In re L (A Child) (Contact: Domestic Violence) (H (Children), In re, M (A Child), In re, V (A Child), In re)

In a private-law contact application, the child’s welfare is paramount. Contact commonly benefits a child, but it exists for the child’s welfare rather than as a parental right.

Where domestic violence may affect the outcome, the court must determine the allegations and assess the proved violence, its effects and risks, the child’s wishes, and the likely benefits and disadvantages of contact. Domestic violence is neither an automatic bar to contact nor a separate presumption against it. It is a potentially weighty factor in the individual welfare balance. A parent’s acknowledgement of past violence, insight, motivation and genuine steps to change may be important.

Before ordering interim contact pending fact-finding, the court must minimise the risk of physical or emotional harm and secure the safety of the child and residential parent.

Four fathers appealed from county-court orders refusing direct contact with their children against backgrounds of domestic violence, threats, a child’s entrenched refusal of contact, or serious conflict affecting the child’s welfare. In one appeal the father also challenged refusal of parental responsibility.

The appeals were heard together because they raised the common question of how allegations or findings of domestic violence should affect a contact application under the Children Act 1989. The court had assistance from the Official Solicitor and a joint psychiatric report concerning the effects of domestic violence on children and the risks and potential benefits of direct and indirect contact.

Each trial judge had ordered indirect contact and declined to compel immediate direct contact. The central issue was whether the judges had erred in their welfare assessments or exercises of discretion.

1. All four appeals were dismissed. The President gave the leading judgment. Thorpe LJ and Waller LJ agreed with the disposition; Waller LJ expressed the court’s essential conclusions in concise form.
2. Under Children Act 1989, sections 1(1) and 1(3), welfare remains paramount. Contact with a non-resident parent is often important because it may preserve or repair a relationship beneficial to the child. It is not, however, a parental right and must be ordered only where it serves the particular child’s welfare.
3. Where domestic violence is alleged and may affect contact, the allegations must be investigated and determined. If violence is proved, the court must weigh its gravity, the resulting risks and its impact on the child and residential parent against the positive factors favouring contact. There is no automatic bar to contact following domestic violence and no presumption that the offending parent must overcome. Domestic violence is a highly material factor in the ordinary welfare balance. The parent’s acknowledgement of the violence, insight, motivation and genuine efforts to change are likely to be important.
4. For interim contact before allegations are adjudicated, the court must give particular attention to likely physical and emotional harm if contact is granted or withheld. It must, so far as possible, minimise risk and secure the safety of the child and residential parent before, during and after contact.
5. The court upheld the separate discretionary decisions in each appeal. In Re L, grave violence, denial and a controlling motivation justified refusal of direct contact and parental responsibility. In Re V and Re M, compelling an unwilling child into contact was not required by welfare. In Re H, serious threats, continuing fear, abduction concerns and an acute cultural conflict justified indirect rather than direct contact.
6. A judge must assess expert evidence independently. A jointly instructed expert’s opinion is not binding. A disputed welfare report should not be both admitted and rejected without the report’s author being available for cross-examination; the error in the particular case did not assist the appellant.
7. On the Article 8 argument in Re L, the President added that a parent cannot rely on European Convention on Human Rights, Article 8, to obtain measures harmful to the child’s health or development.

• Court of Appeal: all four fathers’ appeals were dismissed: [2000] EWCA Civ 194.
• Manchester County Court: Judge Allweis refused direct contact and parental responsibility in Re L, while ordering indirect contact.
• Kingston-upon-Thames County Court: Judge Bishop continued indirect contact in Re V.
• Basingstoke County Court: Judge Rudd refused direct contact and ordered indirect contact in Re M.
• Norwich County Court: Judge Barham refused direct contact and ordered indirect contact in Re H.