Balancing Family Contact Presumption and Child Welfare in the Family Justice System

Within the Family Justice System, one of the important and difficult questions relates to post separation custody and contact between parents and children. Reform made to the Children’s Act 1989 in 2014 added a presumption in favour of family contact under Section 1(2A). However, the coming to light of cases of homicide of children in post separation contact with the perpetrator, raises questions on how far the courts can be guided by the presumption in Section 1(2A). To this question, Justice Cobb has observed that the presumption cannot operate in a blanket sense in all cases. This essay critically evaluates the statement of Justice Cobb with reference to the Family Justice System’s treatment of domestic violence in child arrangement disputes between parents. This essay argues that considering how the orders for contact made within the Family Justice System have also led to harm to children from abusive parents, Justice Cobb’s statement is correct and the call for a balance between consideration to presumption for family contact in Section 1(2A) and the principle of welfare of child is relevant and necessary.

The Children and Families Act 2014 amended the Children’s Act 1989 through Section 11 which led to the insertion of the sub section (2A) into Section 1 of Children’s Act 1989. Section 1 (2A) provides:

“A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.”

Therefore, Section 1 (2A) is in the nature of a presumption which the court makes wherein unless the contrary is proved, the court presumes that maintaining relationship with parents after separation would be in the best interests of the child; this is based on the use of the terms ‘unless the contrary is shown’. The presumption is based on the generally accepted viewpoint that children benefit from a relationship with both parents post separation. It may also be mentioned that the reforms made under the Children and Families Act 2014 including to the Children’s Act 1989, are in accordance with the UN Convention on Rights of Child. Article 9 of the UN Convention on Rights of Child provides that children should not be separated from parents against their will, unless the situation shows that it would be in the best interest of the child to be separated from the parent. Continue your journey with our comprehensive guide to Legal Gaps in Cohabitation.

However, the question that is pertinent in such scenario is whether this presumption can operate where there is a possible harm to the child due to exposure to domestic violence or child abuse at the hand of a parent. This is the issue that Justice Cobb raises in his review of Practice Direction 12J. It may be mentioned here that one of the most important principles of the Children’s Act 1989 is that of the welfare of the child is paramount. This is the paramountcy principle, which the courts are to consider when determining how much contact each parent should have with the child after their separation. The paramountcy principle puts the interests of the child over all other concerns that may be involved in the case. The UN Convention on Rights of Child, provides the same principle in

Article 3(1) where it notes that the best interests of the child should be a primary consideration in actions and decisions concerning the children. In the UK, courts have accepted that contact with family is an essential component for ensuring the best interest of the child. For instance, in C (Children), the court held that contact between parent and child is a fundamental element of family life and creates a positive obligation on the state and courts to take measures to maintain or to restore contact between parents and children, when such contact is broken. Therefore, one aspect of the paramountcy principle is that it establishes that contact with family is in the best interest of the child.

It is against the above noted established principles which presume a link between the welfare and best interest of the child and contact with parents and family, that Justice Cobb’s views are to be considered critically. Justice Cobb has observed that:

"The presumption contained in Section 1(2A) of the Children Act 1989" does not operate "to require 'contact at all costs' in all cases, without a proper evaluation of the risk of harm from domestic abuse.”

The above statement is premised on the ground that it cannot always be in the best interest of the child to have contact with the parent; the statement that the presumption in Section 1(2A) does not require 'contact at all costs' clarifies that the presumption does not work in a blanket sense in all situations. It is also important that Justice Cobb notes that a proper evaluation of the risk of harm from domestic abuse is necessary before the court decides to allow the operation of the presumption in Section 1(2A). Justice Cobb makes these observations in the specific context of possible domestic abuse that children may face through contact with parent. Thus, the specific concern is to with reference to Practice Direction 12J, through which an effort is made to make the family justice system safer for victims of domestic violence and their children. Justice Cobb’s observations that parental contact cannot always be presumed to be for the benefit of the children is specifically concerned with situations where the child may be exposed to domestic violence or abuse, as is noted in the following statement:

"Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply."

Justice Cobb’s observations have to be seen in the context of how the presumption in Section 1(2A) can be juxta positioned with the paramountcy principle in Section 1 of the Children’s Act 1989. The question is whether the presumption that contact with the family is in the best interests of the child can truly hold in all circumstances, including those involving domestic abuse. Authorities indicate that while presumptions have played an important role in interpreting the welfare of children under the Children Act 1989, courts have also steered away from broad generalisations as to how these presumptions work and have instead applied the paramountcy principle in individual cases. Prior to the enacting of Section 1(2A) , the courts used to apply the paramountcy principle as the sole consideration so that the right of the parent to contact with the child was considered only to the point where such right will contribute to the welfare of the child. Where the best interest of the

child is not served by the contact with the parent, the court applying the paramountcy principle could deny the right of access to the child. After the coming into effect of the presumption in Section 1(2A) which works in favour of establishing contact between parent and child, a question arises as to whether this presumption is to be applied in a blanket sense in all cases or as Justice Cobb has suggested, this presumption does not apply to establish 'contact at all costs' and in all cases and without a proper evaluation of the risk of harm from domestic abuse.

A welfare checklist is provided in the Children Act 1989, Section 1 (3) (a) to (g), which relates to a range of considerations for the courts to pay attention to before making orders related to the upbringing of the child and contact with parents. These considerations include the ascertainable wishes and feelings of the child concerned, the physical, emotional and educational needs of the child, the likely effect on the child of any change in his circumstances, the age, sex, background and any relevant characteristics of the child, the possibility of harm which child has suffered or is at risk of suffering, the capacity of parents to meet their responsibilities of meeting the needs of the child, and the range of powers available to the court. In the context of this essay, Section 1(3)(e) is relevant as it allows the court to consider the possibility of harm which child has suffered or is at risk of suffering. Harm in this context can be physical harm, emotional harm or any other harm. The possibility of harm due to abuse comes within the scope of this provision as noted by the court on L v L, in which the judge awarded custody to mother and supervised access to father of a five year old girl, where evidence showed that the father had abused the daughter. The court did not completely deny access to the father because the daughter was attached to him but did ensure that the father’s visits would be supervised. Clearly, the family justice system has treated domestic violence to be a serious mediator of whether they would allow parental access or not, and in what form would they allow parental access.

Co-occurrence between domestic violence and child abuse is established in literature based on empirical data, which shows that there is a strong interrelationship between domestic violence and child abuse. Even post separation between parents, children may continue to experience child abuse at the hands of an abusive parent due to contact with the parent and the battered parent may also continue to suffer domestic violence. An important study by Buchanan et al, found that 78 per cent of parents experienced domestic violence after the relationship in 64 per cent of cases. It is an indictment of the Family Justice System that it can let abusive parents get away with post domestic violence and child abuse. A 2010 study on the experience of women and children with post separation domestic violence and child abuse indicates that 50% of the domestic abuse incidents occurred post-separation and a significantly large number occurred with relation to court ordered arrangements for child contact. This indicates that the Family Justice System may at times also be

responsible for the perpetuation of domestic violence and child abuse due to the contact system. The more stringent critique of the role of Family Justice System in this regard is given by Justice Cobb himself where he notes that out of the nineteen child homicides that year, at least twelve were of children who were in contact with their fathers (the perpetrators in these cases) through contact arrangements ordered by the Family Courts. Indeed, Justice Cobb observed that the Family Justice System cannot be allowed to become one of the routes through which the perpetrator of domestic violence is allowed to continue the domestic violence or subject the child to abuse. The fact that some children who were put in contact with their abusive parents through the courts under the presumption of Section 1(2A) is a strong argument against the use of the presumption to allow contact without considering the possible harm to the child. In this sense, Justice Cobb’s observations in the review are relevant and important and they are to be seen against the background of the homicides of the children.

To conclude this essay, the Family Justice System is required to consider the welfare of the child and the possibility of harm to the child from a parent before it gives effect to the presumption in Section 1 (2A). There cannot be a blanket operation of the presumption because it is possible that the child may be harmed in situations where domestic violence is involved. Courts are expected to consider this aspect of the possible contact between parent and child before making an order for contact. The paramountcy principle, which requires the welfare of the child to be considered as the paramount consideration is applicable in this context and would override the presumption in Section 1(2A). Looking for further insights on Property Disputes and Ensuring Equitable Treatment? Click here.

Table of cases

J v C (1970) AC 668.

L v L (Child abuse: access) [1989] 2 FLR 16, CA.

Re C (A child: suspension of contact) 2011 2 FLR 912; C (Children) [2011] EWCA Civ 1774.

Re K D (a minor) (ward: termination of access) (1988) 1 AC 806.

Books

Bancroft L, Silverman JG, and Ritchie D, The batterer as parent: Addressing the impact of domestic violence on family dynamics (London: Sage Publications 2011).

Buchanan A, Hunt J, Bretherton H and Bream V, Families in Conflict: Perspectives of children and parents on the Family Court Welfare Service (The Policy Press 2001).

Buck T, International Child Law (Oxon: Routledge 2014).

Norgrove D, Family justice review: Final report (London: The Stationery Office 2011).

Roberts MM, Mediation in family disputes: principles of practice (Ashgate Publishing, Ltd. 2014)

Sloan B, Primacy, Paramountcy, and Adoption in England and Scotland in Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge: CUP 2016)

Journals

Eekelaar J, ‘The role of the best interests principle in decisions affecting children and decisions about children’ (2015) 23 (1) The International Journal of Children's Rights 3.

Featherstone B and Peckover S, ‘Letting them get away with it: Fathers, domestic violence and child welfare’ (2007) 27(2) Critical Social Policy 181.

James A, ‘Giving voice to children's voices: Practices and problems, pitfalls and potentials’ (2007) 109 (2) American anthropologist 261.

Herring J, “The welfare principle and the children act: presumably it's about welfare?” (2014) 36(1) Journal of Social Welfare and Family Law 14.

Humphreys C, ‘Crossing the Great Divide: Response to Douglas and Walsh’ (2010) 16(5) Violence Against Women 509.

Lowe NV and Douglas G, Bromley's family law (Oxford University Press 2015).

Morris P, ‘Screening for Domestic Violence in Family Mediation Practice’ (2011) 41 Family Law 649.

Others

Justice Cobb, Review of Practice Direction 12J FPR 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm,