P v D & Ors

In cases involving established domestic abuse, child arrangements must be assessed against the child’s welfare, the harm already suffered, and the risk of further harm. Contact should be ordered only where the child’s and resident parent’s physical and emotional safety can be secured.

In exceptional circumstances, the child’s ordinary interest in a relationship with both parents may be outweighed by the need for emotional and physical security. A court may restrict the exercise of parental responsibility by a prohibited steps order, including, exceptionally, prohibiting all exercise of that responsibility. Protective injunctions may be framed broadly and may continue until further order where the evidence demonstrates a continuing risk.

The proceedings concerned a mother, three daughters and the father. The mother and the two older daughters alleged prolonged domestic abuse, including serious sexual violence against the mother, physical abuse of the older children, and persistent attempts by the father to locate the family after separation.

The father had been convicted of three sexual offences against the mother and sentenced to 17 years’ imprisonment. The mother, X and Y sought additional findings, protective injunctions, orders regulating contact with Z, and restrictions on the father’s exercise of parental responsibility. The central issues were whether the further allegations were proved and what orders were required to safeguard Z and the other family members.

1. Findings. The court proceeded on the basis that the father’s criminal convictions were correct. Applying the balance of probabilities, and considering the evidence cumulatively rather than in isolation, the court accepted the evidence of the mother, X and Y. The further allegations of violence, abuse and persistent attempts to locate the family were proved. A witness’s lie on one matter did not require rejection of the whole of that witness’s evidence.
2. Contact. Z’s welfare was paramount under Children Act 1989, section 1, and the court applied the welfare checklist and Article 8 of the ECHR. Although children should ordinarily have a relationship with both parents, the past extreme violence, its profound emotional effect on Z, the continuing risk, and the father’s lack of insight outweighed the benefits of contact. The court therefore ordered that there should be no contact between Z and her father.
3. Protective orders. Under section 42 of the Family Law Act 1996, the court had a broad power to define molestation and to frame an injunction with sufficient particularity. In the circumstances, orders restraining violence, harassment, contact, attempted location, indirect communication, online conduct and interference through third parties were justified. The injunctions were made until further order.
4. Parental responsibility. A married father could not be deprived of parental responsibility itself, but its exercise could be restricted under sections 2(8) and 8 of the Children Act 1989. The exceptional facts justified prohibiting the father from taking any step in the exercise of parental responsibility until Z reached 18. The mother was relieved of any obligation to consult him, and organisations with notice of the order were prohibited from disclosing information to him or complying with his purported exercise of parental responsibility.
5. The court also prohibited removal of Z from the mother’s care, restricted passport issue, and discharged the wardship order.

First-instance decision in the High Court (Family Division). No appellate history was stated in the judgment.