Legal case notes: care order and parental contact

The facts
The child was born in 1997. Her parents’ relationship between 1988 and 2004, when they finally separated, was turbulent. The father had a personality disorder that resulted in him giving way to serious and uncontrollable violence. When the parents were together, this violence was inflicted on the mother, but they were apart for substantial periods, when the father was in prison for drug offences, or when the mother left him because she could not put up with the violence. Nevertheless, the father at all times showed love and affection for the child, who spent happy holidays with him in his parents’ caravan.

In 2002 care proceedings were begun, and the mother and child went to live in a refuge.

In 2003 the care proceedings concluded. The judge did not make a care order. He granted parental responsibility to the father, and made a contact order designed to ensure that the arrangements for contact would not require the parents to meet each other, together with a non-molestation order to protect the mother.

The father disregarded the terms of the contact order and of the non-molestation order. He insisted on meeting the mother to arrange contact, and made frequent threats of violence towards her. He was sentenced to four months’ imprisonment for breaches of the orders.

With the help of the police domestic violence unit the mother and child moved to new accommodation, unknown to the father, and assumed fresh identities. The father was desolated that he had lost contact with the child. He was bitterly angry with the mother for being responsible for this, and left no stone unturned to track her and the child down. He suborned a civil servant to gain access to computer information about the mother and child’s whereabouts, and paid a company to attempt to trace them through the internet. He harassed the mother’s parents, for which he was sentenced to five months’ imprisonment. The mother and child moved no less than 10 times in order to escape him.

The father applied to the court for contact, which the mother strenuously opposed. She applied for an order terminating his parental responsibility, and for an order under s 91(14) of the Children Act 1989 preventing him from making any further applications to the court.

The mother’s objection was not based upon the view that indirect contact would be harmful or unsettling for the child, but because she did not see how arrangements could be made which would be proof against a determined effort by the father to track her and the child to their present whereabouts. She also feared that indirect contact would merely encourage the father to make further applications, which would disturb the security of their new arrangements.

The applications were heard by the president. After a six-day hearing, he terminated the father’s parental responsibility, and made an order that the father should make no further applications without leave of the court. He dismissed the father’s application for direct contact with the child, but made an order for indirect contact, allowing the father to send cards to the child.

The president accepted the guardian’s view that it would be of long-term benefit to the child to keep alive a positive memory of the father, but said that the father must realise that this was not a stepping-stone to increased contact, but simply a reassurance that happy memories survived and that, one day, if and when the child wished to resume contact, she would have an up-to-date reassurance of a welcome. He tried to allay the mother’s fears by directing that all items of indirect contact be sent unsealed to the CAFCASS service manager, with discretion to him to decline to send on any item which he considered inappropriate.
The mother appealed against the order for indirect contact. She and the guardian argued that the president had erred in not attaching sufficient weight to her fears about safety. The guardian further argued that the child had been exposed to domestic violence, high levels of parental acrimony, and repeated changes of address. She was in desperate need for space to recover what was left of her childhood. The mother’s own peace of mind was also crucial. Her life was highly artificial, living with an assumed identity. The intrusion of the father, even by indirect contact, into this delicate situation, was likely to unsettle the child. The child’s need to experience a stable home life, where her physical, emotional and educational needs could be met on a consistent basis, overwhelmed any need she might have for a relationship with the father.

Held
The appeal was dismissed. The Court of Appeal considered that the president’s arrangements for communication were sufficent to protect the mother and child, and considered that the guardian’s argument before the Court of Appeal was inconsistent with her previously expressed view, which it preferred, that it would be of long-term benefit to the child to keep alive a positive memory of the father. The Court of Appeal considered that the guardian was in fact attaching too much weight to the danger of the father finding the mother and daughter, and that indirect contact would indeed be of long term benefit the child.

Comment
Indirect or ‘letter box’ contact is not new, and there is no question of principle in this case, but the determined and obsessive nature of the father’s wish to to see his daughter, and his persistent and serious violence, take this case to the very borderline between indirect contact and no contact at all. If the guardian had not at first expressed the view that the relationship between the child and the father might at some time in the future be capable of being resumed, the president would have been entirely justified in refusing all contact.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision-making within the court system.