A basic principle of family law is that it is almost always in the interests of a child to have contact with the parent with whom the child is not living. This has been made clear by the courts on many occasions: a prominent recent example being the Court of Appeal’s decision in Re W in 2012. There, Lord Justice McFarlane explained that this principle required that a court must find “cogent reasons” for denying a child contact with their parent. He went on to explain the principle in a little more detail, by quoting Lord Justice Munby in Re C (A Child) (Suspension of Contact):
a) Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
b) Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.
c) There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
A good example of a case in which there were exceptional circumstances which warranted denying a father direct contact with his children cropped up last week: Re P-K (Children).
To find out what those exceptional circumstances were we must look at the facts in Re P-K. The parents were both from Punjabi families and they married by arrangement in 2003. There are two children of the marriage, now aged eight and six. The parties separated on the 30th of March 2011 when, with the assistance of the police, the mother left the family home together with the children.
The mother obtained a residence order in her favour in September 2011, but it was not until May 2012 that the father applied for contact. That application was eventually heard in January this year, when the judge dismissed the father’s application for direct contact with his children but directed that there should be indirect contact. This would be facilitated by a third party and the Judge ordered the mother to provide the father a redacted school report and a photograph of the children each year. The father appealed against the dismissal of his application for direct contact.
The father’s appeal went to the Court of Appeal, where Lady Justice King gave the leading judgment. She explained the reasons behind the original Judge’s decision, which were based upon findings he had made in a fact-finding hearing in October 2012. In that judgment he set out the details of a so-called “honour killing” that had taken place within the family of the mother in 1984, when the mother’s cousin had left her husband, having been the victim of domestic violence:
“When the police took the cousin back to the matrimonial home to collect some personal belongings, she was stabbed to death by her husband in front of the police. It was said that she had brought shame upon the family by her actions in leaving her husband. The judge found that not only did this piece of tragic family history put the mother in genuine fear that she would suffer a similar fate, but also that the husband knew of the murder and used it as a means of controlling his wife.”
The findings made by the judge covered a period of three years and painted:
“…a picture not only of the mother being denigrated and humiliated by the father and the paternal grandmother, but also of incidents of physical and sexual abuse by the father upon the mother. The most serious of the findings made by the judge was that the father not only taunted the mother with the death of her cousin, but that he had also threatened to kill her.”
As mentioned above, the mother was only able to leave the matrimonial home when the police intervened, after being alerted to her plight.
The judge dismissed the father’s application for direct contact, primarily because he found that there was a serious risk of harm to the mother if her whereabouts became known to the father, and in view of their young ages there was a risk that if there was any direct contact the children would ‘leak’ information as to their whereabouts.
Lady Justice King agreed. She said that the combination of the findings made in October 2012 and the risk assessment by the Cafcass officer including, as it did, the father’s lack of understanding about domestic violence and vehement denial of the judge’s findings “led inexorably to the conclusion reached by the judge that the welfare of the children demanded that they should have only indirect contact with their father notwithstanding the exceptional nature of such an order.” Accordingly, she dismissed the father’s appeal.