Griffiths v Griffiths
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 113 (Fam) |
| Year | 2022 |
| Court | Family Division |
2021 Oct 27, 28; 2022 Jan 20
Children - Orders with respect to children - Child arrangements order - Father found to have physically and sexually abused mother - Judge nevertheless making order for father to have direct and indirect contact with child with costs of contact to be shared between mother and father - Whether judge erring in ordering direct contact - Whether jurisdiction to order payment of contact costs - Whether judge erring in ordering victim of domestic abuse to contribute to costs of abuser’s contact with child -
Pursuant to a child arrangements order made under section 8 of the Children Act 1989F1 the father had supervised contact with the parties’ only child at a contact centre, with the costs of that contact shared between the parties equally. Following a subsequent fact-finding hearing the judge found that the mother’s allegations of, inter alia, rape, coercive control and physical, sexual and verbal abuse by the father over a prolonged period were proved. At a dispute resolution appointment the mother applied to suspend direct contact due to the impact it would have on the child and on herself. The judge ordered that there be both indirect contact and, subject to a risk assessment, direct contact at the contact centre, with the costs of the contact to be payable jointly by the parties. The mother appealed, contending: (i) that the judge had been wrong to order direct contact, having failed properly to apply FPR PD 12JF2 in doing so; and (ii) that section 11(7) of the 1989 Act did not empower the court to make orders concerning the payment of the costs of contact and, even if it did, a victim of rape or domestic abuse should never be required to share with the perpetrator the payment of such costs.
On the mother’s appeal—
Held, allowing the appeal, (1) that in making her decision to order direct contact the judge should have (i) given greater weight to the abuse the mother had suffered at the hands of the father, as required by FPR PD 12J, para 36(2), (ii) considered the emotional safety of the mother, as required by PD 12J, para 36(3), (iii) considered in greater depth the impact of contact on the mother, as required by PD 12J, para 37 and (iv) explicitly considered the findings she had made at the fact-finding hearing and how they influenced her decision on contact, as required by PD 12J, para 40; that since the judge had failed to consider all those aspects her order to continue direct contact had been premature; and that, accordingly, although indirect contact was to continue, the order for direct contact would be set aside and the issue of direct contact returned to be redetermined at first instance once the necessary expert’s report had been obtained, when detailed consideration of PD 12J should take place (post, paras 96–111, 114).
(2) That section 11(7) of the Children Act 1989 was intended to give the court a wide discretion to enable it to give the directions which it felt appropriate when making an order for contact, bearing in mind that the welfare of the child was the court’s paramount consideration pursuant to section 1 of the 1989 Act; that, thus, an order requiring a party to pay the costs of contact came within the wide ambit of what was permitted by section 11(7); that, however, there had to be a very strong presumption against the court making an order under section 11(7) that required a victim of domestic abuse to pay for the contact of their child with the abuser; that if, wholly exceptionally, the court had to consider making such an order, the matters which it might want to take into account included (a) the welfare checklist, including the age of the child, (b) the factors in FPR PD 12J, (c) the nature of the abuse proved or admitted and the parties’ conduct which the court considered relevant, (d) the impact of the abuse on the caregiver with consideration as to whether any payment would give rise to financial control, (e) the extent of the relationship between the child and the abusive party, (f) the nature of the section 8 order made, (g) the parties’ financial resources, (h) the cost of the contact and (i) whether, if contact was in the child’s best interests, it would take place without a sharing of the costs; and that, in the present case, the judge’s order that the mother pay a proportion of the costs of contact would be set aside (post, paras 53–57, 129–132, 134, 135).
The following cases are referred to in the judgment:
D (Children) (Contact Supervisor Remuneration), In re
H-N, In re (Practice Note)
Piglowska v Piglowski [
APPEAL from Judge Williscroft sitting in the Family Court at Derby
In June 2019 the father, Andrew James Griffiths, applied pursuant to section 8 of the Children Act 1989 for a child arrangements order in respect of the parties’ child, D. On 31 July 2019 the mother, Kate Elizabeth Griffiths, was ordered, inter alia, to make the child available for weekly supervised contact with the father at a contact centre but that contact was later suspended during the national lockdown arising from the Covid-19 pandemic. On 26 March 2020 the father applied for the cost of the contact centre to be met by the mother as he was unemployed and by an order dated 4 May 2020 the costs of the contact centre were directed to be shared equally between the parties upon its reopening. By a judgment dated 27 November 2020 Judge Williscroft made findings that the mother’s allegations against the father of domestic abuse, including rape, were proved. At a subsequent dispute resolution appointment on 4 June 2021 the judge ordered that indirect contact with the father continue to take place and that supervised direct contact be reintroduced subject to a suitable risk assessment from the contact centre. The order regulating the costs of the contact centre was left undisturbed.
On 20 August 2021 Lieven J granted the mother permission to appeal on the following grounds. (1) The judge had been wrong to order that the mother, a victim of rape, share the costs of supervised contact with her rapist, the father. That was wrong in principle, against public policy and breached the mother’s and the child’s rights under articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It was wrong in law for the family courts to interpret widely section 11(7) of the 1989 Act to the extent that a party was directed to pay for the costs of contact. (2) The law as presently interpreted by the family courts in permitting a rape victim to be ordered to pay a rapist’s contact costs was in breach of the mother’s articles 8 and 14 Convention rights. (3) The judge had been wrong to order direct contact and had not applied FPR PD 12J, para 36 in failing to consider the short, medium and long-term harm of contact on the mother and the child; and had failed to consider at all the father’s capacity to appreciate the effect of past domestic abuse in accordance with PD 12J, para 37(e). (4) The judge had been wrong in failing to apply PD 12J, para 40 and to explain by way of reference to the welfare checklist and the factors in PD 12J, paras 36 and 37 or otherwise why she took the view that domestic abuse having been proven, contact with the perpetrator would not expose the child to the risk of harm and was beneficial for the child.
The judgment was delivered in private and is reported with the leave of the judge on the basis that the anonymity of the child and members of their family (save for the named parents) be strictly preserved.
The facts are stated in the judgment, post, paras 1–26.
Charlotte Proudman (instructed by
Harry Nosworthy (instructed directly) for the father.
Timothy Bowe (instructed by
The court took time for consideration.
20 January 2022. ARBUTHNOT J handed down the following judgment.
Introduction1 On 20 August 2021, the mother’s application for permission to appeal was granted by Lieven J in relation to four grounds of appeal. A hearing took place in front of me on 27 and 28 October 2021. A week later the father asked that I recuse myself from the case on the grounds of bias or perceived bias. After some correspondence I refused, gave a short judgment and gave the father time to appeal that decision. That decision has not been appealed and it is now out of time.
2 The substantive appeal of Kate Griffiths was against parts of a child arrangements order made by Judge Williscroft sitting in the Family Court at Derby conducting a dispute resolution appointment (“DRA”) on 4 June 2021 in relation to proceedings brought by the father to enable him to have contact in a supervised setting with the mother and father’s child, D, who was born in 2018.
3 For convenience I will refer to the parties as “the father” and “the mother”.
4 I have been provided with a folder of documents including the skeleton arguments and the position statements of the parties. I have also been assisted by written findings of fact dated 26 November 2020 and the transcript of the ex tempore judgment of the DRA of 4 June 2021. Other evidence includes statements of the parties at various stages of the proceedings, a Cafcass section 7 report and separate submissions on the payment of contact costs. Lieven J permitted a risk assessment produced by a contact centre to be relied upon at the appeal. It had not been before Judge Williscroft.
5 The mother, father and guardian were all represented. Mr Nosworthy who was instructed by the father by direct access the day before the hearing was very helpful and had...
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