the appropriate arrangements.

Whilst supervised contact can take place under the supervision of an independent third party, due consideration should also be given to whether a family friend or trusted relative could also provide the necessary supervision whilst allowing both the parent and the child to feel less inhibited and to benefit from the contact still. As a practical point, having appropriate contact supervisors lined up and willing to assist where necessary would help in persuading a judge that there are eligible alternatives to a more artificial environment.

Where there are unusual circumstances or the risk of harm to children, it may be that as a temporary solution, contact may not be possible beyond indirect contact. In Re C [2006] contact had ceased for a number of years after the relationship between the mother and the father of the two children involved had deteriorated. During this period without contact, the father had started to live as a woman and had undergone gender reassignment surgery, unbeknown to the children and had issued a contact application. Prior to fully determining the contact position, indirect contact was ordered by way of cards to the children, as there were concerns that the children would need to be informed of their father's life style choice prior to a contact session.

However, in the Court of Appeal, because the facts are so unusual, it was agreed that before contact could take place the children would require professional support and guidance with NYAS and be joined to the proceedings with NYAS acting as the guardian for the children, so that they could come to terms with who their father is and then suitable contact be established.

A similar approach has been taken in contact issues arising from paternity cases, with the Court being keen to emphasise that children should know their parents and, where appropriate, have a contact pattern with them.

The case of Re T [2005] is a good example of how the Courts being reluctant to inhibit or prevent contact unless this is absolutely necessary for the benefit of the children in question and suggest a more punitive approach to parents that needlessly frustrate contact. Here the mother was generally anxious about contact going ahead between the child and his father and made (what transpired to be fictional and unsubstantiated) allegations of sexual abuse against the father. Given the gravity of the allegations, contact ceased until the Judge found that the boy was at no risk of harm from the father and made a contact order in the father's favour. Whilst the delay had needlessly deprived the child of time with his father, the costs of having to go to the fact-finding hearing and then two subsequent hearings meant had been a needless expense to the father.

An order for costs was made against the mother, resulting from her poor litigation conduct, and this was upheld in the Court of Appeal: "We also do not think that, having properly set out the principles to be applied, she can be criticised for introducing in that context the concept of fairness in all the circumstances, or for stating that it would be “an affront to justice to expect the father to pay for the costs of defending himself” against the wholly unwarranted allegations of sexual abuse which, on the judge's analysis, should never have been brought. The appeal must accordingly be dismissed." The father's costs sought, based on his assessment, of £20,000 although total legal costs including dealing with the finances were in the region of £110,000.

Under the Children and Adoption Act 2006, it is possible to apply for committal proceedings where contact is continually frustrated.

Again, in Re L-W (children) (contact order) the Court of Appeal took a dim view of parents attempting to frustrate contact. Here they were faced with a father who had care of the child but continually frustrated contact between his son and the mother. The contact was determined by a court order which had a penal notice attached to it, given the protracted history of the matter, although still this did not persuade the father to honour his obligations under the order to "allow the mother to have contact [with the child] and make him available for contact accordingly" on dates that had been specified. The mother then applied for enforcement of the order by way of committal and compensation and had an order made with a penal notice attached to this again, after the judge heard evidence that the child was unhappy with the contact. She appealed this decision.

There are two key messages to take from this case. Firstly, it is important that practitioners do not underestimate the availability of enforcement proceedings and can recognise the time to ask the Court to intervene. Secondly, this case serves as a reminder that clear drafting is required to ensure that your intentions are accurately recorded and to render the Order sufficiently enforceable once under the scrutiny of a Judge if needs be in enforcement proceedings.

Committal proceedings are not to be undertaken lightly, and will only be successful where appropriate in cases where there is not a sufficient reason for the contact to be disregarded by the parent with care. However, in the face of intractable contact cases, they should be viewed as the complete last resort. In Re L-W, Munby LJ was of the view that:

"I cannot help but feeling that, on occasions, the understandable reluctance to resort to such a drastic remedy as committal means that when recourse to it is first proposed it is too late for committal, whereas a willingness to grasp the nettle by making a committal order at an earlier stage might have ended up making all the difference."

Here, the intractable contact issues had been prolonged and meant that the child had been influenced by his father's hostile approach and was subsequently alienated, so that the fear of experts was that the boy would be distressed by the imprisonment of his father and would potentially be more hostile towards his mother and would be unlikely to promote contact. For this reason alone, the committal order would not stand and instead practitioners should consider whether arguments for a short stage of committal for a few days earlier on in cases of contact being frustrated would be more appropriate.

However, had this not been the case, then there may have been further difficulties in enforcing the Order, due to the fact that one of the essential requirements is that to illustrate a mandatory breach of an order, it would be essential to illustrate by referring to the language of the order, what was exactly breached. Here the order was drafted in a way so that the father denying the contact had been required to 'make the child available for contact' which he had mostly done except for a few occasions when he had taken him home. He had not 'ensured' that contact had taken place, but because there was no provision in the order for this, the father was not technically in breach over all, inspite of the hostile approach and effectively alienating the child against his mother.

It was conceded that whilst this was his parental and / or moral duty to do this, unfortunately this was not the same thing as proving that the legal duty existed and had subsequently been breached. The mother was, however, entitled to compensation for the cost of attending contact sessions that had not been upheld in accordance with the order and constituted a breach.

The Children and Adoption Act 2006, provide some useful options for facilitating and enforcing contact.

These include contact activity directions to require an individual to take steps that will promote contact between the him/her and the child, with common examples being to attend a parenting class. The Court can also order that CAFCASS monitor this attendance, with the purpose of this being to assess what sort of contact order would be suitable. In Re W (Children), above, a parenting programme was ordered in the interim to help him in his parenting duties as a result of his violent history.

In addition to this, the Court can make a contact activity condition in the order, although because this would have the power of an order, it is important that this is appropriate and achievable for the party subject to it. For example, it would not be appropriate to impose a contact activity condition that would be unduly onerous on one of the parent with care, so that this clashes with them practising their religion or work.

To ensure that the condition is met, CAFCASS can be ordered to monitor this and report back to the Court.

Whilst these steps are to promote appropriate contact going ahead, there are also penalties in place such as financial compensation to the party who has been deprived contact under an order without good reason, as seen in Re L-W.

It is important to be clear that these steps are in place to promote and enforce contact that has been ordered by the Court, ultimately so that the best interests of the children are met going forward.

Given the draconian nature of a committal order, there have been suspended sentences ordered instead, where for various reasons this has been sufficient to warn the party frustrating contact to cooperate, with the threat of failing to comply resulting in a committal. The reason behind this is that the purpose behind the enforcement provisions is to ensure that contact goes ahead as it should, as opposed to being an opportunity to act as an ace up the sleeve of the non-resident parent in a parental power struggle.

Where committal may not be a viable option, there are other options available to parents rather than using committal for enforcement of a contact order. The case of Re M was similar to Re L-W, in that contact had been denied and orders for contact repeatedly breached. This is another instance of the parent with care making a false allegation of the children being sexually abused and it was determined that the pressure put on them to make these allegations and keep up this charade was putting them at harm, to the extent of an interim care order being made.

On finding that the allegations were unfounded, the father was granted a residence order, so as to 'grasp the nettle' and to remove further problems with contact going forward. Where the practicalities would work for the parent denied the contact, this could be an attractive option and has the advantage of ensuring that suitable contact is maintained. He also mentioned the possibility of a shared residence order in these circumstances.

About the Author

Catherine is a Family Law solicitor and a Resolution accredited specialist, she advises clients in divorce/civil partnership proceedings, financial remedy negotiations and in private law Children Act matters, as well as Cohabitants' disputes and in drafting Deeds of Cohabitation and Pre-Nuptial/Post-Nuptial Agreements.

Catherine Morgan
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