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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> C v D [2000] JRC 185A (19 September 2000) URL: https://www.bailii.org/je/cases/UR/2000/2000_185A.html Cite as: [2000] JRC 185A |
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2000/185A
13 pages
ROYAL COURT
19th September, 2000
Before: P.R. Le Cras,
Esq.,
Commissioner,
and
Jurats Rumfitt and Tibbo
Between: C.
Plaintiff
Application by a
natural father
for
access to his son, now aged nearly 6. The parties had had a relationship lasting
from
1991-1995. There
was
a history of
violence, resulting in the
father
having three
convictions
therefor, being
twice sent to Prison. The mother
was
found
by the
Court
to be suffering
from
post traumatic stress
disorder.
The child's
interests are paramount, and in general access should be ordered unless there
are strong reasons
why
it should not.
Here,
were
access,
whether
supervised or unsupervised, presently to be
ordered the post traumatic stress
disorder
of the mother
following
on
from
the
assaults
would
on the evidence upset the stability of the
family.
The Court
therefore ordered that there should be no
direct
access
whether
supervised or
unsupervised until
further
order.
Indirect
contact
however
was
ordered,
with
liberty to the parties to
apply on a substantial
change
of
circumstances.
Advocate
N.J. Chapman
for
the Plaintiff.
Advocate
D.J.
Benest
for
the
Defendant.
JUDGMENT
THE COMMISSIONER:
1.
This is an
application by 'C'
now aged 36,
for
access to his son 'M', now aged nearly 6.
2.
M is the
offspring of a relationship which
began in 1991
when
C
began to
cohabit
with
M's mother '
D'
who
already had two
daughters
born in 1986 and 1988, by a
previous relationship. The parties never
married.
3.
It is
clear
from
the Plaintiff's account, and the admissions he made in evidence,
that the relationship
was
a stormy one.
As
described
by the Plaintiff, they both had mood swings; they
would
argue. In
cross-examination
the
Plaintiff put it in this
way,
that they had got into arguments, that she
attacked him and he struck her. He
denied
drinking
heavily though he admitted to
four
to
five
pints and put it in
this
way,
that they
would
drink
together and
would
argue together.
4.
At all
events C
agreed that he had hit
D
three times and although he
was
not sure of
the
dates,
had been once put on probation and twice sent to prison. The
first
of these assaults took place in
1992,
well
before
D
became pregnant
with
M and
following
this, on 16th
September, 1992, she obtained an interim ouster and non-molestation injunction.
5.
C's
version of
what
follows
is that they then
carried
on much as before. He left the premises but they
would
see each
other as
D
would
come
to his place at Mont Millais, quite regularly, at
weekends
and after her
daughters
were
dropped
at school, and that he
would
visit her,
again at
weekends,
or in the evenings.
The periods they spent together
were,
he said, quite short.
When
D
had
changes
of address she
would
throw
him out.
6.
At all
events, there was
a
further
conviction
in May 1993,
when,
despite
the
injunction,
C
returned home,
found
two people in his bed and a made-up bed
for
him. He hit her, and
was
sent to prison
for
six
weeks.
7.
Despite
this the relationship
continued,
and early in 1994
D
became pregnant.
Whilst
pregnant there
was
yet another
incident
when
C
smashed a glass table in the kitchen of their
flat.
8.
After M
was
born, in the Autumn of 1994, the Plaintiff states that he
was
in regular
contact
with
M, handled him as much as he
could,
and indeed took him to the
clinic
on occasion. Previously,
whilst
D
was
at Highlands and prior to
falling
pregnant, he stated that he had looked
after her
daughters,
taking them to school and preparing their tea.
9.
In answer
to an allegation that he had hit D
when
she
was
holding M, the Plaintiff
absolutely
denied
this, as he
denied
hitting
D
in the presence of her
daughters.
10.
The
relationship ended in 1995, since when
the Plaintiff has had no access to his
son. The Plaintiff
claims
that he left
the relationship because
D
would
take him back one minute and then throw him
out again.
11.
He was
still, early in 1996, here, able to go, he
claimed,
to the hospital
when
M had
grommets
fitted,
but seems shortly afterwards to have left the Island
for
a
couple
of years, before
deciding
to return here and
consult
lawyers
with
a view
to obtaining access.
12.
He agreed
that it was
not appropriate to have hit
D,
and he now regrets it. He
denies
having struck her or attacked her
since his return and
claims
that his violent behaviour in the past should give
D
no
cause
to be
frightened
of him now.
13.
It appears
that he has never maintained M. On being
questioned about this, C
maintained that he had maintained M
while
he
was
with
D.
He had given none since, stating that
he had no
contact
with
M, that if he
did
he
was
not sure M
would
get it that
D
had made it
clear
that he
was
never going to see his son and that money
was
never
discussed.
He
would
though
contemplate
maintenance if he saw M, and
would
send money
when
"all this"
was
sorted out. He had, he said, sent
Christmas
presents via
his sister,
who
had, he said, told him that
D
was
not interested in that.
14.
Last, he
was
now getting some
form
of
further
education, and although it
was
clear
to
the
Court
that he had some reading ability, he stated that he
was
not yet able
to
write.
15.
D,
in her
evidence, stated that the relationship started in 1991 and ended
finally
in
1995.
16.
She
confirmed
that there had indeed been assaults leading on one occasion to
stitches and on another to a black eye.
As
for
the incident of the table her statement
was
that he had picked up
the glass top and thrown it towards her.
17.
There was,
she said, no pattern to the violence: a lot of the time he
would
be pushing her
around; it
would
happen every
few
weeks
and then there
would
be a break. As to his attitude to alcohol, every
Friday
night his mother
would
leave him some money and he
would
drink
to excess, not
only beer but spirits as
well
and on his return home he
would
target her and
take it out of her. He
was,
she said, a
nasty piece of
work.
Her method of
dealing
with
this
was
to be asleep
when
he returned, but this
did
not often
work.
She
was,
she said, terrified of
him. She
felt
safe in
Court
because
there
were
people around.
18.
She flatly
contradicted
C's
evidence that he had looked after her
daughters,
claiming
that
she had employed a
childminder.
19.
In
cross-examination
she
claimed
that the relationship
was
normal
when
it started,
but that once he had moved in he became manipulative, and the relationship had
gone
wrong
when
he assaulted her at her sister's in 1992,
following
which
he
was
imprisoned
for
six
weeks.
20.
She had
obtained an injunction against him in September, 1992, and had had C
removed
from
157 Le Marais. Nonetheless, after
an interval he returned, and
despite
her objections to him, he moved in again
and intercourse
clearly
resumed, leading in
due
course
to the birth of M in
September, 1994.
21.
She
claimed
that he
forced
his
way
back, and had stayed
close
to her until she
felt
it
was
too late to
call
for
help to enforce the injunction. She
was,
she said,
continually
harassed and
scared. If he hit her, he
would
remain
close
to her until the bruising
disappeared
and she
felt
it
was
too late to
complain.
22.
During
her
evidence she became
distressed
on several occasions and the
Court
formed
the
view that she
was
indeed genuinely
distressed
and anxious
when
in proximity to
C,
who
had been
willing
and able to use his strength to hurt and
frighten
her
during
their relationship.
23.
So far
as M
is
concerned,
she stated that he is not an average
child.
He is very bright, is hyperactive, possibly
dyslexic
and has hearing problems
which
have
caused
him
frustration.
Although
with
grommets his hearing has
improved, she still has to speak very
clearly
and he
can
only
cope
with
one
person talking at a time.
24.
She felt
that access at present
would
undo the
work
done
to
date.
At the moment, he has no knowledge of, and
has made no enquiry about, his
father.
Were
there to be access, she
would,
she
felt,
just
fall
apart and she
and all three of her
children
would
suffer.
25.
In
cross-examination
she agreed that at some point she
would
clearly
have to speak
to M about his
father,
although she
could
not say how she
would
manage this
until the situation arises.
26.
Her view
was
that
C
had never supported M and
was
doing
this as part of a vendetta
against her. At present she
could
see no
benefit on a trial basis
for
supervised access.
If it
did
not
work
she reiterated her
fear
as to the effect it
would
have on her and on M and on her relationship
with
M. M is
difficult
and she
feared
a
clash
of
personality
with
his
father,
who
she
felt
might abuse him verbally, although to
start
with
C
would
be on his best behaviour.
27.
The time,
she conceded,
will
come,
but it is emphatically not at present.
When
M starts to ask, she
would
prepare him,
but at the moment her view, most emphatically, is that any
form
of access
will
not in any
way
benefit M.
28.
In
addition to the parents, the Court
had the benefit of evidence
from
a series of
experts to
whom
the
Court
is most grateful.
The Plaintiff had
called
two experts, neither of
whom
had seen
D
or M.
29.
The first
was
Dr
Sharkey, M.B., B.
Ch.,
D.M.H.,
M.R.
C.Psych.
Dr
Sharkey
clearly
took trouble
with
his
report on
C
and
went
carefully
into a rather
difficult
background.
C's
desire
for
access
was,
he
felt,
very
strong. His report
was
focused
on
C
and
as he very properly
conceded
it
would
be arrogant
for
him to give any view on
D
or M. As to access, he thought that
C's
desire
for
access and recourse to the
Courts
for
access merited some sort of
trial on an empirical basis to see if he
could
behave himself. It
was
though, he
conceded,
a grey area and
one
would
have to hedge a
decision
and obtain a balance. He
was,
though, quite
clear
that he
could
see
no psychiatric reason
why
C
should not have access to his son.
30.
He was
followed
by Mr. J.P. Hollywood, B.A., M.Sc.,
C.Psychol.,
A.B.Ps.S. He had met
C
on a number of occasions. He stated that
C
was
a somewhat bohemian
figure,
suspicious of authority, but
despite
having heard of the mother's
problems, nonetheless thought that M should have the benefit of access,
which
especially at
first
should be strictly
controlled.
He
did,
however, state that if
D
were
very
distressed
by this, it
would
be impossible
for
her not to
communicate
this
anxiety to her
child;
and if her mental state
were
to
deteriorate,
this
would
have an impact on M. In general though,
and especially
with
boys,
children
do
benefit
from
contact
with
their
father,
as otherwise one is likely to
face
all sorts of
difficulties
when
they become
adolescents. If
contact
were
established, it
would
help M to have a
father
to talk about, provided, of
course,
that the
father
persevered.
31.
He
conceded
that if he
were
wrong,
it
could
be
disastrous,
but emphasised that, in
his view, as M grows up he
will
become
curious.
It is usual, and
can
become overwhelming: someone he
was
sure
would
tell
him
who
his
father
was
e.g. at school.
32.
The
defence
called
three
witnesses.
The
first
was
Mr. B.R. Bowen, B.A.(Hons);
C.O.S.W;
Dip.S.W;
U.K.
C.P.
Registered
Therapist, a
family
therapist to
whom
D
and her
family
had been referred by
Dr.
Glaun.
33.
He had
first
seen all her
family,
but had then excluded M
who
was
not
distressed
and
continued
with
D
and her
daughters
who,
he stated,
were
very
distressed.
He had seen
D
five
times up to May, 2000, and
once since (on another matter). He
felt
that this
distress
was
genuine and that
D
was
showing symptoms of post
traumatic stress
disorder
i.e. heightened alertness, poor appetite and
flashbacks,
so he had referred her to a
clinical
psychologist.
34.
He could
not, very properly, give a view on the result of
contact
between M and his
father,
but affirmed in
cross-examination
that there
would
be a high level of
stress to
D
and her
daughters
if access
were
granted. If there
were
supervised access then, at a
guess, there
would
be reduced anxiety, but anxiety nonetheless. He added that there
was
no
correlation
between the
degree
of trauma and the reaction to it.
35.
He was
followed
by Miss S. Reeves, B.A; M.A;
Dip.Clin.Psych.,
a
Chartered
Clinical
Psychologist,
who
confirmed
the
diagnosis
of post traumatic stress
disorder.
She, too, thought
D's
fear
and
anxiety
were
genuine; she had seen her startled by sounds. She had seen her six or eight times since
April. If access
were
granted and it
went
well
for
some months her symptoms might improve. However, any increase in anxiety
would
have
as a side effect increased irritability; it is, she said, very
difficult
to be
patient
with
children
whilst
worrying
about something else.
36.
To
overcome her symptoms D
needed a stable environment. Access
would
probably
cause
them to increase
rather than subside; and if M
were
distressed
this
would
ultimately
fuel
D's
anxieties. Even if not realistic
D's
fears
are very strong and based on past experience.
37.
To grant
access would
be to take a
chance
with
D's
health
which
might get better or
worse;
though she
could
not see
D
overcoming her symptoms
completely
if
C
became part of her life. If no access
were
granted her anxieties
would
subside over time, but
would
be rekindled by
future
access.
38.
As to
whether
access
would
be good
for
M she
could
not say, as she had never met him.
39.
Last, the
Court
heard Mr
Castledine,
a
Child
Care
Officer of very
considerable
experience,
who
had met not only
D
and her
children
but also
C.
40.
When
he
interviewed M he
found
an active, or rather hyperactive
child
who
knew he had a
father
but had no knowledge of him; a boy
who
had a good strong relationship
with
his mother and sisters, and
who,
he understood, got on
well
at school.
41.
With
both
D
and her
daughters
there
was
a
fear
factor.
He believed that access
would
upset the stability of the
whole
family.
At the moment he
did
not believe
that
direct
access of any sort,
whether
supervised or not,
was
the best
course
of action. He
felt
though that the
interest of
C
in his son
was
genuine, and he
certainly
took his application
seriously.
42.
Mr
Castledine
had told
C
of his view,
which
had
disappointed
him
deeply,
but
when
he had
done
so he (Mr
Castledine)
had offered to keep him in touch, as M
would
need information regarding his
father
when
he grew up. In his view, the ideal
course
is that
information should be provided
for
M and that this should not
come
from
his
mother alone.
43.
In his
view it was
first
for
D
to answer M's questions and he
was
prepared to keep in
touch
with
D
and pass on information; and equally to
do
the same
for
C,
e.g.
school reports, so that he
would
be a buffer and a repository. He
would
keep the information until after
discussion
with
D,
he
felt
it right to release it. He added that in years to
come,
if M
were
denied
information, he might resent this.
44.
Counsel
then referred the
Court
to the law:
45.
Mr.
Chapman
first
referred the
Court
to Rayden & Jackson:
Divorce
and
Family
Matters (17th Ed'n): s.4: 40.42 (pp.1425-30):
"Principles determining
contact:
parental
contact.
The court
is generally slow to
deprive
a parent of all
contact
with
his or her
child.
It has been said that
access should be regarded as a basic right of the
child
rather than a basic
right of the parent and, save in exceptional
circumstances,
to
deprive
a
child
of
contact
with
a parent is to
deprive
a
child
of an important
contribution
to
his emotional and material growing up in the long term.
An exposition of the principles governing contact
is to be
found
in
Re O (a minor) (
contact:
imposition of
conditions),
which
can
be summarised
thus:
(1) Overriding
all else, the welfare
of the
child
is the paramount
consideration;
the
court
is
concerned
with
the interests of the mother and
father
only so
far
as they bear
on the
welfare
of the
child.
(2) It is
almost always in the interests of a child
whose
parents are separated that he
or she should have
contact
with
the parent
with
whom
he is not living.
(3) The court
has power to enforce orders
for
contact,
which
it should not hesitate to
exercise
where
it judges that it
will
overall promote the
welfare
of the
child
to
do
so.
(4) Cases
do,
unhappily and infrequently but occasionally, arise in
which
a
court
is
compelled
to
conclude
that in existing
circumstances
an order
for
immediate
direct
contact
should not be ordered, because so to order
would
injure the
welfare
of the
child.
(5) In cases
in
which,
for
whatever
reason,
direct
contact
cannot
be ordered, it is
ordinarily highly
desirable
that there should be indirect
contact
so that the
child
grows up knowing of the love and interest of the absent parent
with
whom,
in
due
course,
direct
contact
should be established.
(6) The
residential parent has obligations, in particular not to obstruct indirect
contact.
The same principles apply where
the application is to resume
contact
after a break in
contact.
Much may depend
upon the nature and extent of the bond between the
child
and his parent. This is a
factor
which
has been highlighted in respect of
children
born by an artificial method
and in respect of
contact
with
step-parents.
There is no principle that there should be no contact
in
cases
of
serious sexual abuse and each
case
must be
decided
on its own particular
facts."
46.
He further
cited
the headnote in M -v- M [1973] 2 All ER 81:
"Held - (i) No court
should
deprive
a
child
of access to either
parent unless it
was
wholly
satisfied that it
was
in the interests of that
child
that access should
cease,
and that
was
a
conclusion
at
which
the
court
should be extremely slow to arrive.
Access
was
to be regarded as a basic right of the
child
rather than a
basic right of the parent. Save in
exceptional
circumstances
to
deprive
a parent of access
was
to
deprive
a
child
of an important
contribution
to his emotional and material growing up in the
long term. There
was
no
distinction
to
be
drawn
between a natural parent and an adoptive one.
(ii) Since the justices had clearly
placed before
themselves the rule that the
welfare
of the
child
was
the paramount
consideration,
on the material before them they
were
fully
entitled to
conclude
that the
welfare
of the
child
would
not be promoted by the
continuation
of
access and
would
be promoted by its
cessation.
The appeal
would
therefore be
dismissed."
47.
And the
remarks of Latey, J at p.88 f-i:
"...where
the parents have separated and one has the
care
of the
child,
access by the other often results in some upset in the
child.
Those upsets are usually minor and superficial. They are heavily outweighed by the long term
advantages to the
child
of keeping in touch
with
the parent
concerned
so that
they
do
not become strangers, so that the
child
later in life
does
not resent
the
deprivation
and turn against the parent
who
the
child
thinks, rightly or
wrongly,
has
deprived
him, and so that the
deprived
parent loses interest in
the
child
and therefore
does
not make the material and emotional
contribution
to the
child's
development
which
that parent by its
companionship
and otherwise
would
make.
So viewed the cases
which
speak of the basic right to access of the
non-
custodian
parent are to my mind, as
Wrangham
J has said, reconcilable and
make sense. I
do
not believe that in
modern times they
were
meant to
convey
any other meaning. They mean and are meant to mean not that a
parent has any proprietorial right to access but that save in exceptional
circumstances
to
deprive
a parent of access is to
deprive
a
child
of an
important
contribution
to his emotional and material growing up in the long
term."
48.
In his
submission Mr. Chapman
said there
were
no
cogent
reasons
for
the refusal of
access.
Domestic
violence
was,
of
itself, no bar and it
was
perfectly possible to reach a
compromise
position of
indirect
followed
by
direct
access.
49.
In reply
Advocate Benest submitted that cases
unhappily arose
where
contact
should not
be ordered.
50.
He
referred the Court
to the recent
case
of Re L (
Contact:
Domestic
Violence)
(2000) 2
FLR
334 and in particular to the headnote at p.334:
"A court
hearing a
contact
application in
which
allegations of
domestic
violence
were
raised should
consider
the
conduct
of
both parties towards each other and towards the
children,
the effect of the
violence on the
children
and on the residential parent, and the motivation of
the parent seeking
contact.
On an
application
for
interim
contact,
when
the allegations of
domestic
violence had
not yet been adjudicated on, the
court
should give particular
consideration
to
the likely risk of harm to the
child,
whether
physical or emotional, if
contact
were
granted or refused. The
court
should ensure, as
far
as possible, that any risk of harm to the
child
was
minimised and that the safety of the
child
and the residential parent
was
secured
before,
during
and after any such
contact.
Family
judges and magistrates needed to have a heightened awareness of
the existence and
consequences
for
children
of exposure to
domestic
violence
between their parents or other partners.
Where
allegations of
domestic
violence
were
made
which
might have an
effect on the outcome, those allegations must be adjudicated upon, and
found
proved or not proved. There
was
not, and
should not be a presumption that on proof of
domestic
violence the offending
parent had to surmount a prima
facie
barrier of no
contact,
but such violence
was
a
factor
in the
delicate
balancing exercise of
discretion
carried
out by
the judge applying the
welfare
principle and the
welfare
checklist
in s 1(1)
and (3) of the
Children
Act 1989. In
cases
of proved
domestic
violence, the
court
had to
weigh
the seriousness of
the
domestic
violence, the risks involved and the impact on the
child
against
the positive
factors,
if any, of
contact.
The ability of the offending parent to recognise his past
conduct,
to be
aware of the need to
change
and to make genuine efforts to
do
so
would
be
likely to be an important
consideration
when
performing that balancing
exercise."
51.
He then
referred to the passage at 336 and 337, which,
as the
case
is just
decided,
we
cite
at length per
Dame
Elizabeth Butler-Sloss, P:
"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 and 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."
52.
He further
cited
Dr
Sturge and
Dr
Glaser's report at 339
C-H:
"Domestic
violence involves a very serious and significant
failure
in parenting -
failure
to protect the
child's
carer
and
failure
to protect the
child
emotionally (and in some
cases
physically -
which
meets any
definition
of
child
abuse).
Without
the
following
we
would
see the balance of advantage and
disadvantage
as tipping against
contact:
(a) some
(preferably full)
acknowledgement of the violence;
(b) some
acceptance (preferably full
if appropriate, i.e. the sole instigator of
violence) of responsibility
for
that violence;
(c)
full
acceptance of the inappropriateness of the violence particularly in respect of
the
domestic
and parenting
context
and of the likely ill-effects on the
child;
(d)
a genuine
interest in the
child's
welfare
and
full
commitment
to the
child,
i.e. a
wish
for
contact
in
which
he is not making the
conditions;
(e) a wish
to
make reparation to the
child
and
work
towards the
child
recognising the
inappropriateness of the violence and the attitude to and treatment of the
mother and helping the
child
to
develop
appropriate values and attitudes;
(f)
an
expression of regret and the showing of some understanding of the impact of
their behaviour on their ex-partner in the past and
currently;
(g) indications
that the parent seeking contact
can
reliably sustain
contact
in all senses."
They suggested that without
(a)-(
f)
above they
could
not see how the
non-resident parent
could
fully
support the
child
and play a part in undoing
the harm
caused
to the
child
and support the
child's
current
situation and need
to move on and
develop
healthily. There
would
be a significant risk to the
child's
general
well-being
and his emotional
development
([2000]
Fam
Law 615, 624)."
53.
And a
further
passage at 341H-342F
where
Dame
Elizabeth Butler-Sloss, P
went
on to
state:
"In a contact
or other s 8 application,
where
allegations of
domestic
violence are made
which
might have an effect on the outcome, those
allegations must be adjudicated upon and
found
proved or not proved. It
will
be necessary to scrutinise such
allegations
which
may not always be true or may be grossly exaggerated. If, however, there is a
firm
basis
for
finding
that violence has occurred, the psychiatric advice becomes very
important. There is not, however, nor
should there be, any presumption that, on proof of
domestic
violence, the
offending parent has to surmount a prima
facie
barrier of no
contact.
As a matter of principle,
domestic
violence
of itself
cannot
constitute
a bar to
contact.
It is one
factor
in the
difficult
and
delicate
balancing exercise of
discretion.
The
court
deals
with
the
facts
of a specific
case
in
which
the
degree
of violence and the seriousness of
the impact on the
child
and on the resident parent have to be taken into
account. In
cases
of proved
domestic
violence, as in
cases
of other proved harm or risk of harm to the
child,
the
court
has the task of
weighing
in the balance the seriousness of the
domestic
violence, the risks involved and the impact on the
child
against the positive
factors
(if any), of
contact
between the parent
found
to have been violent and
the
child.
In this
context,
the ability
of the offending parent to recognise his past
conduct,
be aware of the need to
change
and make genuine efforts to
do
so,
will
be likely to be an important
consideration.
Wall
J in Re M (
Contact:
Violent Parent) [1999] 2
FLR
321 suggested at 333 that often in
cases
where
domestic
violence had been
found,
too little
weight
had been given to the need
for
the
father
to
change.
He suggested
that the
father
should
demonstrate
that he
was
a
fit
person to exercise
contact
and should show a track record of proper behaviour. Assertions,
without
evidence to back it up,
may
well
not be sufficient.
In expressing these views I recognise the danger
of the pendulum
swinging too
far
against
contact
where
domestic
violence has been proved. It is trite but true to say that no two
child
cases
are exactly the same. The
court
always has the
duty
to apply s 1 of the
Children
Act 1989 that the
welfare
of
the
child
is paramount and, in
considering
that
welfare,
to take into account
all the relevant
circumstances,
including the advice of the medical experts as
far
as it is relevant and proportionate to the
decision
in that
case.
It
will
also be relevant in
due
course
to
take into account the impact of Art 8 of the European
Convention
for
the
Protection of Human Rights and
Fundamental
Freedoms
1950 on a
decision
to
refuse
direct
contact.
The propositions set out above are not, in my view, in any way
inconsistent
with
earlier
decisions
on
contact.
The
fostering
of a relationship between the
child
and the
non-residential parent has always been and remains of great importance. It has equally been intended to be
for
the
benefit of the
child
rather than of the parent.
Over the last 40 years there has been a movement away
from
rights
towards responsibilities of the parents and best interests of the
child."
54.
And last,
on this case,
the question of harassment
dealt
with
at 344 A-
D
which
he
submitted might be a
factor
in this
case,
again per
Dame
Elizabeth
Butler-Sloss, P:
"In conclusion,
on the general issues, a
court
hearing a
contact
application
in
which
allegations of
domestic
violence are raised should
consider
the
conduct
of both parties towards each other and towards the
children,
the effect
on the
children
and on the residential parent and the motivation of the parent
seeking
contact.
Is it a
desire
to
promote the best interests of the
child
or a means to
continue
violence and/or
intimidation or harassment of the other parent?
In
cases
of serious
domestic
violence, the ability of the offending
parent to recognise his or her past
conduct,
to be aware of the need
for
change
and to make genuine efforts to
do
so,
will
be likely to be an important
consideration."
55.
Finally,
Advocate Benest
cited
Re K (
Contact:
Mother's Anxiety) [1999] 2
FLR
703
at 707D-708G (
where
the
facts
are of quite a
different
order) per
Wall,
J:
"The question of injury to the welfare
of the
child
is best
summarised by an extract
from
the judgment of
Waite
LJ in a
case
called
Re
D
(A
Minor) (
Contact:
Mother's Hostility) [1993] 2
FLR
1,
where
at 7G the Lord
Justice said this:
'It is now well
settled that the implacable hostility of a mother
towards access or
contact
is a
factor
which
is
capable,
according to the
circumstances
of each particular
case,
of supplying a
cogent
reason
for
departing
from
the general principle that a
child
should grow up in the
knowledge of both his parents. I see no
reason to think that the judge
fell
into any error of principle in
deciding,
as
he
clearly
did
on the plain interpretation of his judgment, that the mother's
present attitude towards
contact
puts
D
at serious risk of major emotional harm
if she
were
to be
compelled
to accept a
degree
of
contact
to the natural
father
against her
will'.
Citing
that passage
with
approval in Re O, Sir Thomas Bingham MR
drew
attention to the judge's reference to a 'serious risk of major emotional
harm', and
went
on to say that the
court
should not at all readily accept that
the
child's
welfare
would
be injured by
direct
contact.
Judging that question, he said, the
court
should take a medium-term and long-term view of the
child's
development
and not
accord excessive
weight
to
what
appears likely to be short-term or transient
problems. Neither parent, he said,
should be encouraged or permitted to think that the more intransigent, the more
unreasonable, the more obdurate and the more uncooperative they are the more
likely they are to get their own
way."
56.
The law we
are to apply is thus quite
clear.
M's
interests are paramount and unless there are very strong reasons
why
access
should not be ordered, such an order should be made.
57.
One such
reason at least is where
the mother is so traumatised that such an order
would
upset the stability of the
family.
In Re
K the actions of the
father
were
clearly
disgraceful,
and although
C's
behaviour is nothing like so bad,
we
bear in mind that there are a number of
admitted assaults and that the level of stress and anxiety attested to by
D
and
the
witnesses
who
have seen her is genuine and that any order
for
access
would
greatly harm the
family
unit and all its members, not least M.
We
accept this and in our view the evidence
is all one
way.
58.
The Court
therefore
finds
that there should be no
direct
access
whether
supervised or
unsupervised until
further
order.
59.
We
wish
to
add, though, that indirect
contact
is not only
desirable
but essential. It is most important that Mr
Castledine's
services are employed by both the parents and that M should grow up in the
knowledge of
who
his
father
is; and it is
further
important,
for
M's sake, that
his
father
should be kept informed of
what
is happening to his son. On this point although, per Mr
Castledine,
it
is
first
for
D
to answer M's questions, he
was
clear
that information should
not only
come
from
D.
60.
The Court
agrees
with
that view and it is
further
our view that
D
should enlist Mr
Castledine's
help in
dealing
with
the questions as and
when
they arise.
61.
It is
further
the
Court's
view that the problem of
dealing
with
such questions as
will
be raised by M are better
dealt
with
sooner rather than later, and
particularly before they are raised as a result of remarks e.g. at school.
62.
It is
difficult,
of
course,
for
anyone to put a timescale on this, and in order that
this should not be allowed to lapse, the
Court
orders that Mr
Castledine
should
report to the
Court
in six months and thereafter every six months until
further
order.
63.
Last,
there will
be liberty to either party to apply
whenever
there is a substantial
change
of
circumstances.
Authorities
Rayden & Jackson on Divorce
and
Family
Matters (17th
Ed'n): s.4 (pp. 1425-1430).
M -v- M [1973] 2 All ER 81.
Re H (Minors) (Access) [1992] 1 FLR
148.
Re L (Contact:
Domestic
Violence) (2000) 2
FLR
334.
Re K (Contact:
Mother's Anxiety) [1999] 2
FLR
703.
Re D
(
Contact:
Reasons
for
Refusal) [1997] 2
FLR
49.
Re O (Contact:
Imposition of
Conditions)
[1995] 2
FLR
125.