Submitted by: Ahnaaf Ibne Zaman
Please write a critical essay within the scope of one of the following topics (chosen topic displayed only): The presumption in favour of contact between children and their parents.
Questions should be addressed with reference to English and Welsh law AND/OR Northern Irish law.
The Presumption In Favour Of Contact: An Operational Impracticality?
The presumption in favour of contact between children and their parents has acted as a valuable source of guidance to the English and Welsh courts in considering child arrangement orders under Section 8 of the Children Act 1989 (CA 1989). However, this paper will submit that the courts’ adamant perpetuation of this presumption has achieved such force as to creating questionable outcomes in certain circumstances[1], contradicting the very principle upon which it was established, i.e. the Welfare Principle. Alternatively, if the courts do not apply this presumption as heavily in every case, they are then likely considered to have interfered with Convention rights; thus, creating an interaction where contact orders are granted in the detriment of the child’s welfare. In discussing this, the development of this presumption will be assessed before considering whether contact is actually beneficial, given the extensive contradictory research evidence. After which, the discussion will address how the courts’ application of the presumption led to the high threshold required to displace the presumption and for it not be considered an interference of Convention rights. This paper will then conclude by highlighting that the presumption in favour of contact leaves much to be desired in terms of practicality as, in its current application, it may give way to outcomes that are contradictory to the Welfare Principle; and even if the courts were to limit its application, it will be considered to have interfered with the rights of the child and parents.
i. Foundation and Development of the Presumption
Before the presumption in favour of contact between a parent and child was placed on a statutory footing by way of Section 1(2A) of the CA 1989, there was a ‘universal judicial recognition’[2] that it is almost always beneficial to the child’s welfare to have contact with the non-resident parent[3] unless there are ‘cogent’ reasons against it[4]. As such, the child’s welfare is the paramount consideration of the courts; thus, the courts must cast the issues in a contested case into the framework of the welfare checklist[5]. Furthermore, international obligations such as Article 9(3) of the United Nations Convention on the Rights of the Child 1989 (UNCRC) provides that state parties must respect the child’s right to maintain contact with non-resident parents unless it would be contrary their best interests. The European Court of Human Rights have also held that, although Article 8 of the European Convention on Human Rights (ECHR) did not explicitly provide a right of contact between family members, the mutual enjoyment parent/child contact forms a fundamental element of family life and domestic measures hindering such enjoyment would amount to an interference of the right to respect of private and family life in Article 8[6].
The welfare checklist[7] is considered to exemplify a utilitarian approach through a high level of judicial discretion utilised to come to an optimal outcome[8]; however by virtue of the interaction between the presumption and the aforementioned Convention rights, the courts have adopted a determinate rule-based approach[9] indicating that parent/child contact is a right of the child[10] that the courts should not ‘give up’ in ensuring[11]. The force that the presumption in favour of contact has gathered by way of this rule-based approach, despite research indicating that contact is not necessarily in the child’s best interests, has created a very high threshold to be satisfied in order for there to be adequate reasoning in displacing the presumption and refusing contact.
ii. Is Contact Actually Beneficial?
This issue of a determinate rule-based approach created further debate following the seminal decision in Re L (A Child) (Contact: Domestic Violence) (Re LVMH)[12]. Thorpe LJ, relying on a report by Dr. Clare Sturge and Dr. Danya Glaser (Sturge/Glaser Report), concluded that the benefits of contact should be assumed as the report fully identified the benefits of a child’s contact with the absent parent. However, Gilmore[13] contests that the report emphasised that the benefits and detriments of contact are fact-sensitive, and that the quality of the contact and its satisfaction of the conditions outlined in the report were important. Furthermore, Dr. Sturge herself had stated that there is no research evidence indicating that contact, as opposed to no contact, is in the children’s interests[14]. As such, Thorpe LJ’s generalised decision-making approach of contact ‘almost always’ being in the best interests of the child is flawed and, according to Dr. Sturge, misinterpreted the meaning of the report[15].
Thorpe LJ had also acknowledged that the use of a ‘presumption’ would distract the courts’ attention away from an assessment of the welfare checklist and thus adopted the term ‘assumption’ as it could be ‘offset’ in circumstances where contact may not be in the best interest of the child, such as domestic and substance abuse, and the courts must apply the welfare checklist. However, Kaganas argues that this distinction was of little significance[16] as the courts continue to operate on a generalised de facto presumption that contact is almost always in the child’s best interests and that contact should be promoted[17]. Additionally, although the statutory presumption does not apply where there is harm to the child, research evidence[18] that contact was awarded regardless of serious objections concerning child, domestic and substance abuse, suggest the concept of harm has been interpreted narrowly[19].
Furthermore, research by the Australian Institute of Family Studies[20] on a similar presumption of ‘equal shared parental responsibility’ discovered that there is no decisive evidence of a link between children’s well-being and shared care as the courts have emphasised, and that children with shared time did worse in cases involving family violence through psychological damage[21] by exposure to abuse and conflict. Even the Sturge/Glaser report[22] suggested that there should be no assumption that contact with a violent parent is in the child’s interests and suggested that, for contact to even be considered, domestically violent parents should establish how their contact benefits the child. Nevertheless, despite these findings, the courts continue to hold that domestic violence should not be a bar to contact, but instead should require the effects of domestic violence to be considered with the welfare checklist[23]. Practice Direction 12J[24] (PD12J) had clarified this by making specific reference to the risks posed by ‘domestic abuse’ by providing that the presumption should not apply in cases where abuse has been established; the welfare checklist ought to be used instead[25].
The discussion above suggests that contact is not necessarily always in the best interests of the child[26], and occasionally it may even be detrimental to the child; thus, the courts should focus on the individual facts and quality of contact, rather than any theoretical general principle that contact is beneficial, especially in sensitive circumstances such as cases with domestic violence. Dame Elizabeth Butler-Sloss[27] suggests likewise that the courts’ general approach of a presumption favouring contact may have detracted attention from the adverse effects of exposure to conflict and violence, and that greater awareness of its consequences on children by family judges and magistrates is needed. Therefore, the presence of such a strong presumption may undermine the court’s paramount consideration of a child’s welfare[28], and as such, this paper submits that there should be a consideration of the facts and an application of the welfare checklist to determine whether contact should be awarded in contested cases, rather than a generalised approach that contact is almost always in the best interests of the child, despite the research discussed above indicating to the contrary.
iii. Is the Right to Contact a Barrier to the Court’s Discretion?
Having established that contact with the non-resident parent may not necessarily always be in the best interests of the child, a hurdle faced by the courts in utilising the welfare checklist to refuse contact is that it exposes the courts to claims that it amounts to an undue infringement of one’s Convention rights. As identified earlier, it was held in Johansen v Norway[29] that the mutual enjoyment of contact between parent and child constitutes a fundamental element of the right to respect for private and family life as per Article 8 of the ECHR and therefore, measures obstructing this would be an unlawful interference of one’s convention right according to Section 6(1) of the Human Rights Act 1998 (HRA 1998). However, it was also held that a child’s best interests warrant particular importance and as such, a parent cannot be entitled to have measures taken that would harm the child’s health and development. Thus, in justifying an interference through refusal of a contact order, as being ‘necessary in a democratic society’ according to Article 8(2) of the ECHR, the child’s best interests are of crucial importance[30]. However, despite the importance attached to the child’s best interests, the Court of Appeal in Re A (Intractable Contact Dispute: Human Rights Violations) [31] had remitted the case for re-hearing, going against the daughter’s firm opposition to further court proceedings and contact with her father whom she was fearful of, on the grounds that the refusal of direct contact was a violation of the Convention right to effective relationship between the daughter and father. This highlights that the courts are willing to go against the wishes of the child, at the expense of their emotional wellbeing, in an overbearing attempt to comply with their obligations under Section 6(1) of the HRA 1998.
Andrew Bainham posits that it is wrong, and perhaps misguided, to assert that there is no right to contact given the presence of children’s and parents’ right to family life[32] and that in ensuring this right, decisions maximising contact must be reached unless it would be contrary to the welfare and interests of the child[33]. Similarly, the UNCRC by way of Article 9(3) clearly identifies that children possess a right to maintain contact with both parents regularly; however, the parallels between the UNCRC and the ECHR are that they both indicate that an interference of this right may be justified if it is in the child’s best interests.
The issue that arises now is with regards to the interaction between the presumption favouring contact and the grounds for displacing this right of contact where it would be detrimental to the child’s welfare. There still exists a strong presumption in favour of contact by way of the courts’ determinate rule-based enforcement of the generalised notion that contact is almost always beneficial, and this in turn acts to create a very high threshold in establishing sufficient reasons against contact. The Convention provisions do not imply that contact must always be allowed, however such a high threshold for refusal makes it difficult for refusal of contact to not be considered an interference of Convention rights. Stephen Gilmore[34] had also highlighted this problematic interaction between the presumption and right of contact through the stance that if there must be good reasons for denying contact to protect the parent/child relationship, it does not follow that the law must adopt a presumption in deciding so.
iv. Concluding Remarks
The conclusions that can be drawn from the discussions above is that although the presumption in favour of contact between children and parents had initially served the purpose of guiding the courts in determining child arrangement orders, the force that it has gathered in its application, by way of parent/child contact being enshrined as a Convention right and the adamant perpetuation of the generalised notion that contact is almost always in the best interests of the child, despite the contradicting research evidence, has led to a situation where the courts are inclined to award contact even where it would undermine the Welfare Principle by detracting the courts’ attention from applying the individual case facts to the welfare checklist; making it a determinate rule-based presumption.
However, a further caveat to this is that even if the courts were to refuse contact upon utilising the welfare checklist, without a heavy reliance on such a strong presumption in favour of contact, they would then be faced with claims of an undue interference of Convention rights as the courts must have satisfied the high threshold required to override the right to contact. Therefore, it is respectfully submitted that the presumption in favour of contact between children and their parents is flawed and leaves much to be desired in terms of practicality as its current state of application goes against the very principles upon which it was established and even if the courts were to attempt to rectify this, it would likely be considered an interference of one’s Convention rights due to the high threshold for refusal that it has established.
Bibliography
Table of Cases (UK)
1. M v M (Child: Access) [1973] 2 All ER 81
2. Re A (Intractable Contact Dispute: Human Rights Violations) [2013] EWCA Civ 1104
3. Re B (A 14 Year Old Boy) [2017] EWFC B28 (Fam)
4. Re F (Relocation) [2012] EWCA Civ 1364
5. Re L (A Child) (Contact: Domestic Violence) (Re LVMH) [2000] 2 FLR 334
6. Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124
7. Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18
Table of Cases (Other Jurisdictions)
1. Elsholz v Germany (App no 25735/94) (2002) 34 EHRR 58
2. Johansen v Norway (App no 17383/90) (1997) 23 EHRR 33
Table of Legislation (UK)
1. Children Act 1989
2. Human Rights Act 1998
Table of Legislation (Other Jurisdictions)
1. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended)
2. United Nations Convention on the Rights of the Child 1989
Books
1. A Bainham, B Lindley and M Richards, Children and Their Families: Contact, Rights and Welfare (1st edn Hart, 2003)
2. A Diduck and F Kaganas, Family Law, Gender and the State (3rd edn Hart, 2012)
3. J Hunt and A Macleod, Outcomes of Applications to Court for Contact Orders after Parental Separation or Divorce (1st edn MOJ, London 2008)
4. S Harris-Short and J Miles, Family Law Text, Cases and Materials (1st edn OUP, Oxford 2007)
Journal Articles
1. A Bainham and S Gilmore, ‘The English Children and Families Act 2014’ (2015) 46 VULWLR 627
2. C Sturge and D Glaser, ‘Contact and Domestic Violence - The Experts' Court Report’ (2000) 30 FL 615
3. F Kaganas, ‘Parental Involvement: A Discretionary Presumption’ (2018) 38 LS 1
4. R Bailey-Harris, J Barron and J Pearce, ‘From Utility to Rights? The Presumption of Contact in Practice’ (1999) 13 IJLPF 111
5. S Gilmore, ‘Contact/Shared Residence and Child Well-being: Research Evidence and its Implications for Legal Decision-Making’ (2006) 20 IJLPF 344
6. S Gilmore, ‘Disputing Contact: Challenging Some Assumptions’ (2008) 20 CFLQ 285
Electronic Materials
1. Australian Institute of Family Studies, ‘Evaluation of the 2006 Family Law Reforms’ [2009] <https://aifs.gov.au/sites/default/files/publication-documents/evaluationreport.pdf> accessed 29 November 2019
2. C Henricson and A Bainham, ‘Human Rights Obligations and Policy Supporting Children and Families’ [2005] <https://www.jrf.org.uk/report/human-rights-obligations-and-policy-supporting-children-and-families> accessed 29 November 2019
3. J Fortin, J Hunt and L Scanlan, ‘Taking a Longer View of Contact: The Perspectives of Young Adults Who Experienced Parental Separation in their Youth’ [2012] <http://sro.sussex.ac.uk/id/eprint/44691/1/Nuffield_Foundation_Research_Summary-FINALupdate2.pdf> accessed 29 November 2019
4. The Hon Mr Justice Cobb, ‘Review of Practice Direction 12J FPR 2010-Child Arrangement and Contact Orders: Domestic Violence and Harm’ [2016] <https://www.judiciary.uk/wp-content/uploads/2017/01/PD12J-child-arrangement-domestic-violence-and-harm-report-and-revision.pdf> accessed 29 November 2019
In-Text Citations [1] R Bailey-Harris, J Barron and J Pearce, ‘From Utility to Rights? The Presumption of Contact in Practice’ (1999) 13 IJLPF 111, 126 [2] Re L (A Child) (Contact: Domestic Violence) (Re LVMH) [2000] 2 FLR 334 (Thorpe LJ) [3] Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 (Bingham MR) [4] A Bainham and S Gilmore, ‘The English Children and Families Act 2014’ (2015) 46 VULWLR 627 [5] Children Act 1989, s.1(3) [6] Johansen v Norway (App no 17383/90) (1997) 23 EHRR 33 [7] (n5) [8] Bailey-Harris and others (n1) [9] S Harris-Short and J Miles, Family Law Text, Cases and Materials (1st edn OUP, Oxford 2007) 865, 874 [10] M v M (Child: Access) [1973] 2 All ER 81 (Wrangham J) [11] Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18 [12] Re LVMH (n2) [13] S Gilmore, ‘Contact/Shared Residence and Child Well-being: Research Evidence and its Implications for Legal Decision-Making’ (2006) 20 IJLPF 344, 358 [14] S Gilmore, ‘Disputing Contact: Challenging Some Assumptions’ (2008) 20 CFLQ 285, 309 [15] Ibid [16] F Kaganas, ‘Parental Involvement: A Discretionary Presumption’ (2018) 38 LS 1 [17] Re B (A 14 Year Old Boy) [2017] EWFC B28 (Fam) [18] J Hunt and A Macleod, Outcomes of Applications to Court for Contact Orders after Parental Separation or Divorce (1st edn MOJ, London 2008) [19] Kaganas (n16) [20] Australian Institute of Family Studies, ‘Evaluation of the 2006 Family Law Reforms’ [2009] <https://aifs.gov.au/sites/default/files/publication-documents/evaluationreport.pdf> accessed 29 November 2019 [21] J Fortin, J Hunt and L Scanlan, ‘Taking a Longer View of Contact: The Perspectives of Young Adults Who Experienced Parental Separation in their Youth’ [2012] <http://sro.sussex.ac.uk/id/eprint/44691/1/Nuffield_Foundation_Research_Summary-FINALupdate2.pdf> accessed 29 November 2019 [22] C Sturge and D Glaser, ‘Contact and Domestic Violence - The Experts' Court Report’ (2000) 30 FL 615 [23] (n5) [24] The Hon Mr Justice Cobb, ‘Review of Practice Direction 12J FPR 2010-Child Arrangement and Contact Orders: Domestic Violence and Harm’ [2016] <https://www.judiciary.uk/wp-content/uploads/2017/01/PD12J-child-arrangement-domestic-violence-and-harm-report-and-revision.pdf> accessed 29 November 2019 [25] Kaganas (n16) [26] A Diduck and F Kaganas, Family Law, Gender and the State (3rd edn Hart, 2012) 318 [27] Re LVMH (n2) [28] Re F (Relocation) [2012] EWCA Civ 1364 [29] Johansen (n6) [30] Elsholz v Germany (App no 25735/94) (2002) 34 EHRR 58 [31] [2013] EWCA Civ 1104 [32] A Bainham, B Lindley and M Richards, Children and Their Families: Contact, Rights and Welfare (1st edn Hart, 2003) [33] C Henricson and A Bainham, ‘Human Rights Obligations and Policy Supporting Children and Families’ [2005] <https://www.jrf.org.uk/report/human-rights-obligations-and-policy-supporting-children-and-families> accessed 29 November 2019 [34] Gilmore (n14)