K v F
[2023] EWHC 680 (Fam)
H (A Child: Contact: Domestic Abuse), Re
10 April 2024
[2024] EWCA Civ 326
Court of Appeal
A dad's appeal to see his son more was rejected. The court considered a history of violence and found the mom's mental health could be badly affected by contact, putting the child at risk. Although they currently see each other, the judge decided that letters are safer for now to prevent family breakdown and further harm.
Key Facts
- •A father appeals a child arrangements order granting him no face-to-face contact with his three-year-old son for an indefinite period.
- •The parents have a history of domestic violence and mutual accusations.
- •The child, James, has a serious health condition.
- •The mother made and retracted an allegation of rape against the father.
- •A fact-finding hearing found both parents to have behaved poorly and to have caused emotional harm to James.
- •Professional assessments (psychiatric and parenting assessments) raised significant concerns about the father's personality and capacity for change, while expressing more optimism about the mother's potential for growth.
- •The final hearing resulted in an order limiting the father's contact to indirect contact (letters, cards, photos) three times a year and a one-time 'goodbye for now' visit.
Legal Principles
The welfare of the child is paramount.
Children Act 1989, s.1
There is a presumption that parental involvement furthers a child's welfare, unless the contrary is shown.
Children Act 1989, s.1(2A)
Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort.
Re C (Direct Contact: Suspension) [2011] 2 FLR 912; Re W (Direct Contact) [2013] 1 FLR 494; Re J-M (A Child) [2014] EWCA Civ 434; D v E (Termination of Parental Responsibility) [2021] EWFC 37
The court must consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse.
FPR 2010 PD12J, para. 7
In balancing rights under Article 8 ECHR (right to family life), the child's interests must prevail.
Yousuf v Netherlands [2003] 1 FLR 210
Outcomes
The appeal was dismissed.
The court found that the recorder's decision, while difficult, was justified given the high risk of harm to both the mother and the child from continued direct contact. The risks of destabilizing the child's placement with his mother, due to the father's behaviour and the mother's CPTSD, outweighed the benefits of continued contact.
The child arrangements order was upheld.
The order limiting contact to indirect contact was deemed the least harmful option in the circumstances. The professional assessments and the judge's assessment of the father's lack of insight and potential for continued harm were considered determinative.