K (Children), Re

In contact proceedings, the children’s welfare remains paramount. Where domestic violence has seriously affected children, the court must weigh the seriousness of the violence, the risks involved and its impact against any positive factors supporting contact. The parent’s ability to recognise the harm caused and make positive efforts to change is an important consideration.

Article 8 family-life rights do not require direct contact where interference is justified to protect the children’s rights and welfare. The Court of Appeal will not interfere with a carefully reasoned welfare decision supported by the evidence.

The father sought permission to appeal against an order of His Honour Judge Ellis in the Croydon County Court. The order refused face-to-face contact with his two sons, permitted indirect contact, and required leave before further applications under section 8 of the Children Act 1989.

The decision followed a long history of violence and threatening behaviour towards the mother, witnessed by the children, together with professional evidence that the children had been traumatised and that renewed contact would not serve their interests. The central issue was whether the judge had erred by refusing direct or supervised contact.

1. Application dismissed. The father’s application for permission to appeal was refused. The court directed that a transcript be supplied to him at public expense.
2. The judge had correctly treated the children’s welfare as paramount. In assessing contact where serious violence is alleged or established, the court must weigh the seriousness of the violence, the risks involved and its impact on the children against any positive factors supporting contact. The parent’s ability to recognise the harm caused and make positive efforts for change is an important factor. This approach was stated in Re L [2000] 2 FLR 334.
3. The evidence justified refusing direct contact. The violence had been witnessed by the children, they had been frightened and traumatised, and the father lacked insight into the effect of his conduct. His own psychiatric evidence indicated that an attempt to reintroduce contact would be likely to fail disastrously.
4. It was unnecessary for the latest reporter to interview the children again. Their wishes and feelings had previously been obtained by several professionals, they had settled during the period without contact, and the judge was entitled to conclude that further assessment would not materially alter the position.
5. The father and children had rights to family life under Article 8 of the European Convention on Human Rights. Any interference was justified to protect the children’s rights and freedoms. A contact centre could not remove the welfare risks identified on the evidence.
6. The Court of Appeal could not properly interfere with the careful and comprehensive welfare evaluation undertaken below.

• Croydon County Court: On 4 October 2001, His Honour Judge Ellis refused direct contact, permitted indirect contact, and prohibited further section 8 applications without leave.
• Court of Appeal (Civil Division): Permission to appeal dismissed on 17 December 2001.