President explains that need to preserve parental contact does not ‘trump’ findings of domestic abuse

Much has been said recently about how the family courts deal with child arrangements disputes where the parent with whom the children are living makes allegations of domestic abuse against the other parent.

In October the Domestic Abuse Commissioner published a report in which it was suggested that the courts operate a ‘pro-contact culture’ that tends to play down abuse allegations, in favour of maintaining contact between the child and an abusive parent.

And to address those concerns the government subsequently announced that it is to remove the presumption written into the law that, unless the contrary is shown, the involvement of both parents in this life of a child will further the child’s welfare.

But do the courts really take a ‘contact at all costs’ approach to these cases?

In a recent speech the President of the Family Division Sir Andrew McFarlane explained that they do not (or at least should not).

The President began by pointing out that, on one view, there should be nothing remarkable in the Family Court having, as its default position, the likelihood of it being in the interests of any child to have some continuing relationship with both parents post-separation. After all, he suggested, if you were to ask a member of the public whether, when a child’s parents separate, the child should, or should not, stay in contact with both parents the answer would be an overwhelming ‘yes’.

The courts, he said, have always placed the importance of maintaining a relationship with each parent into the overall balancing exercise as to what is best for the child’s welfare.

He went on:

“The value of maintaining contact with a parent is properly part of [the balancing exercise], but it is not a trump card. It is but one tile in the overall welfare mosaic. How prominent that tile may be in a particular child’s welfare pattern will differ … from case to case. In some cases, other tiles, for example the risk of harm from abuse, may dictate the colour and shape of the overall picture and the court’s final order.”

The President then made clear that:

“If … those who allege abuse have been told that, whatever they say, and whatever the other parent may have been found to have done, the court will order contact in any event, then that is both wrong and deeply troubling. What is described there would, indeed, make contact a trump card, rather than one element in the overall welfare jigsaw.”

The presumption of parental involvement, he said, was not a presumption that there should be ‘contact at all costs’ – a parent can only be involved in the child’s life in a way that does not put the child at risk of suffering harm, and any risk has to be evaluated by the court.

The President concluded by saying:

“If those who have been abused are being advised that the court will ignore their allegations, or, even if proved, will always order contact ‘come what may’, then those who give such advice are wrong, and if those acting for a complainant encounter a court that acts in that manner then, I would suggest, there would be clear grounds for appeal.”

In short, any parent with care of children who is the victim of domestic abuse should not go to court assuming that, no matter what, they will be put at risk of further abuse by the court awarding the other parent contact.

You can find the full speech here.

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