H (A Child: Contact: Domestic Abuse), Re

In child-arrangements proceedings involving domestic abuse or other evidence of harm, the child’s welfare remains paramount and the presumption that parental involvement furthers welfare must be tested against the evidence. The court must explore measures that could promote contact, but that obligation is not absolute. Direct contact may be ended only exceptionally, as a last resort, where no workable alternative protects the child’s welfare. The assessment must include harm or risk to the child and resident parent, safety before, during and after contact, parental motivation and insight, and short-, medium- and long-term effects. Where no safe solution exists, the court must select the least harmful one. Good-quality current contact does not prevent termination where the surrounding arrangement is unstable and risks to the child’s placement or welfare are real.

The parents of a three-year-old child had a history of mutual violence, coercive and controlling behaviour, serious conflict and competing allegations. Following fact-finding and professional assessments, the Family Court in Truro ordered that the child live with the mother. Direct contact with the father was ended after one final session and replaced by indirect contact three times a year. The mother was permitted to withhold information about the child’s whereabouts.

The father appealed against the cessation of direct contact, arguing that the judge had placed undue weight on psychiatric evidence and that the evidence did not justify ending contact. Permission was granted on the contact issue only. The central question was whether the judge had properly balanced the benefits of continuing contact against the risks to the child and the mother.

Appeal dismissed. Lord Justice Peter Jackson gave the judgment, with Lord Justice Coulson and Lord Justice Nugee agreeing.

1. Applications under section 8 of the Children Act 1989 require a paramount welfare assessment. The statutory presumption that parental involvement furthers welfare is rebuttable. The court must balance the value of the parent-child relationship against the significance of any harm or risk of harm.
2. The approach summarised in D v E (Termination of Parental Responsibility) [2021] EWFC 37, drawing on Re C (Direct Contact: Suspension) [2011] 2 FLR 912, Re W (Direct Contact) [2013] 1 FLR 494 and Re J-M (A Child) [2014] EWCA Civ 434, was applicable. The court must take all reasonable steps to promote contact and consider available alternatives. That obligation is not absolute. Contact may be terminated only in exceptional circumstances, as a last resort, where no alternative is available and continued contact would harm the child’s welfare.
3. In light of FPR 2010 PD12J, the assessment applies not only to domestic abuse but to any relevant allegation, admission or evidence of harm or risk of harm. The court must consider risks to the child and the resident parent, safety before, during and after contact, parental motivation, insight and capacity to appreciate past and future abuse, and the medium- and long-term consequences. Any interference with family life must also be necessary and proportionate, with the child’s interests prevailing where rights conflict.
4. The recorder was entitled to find that apparently good contact was unsustainable. The father’s unchallenged attitudes created real and perceived risks to the mother, which translated into a real risk of breakdown of the child’s placement. Requiring the child to keep his whereabouts secret from his father was objectionable in principle and unsustainable in practice. The recorder was entitled to select cessation of direct contact and indirect contact as the least harmful available solution.
5. The psychiatric evidence was not fatally undermined. The recorder had carefully examined its defects, identified its core conclusions, and considered the evidence of four professional witnesses. The professional consensus was not relied on blindly. The absence of detailed consideration of infrequent contact or a future reintroduction strategy did not invalidate the decision because the identified risks applied substantially to infrequent contact and the father could seek restoration of direct contact by demonstrating meaningful change.

• Court of Appeal (Civil Division): [2024] EWCA Civ 326, 10 April 2024. Permission was granted on the contact issue only and the appeal was dismissed.
• Family Court in Truro: Recorder Ashby ordered that the child live with the mother, ended direct contact after one final session, and provided for indirect contact three times a year. The mother could withhold information identifying the child’s whereabouts.