It is worth bearing in mind that the situations when the family court will consider that there should be no contact between a child and their parent are few and far between. The position of the court is that it will usually be in a child’s best interests to continue having a direct relationship with each of their parents post separation.
The court recognises that the circumstances need to be exceptional before it will deem it in a child’s best interests that they should have no contact with a parent. The court would need to establish that contact would be harmful, perhaps emotionally or psychologically, and it would have regard to the psychological impact upon the child’s primary carer that might also justify such an order being made. There clearly are some scenarios when it isn’t right that contact takes place – or more likely isn’t safe or would be damaging to a child – but there is a high bar to pass before the court sanctions such a significant order being made. Orders denying contact between a parent and child are not made lightly.
What is the Court’s Approach to Parental Contact?
The court recognises the importance of maintaining a relationship between a child and each parent. There is established in Section 1 of the Children Act 1989 a presumption of parental involvement – that involvement of both parents in a child’s life will further the child’s welfare. This is caveated in that this is the position unless the contrary is shown; a distinction that is expanded upon below and has been the source of recent contention leading to the potential for amendments to follow, with many commentators expressing concerns about the application of the current approach in circumstances where there are risks and abuse. Indeed the Ministry of Justice’s report on parental involvement has led the government to recommend that legislative amendment is required to have greater investigation of parental conduct, with fears that the current system might perpetuate abuse by encouraging contact without more stringent analysis of this – the full report can be read here. It should be noted that there is no date yet confirmed for if and when legislation will be confirmed.
The court’s paramount consideration when faced with disputes in relation to the arrangements for children is the child’s welfare. The court will look to what is in the child’s best interests and not those of either parent. The court adopts a no order principle, so it will only make an order if doing so is considered to be better than no order at all. The court is also concerned to minimise delay in resolving such a dispute, as it is considered that delay is prejudicial to the welfare of a child.
The court has regard to the welfare checklist when making decisions, which can be found in Section 1(3) CA 1989. This contains a list of factors including requiring the court to have particular regard to the ascertainable wishes and feelings of the child in light of his age and understanding; it also requires the court to consider the physical, emotional and educational needs and any harm that the child is suffering or at risk of suffering.
In what Circumstances Might the Court Deny Direct or Indirect Contact?
Direct contact is spending face to face time with a child which can be supervised or unsupervised and can include overnight stays. Indirect contact is communicating while not being physically present – for example by FaceTime, telephone, letters or the sending of cards and gifts.
The cases that involve a court denying both direct and indirect contact are very uncommon. They are rare in that the court sets a high bar before it determines that involvement of each parent will not further the child’s welfare. The court has to weigh up the risk of harm to children and victims of domestic abuse against the right of the child to having a relationship with both parents – this often creates significant tension. There might be very extreme circumstances where a parent had committed murder, or has been convicted for sexual abuse or when there are serious and significant episodes of abuse towards the other parent, when the court might conclude that it would not be in a child’s best interests for contact to be ordered. There may be safety issues as a result of domestic abuse impacting not only on the child but also the resident parent, that might lead a court to consider whether ongoing contact was safe, or a situation where there had been prolonged absence of contact with the non-resident parent and re-introducing contact against a mature child’s wishes might cause significant psychological harm – again, the circumstances have to be quite extreme for the court to consider that no contact at all is right for the child.
How do allegations of harm, neglect, abuse, or coercive control factor into the decision? The court must have regard to Practice Direction 12J if there are allegations of harm, neglect, abusee or coercive control made. Practice Direction 12J sets out what the Court is required to do in any case where such allegations are made. This can have the effect of causing the court to consider the need for a separate finding of fact hearing to determine the truth of the background – sometimes termed the “factual matrix” before it goes on to decide what the arrangements for the child should be. The court can suspend contact arrangements or decide not to make any order for contact until this has happened, and CAFCASS, the Children and Family Court Advisory and Support Service, which assists the court with making recommendations in child arrangement disputes, will often make such a recommendation to safeguard a child in the meantime.
What Evidence Does the Court Rely on When Assessing Risk?
Evidencing risk in child arrangements cases can vary significantly. With modern technology advances there has been an increase, and will no doubt continue to be, of parties seeking to admit recordings of a child or another party, or a professional, to try to support their case. These recordings are not always with the consent of those involved, and can necessitate separate applications to court for permission to be adduced in accordance with current covert recordings judicial guidance. There might be evidence of a criminal conviction, or there might need to be statements filed and oral evidence tested to satisfy the court of alleged abuse. The family courts use the civil standard of proof, deciding whether ‘on the balance of probabilities’ an alleged fact happened and the burden of proof is on the person making an allegation. There can sometimes be social work or CAFCASS reports filed that might make recommendations or contain analysis of risk, or there can be specialist psychological risk assessments and evaluations, that can be used to persuade a court as to risk. The views of CAFCASS can be very persuasive to the court and the court would need good reason to depart from those recommendations. Similarly, expert opinion can be persuasive, but ultimately the court would be the arbiter for what contact should be ordered.
Parental alienation is a concept which is becoming more and more prominent before the family court. In cases where this is alleged there is clear judicial guidance that this requires a judicial finding rather than a psychological evaluation. Domestic abuse can take many forms and there could be medical evidence provided, photographic evidence or documentary evidence used in support of allegations in addition to the written and oral evidence of a party.
A child’s wishes and feelings are taken into consideration when considering what contact should take place but this is just one of the factors within the welfare checklist and there is no magic age when a child’s views become determinative. In fact, the court can override a child’s wishes and feelings if it feels that these do not accord with the child’s best interests.
What Alternatives Might the Court Consider Before Denying Contact?
It is possible that within court proceedings a parent can be recommended by the court to complete work to reduce risk, or to alleviate concerns that might be relevant to contact taking place. This could be in the form of domestic abuse courses, perpetrator programmes or similar, or engagement with agencies to improve parenting capacity and ability to meet a child’s needs. There is also often the use of supervised contact centres, the involvement of independent social workers or other therapeutic interventions recommended. It can be considered necessary by the court to impose supervised or supported contact to help rehabilitate a relationship between the child and non-resident parent and provide the safety and reassurances that might be required. The court will commonly consider long term supervised contact abusive in itself to a child, and so supervision and support is almost always considered to be a short term measure and a stepping stone only.
There may be circumstances that render these methods unsuitable to a court – those cases are rare however as the court will want to look to exhaust all avenues to try to promote the relationship between a child and parent if it can be safe to do so. Where there has been sexual abuse or extreme domestic abuse, and the need for psychological expert evaluation, the court might deem that it would not be in the child’s best interests to have contact, but this is certainly the exception rather than the rule.
How Does the Court Balance the Risk of Harm With the Child’s Right to a Relationship?
The court has to consider the child’s overall welfare as its paramount consideration and in doing so and as above, it has particular regard to the factors within the welfare checklist. The current statute emphasises the parental involvement presumption which is now under the microscope. This presumption effectively refers to the child’s right to a relationship. The court has regard to the Human Rights Act 1998 and the competing rights within that statute also but its overarching consideration will be what is ultimately in the child’s best interests. The court will always endeavour to reach a decision that is consistent with improving a child’s welfare. The family court exercises a great deal of discretion and makes decisions based upon the individual circumstances of a case, and there can often be a tension between the risk of harm and the child’s need and right to have a relationship with each parent.
Lawyers and judges will often consider relevant and recent case law (previous cases which have been reported due to their significance) to understand the likely approach a court will take, depending on the facts of a case. There will always be similarities between the facts of cases and facts which set them apart. The September 2024 judgment in the case of TM v TF [2024] EWHC 2786 (Fam) (12 September 2024) included circumstances where there had been exceptionally abusive behaviour and threats by one parent against the other and the court maintained that contact should still take place – this is an example of how even in cases of domestic abuse where findings are made, the court can consider it to be in the overall best interests of a child to have a continuing relationship with the offending parent. In contrast, the case of Re C (A Child) (No contact) [2024] EWFC 366 (B) involved a matter where a father was convicted of controlling and coercive behaviour including three counts of assault by beating and threats to kill the children’s mother. In this case an order was made not only prohibiting contact but also an order barring further applications by the father and restricting his Parental Responsibility. It demonstrates how the individual facts of a case could point to significant orders being made that might prevent contact taking place.
Is Denial of Contact Permanent, and can it Ever be Reversed?
Child arrangement orders can be varied in the future. The court recognises that children’s needs develop and evolve and what might be considered right at one stage of a child’s life needs to adapt in the future. An application to vary a child arrangements order could be made if it is felt that circumstances warrant this but changes will need to be demonstrated, and alternative dispute resolution methods would also need to be considered. The court has the power to bar repeated applications, however, if it is felt that it is an abuse of process, and the court can effectively implement an additional hurdle of having to provide permission for repeated applications to be made if they are felt to be vexatious. Genuine applications or those with merit might be made when risks have reduced, courses completed or where a child’s wishes have altered and it can be evidenced that contact should be reinstated or arrangements varied. It is worthwhile being proactive if you are the parent not having contact, and completing courses to show improved understanding of risk and abuse, and being able to document having addressed concerns that have been raised previously. This might be domestic abuse understanding work, substance misuse work, or also general parenting capacity improvement and there are various courses and local resources that might be accessed to address this. There are often lengthy waiting lists to complete certain work, which is worthwhile taking into consideration and taking steps sooner rather than later is often sensible.
When Should a Parent Seek Legal Advice About Contact Being Denied?
It is always best to seek advice at an early stage and there is a great deal to be said in the old adage “prevention is better than cure”. Oftentimes it can be really important to take steps to prevent a precedent being set, or a pattern that is then difficult to break, or a relationship deteriorating that then needs to be rehabilitated. Court proceedings should be considered a last resort – by their very nature they can become protracted, adversarial and convoluted where there are issues and allegations of abuse made. There is a requirement for mediation to be considered and an increased expectation by the court to consider alternative dispute resolution methods – in circumstances where there is urgency or abuse there may be exemptions to this requirement but it is wise to be aware of these requirements and take steps promptly since the growing pressures on courts, even with the advent of Pathfinder courts adopting a newer regime to try to deal with cases more effectively, mean that cases can last 9-12 months and potentially closer to 18 months if there is a dispute as to the factual matrix and the potential for expert involvement. The process can be challenging at times, and is a test of resilience when facing or having to contend with upsetting allegations and to preserve relationships between children and family members, whilst also dealing with often very delicate and sensitive issues.
Having access to legal advice can be integral to providing clarity and support during an incredibly difficult and stressful time, in the hope that it can find a positive solution for you and your children in the future. If this is something you would like advice on, please contact our Family Law team.