Should A Child Be Allowed Contact With An Abusive Parent?

Should A Child Be Allowed Contact With An Abusive Parent?

Re M (Children: Contact in Prison) [2024] EWCA Civ 1104

In the recent case of In Re M (Children: Contact in Prison), the Court of Appeal allowed the mother's appeal against an order that let her children to have direct contact with their father who was currently in prison for raping her. This case highlights the delicate balance of ensuring children have contact with both parents and the need to keep them and other family members safe from an abuser.

The facts of the case

The mother (M) appealed against a Child Arrangement Order, which permitted her two children, aged 10 and 12, limited contact with their father (F) who was serving a prison sentence.

M and F were married but had separated, with M and the children leaving the family home. F began a relationship with another woman (P). However, M and the children had returned to live with F for a period during which M alleged that F had raped her twice. In April 2024, F was convicted of rape and sentenced to 12 years' imprisonment. He did not accept his conviction and had said that he would be appealing it.

During Family Court proceedings, F asked for twice-weekly phone and video contact with the children and to see them in person once a month. He also requested that the children have contact with P and her family.

M argued that contact should be in writing only, and the Children's Guardian supported this.

The Children's Guardian did not support unsupervised contact with F or P and considered that even twice-weekly telephone contact would adversely impact the children's lives, not to mention the impact on M, who would feel F still controlled her.

The Family Court Judge required M to make the children available to spend time with F for a one-off two-hour prison visit facilitated and supported by the Children's Guardian, four-hour prison visits three times a year, accompanied by P, and monthly 30-minute telephone contact.

M appealed the decision. She argued that the Judge had:

a) failed to properly consider the Guardian's recommendation,

b) the impact on the children of seeing F in prison, and

c) the risks they would be exposed to in visiting a sex offenders' prison.

She further contended that telephone contact could not be supervised and that no account had been taken of Practice Direction 12J, which obliged the Court to consider the harm caused to a victim of domestic abuse.

The Court's decision

In allowing the appeal, the Court stated that there were four relevant welfare checklist elements regarding the children the Judge must consider:

• The children's ascertainable wishes and feelings, considered in the light of their age and understanding.

• Their emotional needs and any potential emotional harm.

• The capability of each parent, and any other relevant person, of meeting the children's needs.

In addition, Practice Direction 12J paragraph 36 required the Court to apply the elements of the welfare checklist to be considered in line with the domestic abuse experienced and, if applicable, an expert risk assessment.

The Courts need to consider any harm the parent who has primary care of the children has suffered as a consequence of the domestic abuse. A risk assessment on the risk of future harm should a Contact Order be made must also be completed. The conduct of the parents toward one another also needed to be evaluated.

A Contact Order 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 was living could, as far as possible, be secured before, during and after contact and that the parent with whom the child was living would not be subjected to further domestic abuse by the other parent.

The Court of Appeal ruled that although this was a complex case, the Family Court Judge had failed to consider several critical factors, including:

• The fact that F had been convicted of domestic abuse of a most harmful kind.

• The impact of the rapes and of the order on M, as required by Practice Direction 12J.

• The significance of F's unrepentant attitude post-conviction as a measure of his ability, and that of P, to meet the children's needs.

• The weight properly due to the children's wishes in the light of their limited understanding of the family situation and their apparently settled state.

• The balance between their need for contact with F and their need for continuity of secure care by M.

• The potential for unsupervised contact to unsettle the children and harm their relationship with M by exposing them to conflicting narratives.

• The appropriateness of P being the contact facilitator.

• The practicality of telephone contact being supervised.

• The justification within the evidence for rejecting the Children's Guardian's expert assessment

Comment

The Court of Appeal concluded that too much weight had been given to the children's wishes. Evidence showed that they had little understanding of the gravity of F's crimes and the impact the rape had had on M. In addition, the Family Court Judge gave priority to their own perception of the children's need for contact with F.

It is well recognised that children who have good quality relationships with both parents post-divorce have better overall outcomes in terms of academic achievement and mental health. Therefore, the Family Court are typically at pains to preserve contact, even in circumstances where a parent is in prison or is dealing with difficulties in their life, such as addiction. However, this case illustrates that this ideology can only go so far. In cases where one parent has suffered severe abuse at the hands of the other parent, parental contact, especially in cases involving younger children who require supervision, may be wholly inappropriate. The decision also highlights the need for a complete evaluation of the welfare checklist supplemented by Practice Direction 12J in domestic abuse cases so that adequate weight can be given to a child's wishes whilst balancing the risk of harm to them and any other family members.

If you have any questions regarding this article, please call us on 0300 3732424.