Re A, v, M, H (Contact: Domestic Violence)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,Lord Justice Thorpe,Lord Justice Waller |
| Judgment Date | 19 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0619-8 |
| Docket Number | CCFMI 1999/1098B1 CCFMI 1999/1166/B1 PTA + A 1999/7817/B1 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2000 |
[2000] EWCA Civ J0619-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(His Honour Judge Allweis);
KINGSTON-UPON-THAMES COUNTY COURT
(His Honour Judge Bishop);
BASINGSTOKE COUNTY COURT
(His Honour Judge Rudd);
NORWICH COUNTY COURT
(His Honour Judge Barham)
Royal Courts of Justice
Strand
London WC2
The President Of The Family Division
(dame Elizabeth Butler-sloss)
Lord Justice Thorpe
Lord Justice Waller
CCFMI 1999/1098B1
CCFMI 2000/1098/B1
CCFMI 1999/1166/B1
PTA + A 1999/7817/B1
MISS MARGARET de HASS QC and MISS RUTH SUTTON (Instructed by Messrs Jones Fitton & Co, Manchester M14 6LD) appeared on behalf of the Appellant
MR ERNEST RYDER QC and MISS J CHEETHAM (Instructed by Messrs Masons & Co, Manchester M3 3NE) appeared on behalf of the Respondent
MR CHARLES HOWARD QC (Instructed by Spencer Gibson, Wallington SM6 8QF) appeared on behalf of the Appellant
MR ANDREW BAGCHI (Instructed by Messrs Costertons, Surrey) appeared on behalf of the Respondent
MR RICHARD BATES (Instructed by Messrs Crisp & Co, Guildford GU2 5BU) appeared on behalf of the Appellant
MR JOHN KER-REID (Instructed by Messrs Bran Chase & Coles, Basingstoke) appeared on behalf of the Respondent
MISS AYESHA HASAN (Instructed by Messrs Bowling & Co, London E15 1NP) appeared on behalf of the Appellant
MR ALLAN LEVY QC and MISS JANE DAVIES (Instructed by Messrs Saunders & Senior, Norwich NR2 1AQ) appeared on behalf of the Respondent
These four appeals on issues arising out of contact applications have certain features in common. In each case a father`s application for direct contact has been refused by the circuit judge against a background of domestic violence between the spouses or partners. We are grateful to Wall J, the Chairman of the Children Act Sub-Committee of the Advisory Board on Family Law, for permission to look at their Report on parental contact in domestic violence cases and their recommendations recently presented to the Lord Chancellor and now published. At our request, the Official Solicitor acted as Amicus in each case and we are most grateful to him for instructing Dr J.C. Sturge, consultant child psychiatrist in consultation with Dr Glaser, consultant child psychiatrist to provide a joint report and to advise on the four appeals and to Mr Posnansky QC, on behalf of the Official Solicitor, for the helpful arguments addressed to us. We heard the four cases together and reserved judgment in each case. I propose to comment on the Report on domestic violence, (the Report), and the expert psychiatric evidence, (the psychiatric report), presented to us before turning to the facts of each appeal.
The Report
The Report by the Children Act Sub-committee underlined the importance of the question of domestic violence in the context of parental contact to children. Domestic violence takes many forms and should be broadly defined. The perpetrator may be female as well as male. Involvement may be indirect as well as direct. There needs to be greater awareness of the effect of domestic violence on children, both short-term and long-term, as witnesses as well as victims and also the impact on the residential parent. An outstanding concern of the court should be the nature and extent of the risk to the child and to the residential parent and that proper arrangements should be put in place to safeguard the child and the residential parent from risk of further physical or emotional harm. In cases where domestic violence is raised as a reason for refusing or limiting contact, the Report makes it clear that the allegations ought to be addressed by the court at the earliest opportunity and findings of fact made so as to establish the truth or otherwise of those allegations and decide upon the likely effect, if any, those findings could have on the court`s decision on contact. The Report set out suggested guidelines to which I shall refer at the end of this judgment.
The Psychiatric Report
Dr Sturge and Dr Glaser in their joint report to this Court had the opportunity to see the responses to the Sub-Committee Consultation paper and to read the Report and recommendations. Their psychiatric report was read and approved by a number of other consultant child psychiatrists and incorporates the views of a distinguished group of consultants. We are extremely grateful to them for their wise advice.
They set out the psychiatric principles of contact between the child and the non-resident parent. They saw the centrality of the child as all-important and the promotion of his or her mental health the central issue amid the tensions surrounding the adults in dispute. The decisions about contact should be child-centred and related to the specific child in its present circumstances but acknowledge that the child`s needs will alter over different stages of development. The purpose of the proposed contact must be overt and abundantly clear and have the potential for benefiting the child in some way. The benefits of contact to the father were set out in detail including, the importance of the father as one of the two parents, in the child`s sense of identity and value, the role model provided by a father and the male contribution to parenting of children and its relevance to the child`s perception of family life as an adult.
They set out many different purposes of contact, including: the maintenance or reparation of beneficial relationships, the sharing of information and knowledge and the testing of reality for the child. They set out the more limited advantages of indirect contact which included:
experience of continued interest by the absent parent, knowledge and information about the absent parent, keeping open the possibility of development of the relationship and the opportunity for reparation.
They pointed out the importance of the manner in which indirect contact was managed by the resident parent.
They identified a number of risks of direct contact. The overall risk was that of failing to meet and actually undermining the child`s developmental needs or even causing emotional abuses and damage directly through contact or as a consequence of the contact. Specifically that included: escalating the climate of conflict around the child which would undermine the child`s general stability and sense of emotional well being. The result was a tug of loyalty and a sense of responsibility for the conflict in all children except young babies which affected the relationships of the child with both parents. There might be direct abusive experiences, including emotional abuse by denigration of the child or the child`s resident carer. There might be continuation of unhealthy relationships such as dominant or bullying relationships, those created by fear, bribes or emotional blackmail, by undermining the child`s sense of stability and continuity by deliberately or inadvertently setting different moral standards or standards of behaviour, by little interest in the child himself or by unstimulating or uninteresting contact. They indicated a series of situations where there were risks to contact: where there were unresolved situations, where the contact was unreliable and the child frequently let down, where the child was attending contact against his wishes so he felt undermined, where there was little prospect for change such as wholly implacable situations, where there was the stress on the child and resident carer of ongoing proceedings or frequently re-initiated proceedings.
These are all matters with which experienced family judges and magistrates in family proceedings courts are all too familiar. I have, for my part however, found the outline provided by the psychiatric report very helpful.
Domestic Violence Situations
The psychiatric report then moved to the central issue of domestic violence. They agreed with the Sub-Committee Report that there needs to be greater awareness of the effect of domestic violence on children, both short-term and long-term, as witnesses as well as victims. The research was entirely consistent in showing the deleterious effects on children of exposure to domestic violence and that children were affected as much by exposure to violence as to being involved in it. All children were affected by significant and repeated inter-partner violence even if not directly involved. Research indicates that even when children did not continue in violent situations emotional trauma continued to be experienced. The context of the overall situation was highly relevant to decision making. The contribution of psychiatric disorder to situations of domestic violence and emotional abuse must be considered. In situations of contact there might be a continuing sense of fear of the violent parent by the child. The child might have post-traumatic anxieties or symptoms the proximity of the non-resident violent parent might re-arouse or perpetuate. There might be a continuing awareness of the fear the violent parent aroused in the child`s main carer. The psychiatric report highlighted the possible effects of such situations on the child`s own attitudes to violence, to forming parenting relationships and the role of fathers. Research shows that attitudes in boys were particularly affected.
Refusal of child to see parent.
The psychiatric report addressed the problem of the child who was adamant that he did not wish to see the parent. The following factors ought to be accepted
(i) the child must be listened to and taken seriously;
Consideration should be given to the effects on the child of making a decision that appears to disregard their feelings and wishes and when the child...
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