Court Balances Domestic Abuse, Parental Contact, and Child Welfare in Custody Dispute

Citation: [2024] EWFC 1 (B)
Judgment on

Introduction

The case concerns the welfare and future arrangements of two children, Cala and Daib, following their parents’ separation. The father initiated proceedings requesting a child arrangement order, including residence and contact, as well as a specific issue order regarding the children’s religion. The court’s task was to balance the evidence presented, applying relevant legal principles under UK family law, to determine the most suitable outcomes for the children’s welfare.

Key Facts

The parents’ relationship ended in 2017, with the father subsequently found guilty of serious domestic abuse against the mother. The father later completed a Domestic Abuse Perpetrators Programme (DAPP), leading to his seeking further court orders for direct contact with his children. The case before Mr Recorder Adrian Jack was driven by the father’s concern that the children were becoming alienated from him, particularly after they reported seeing a video of Muslim violence shown to them by their mother, a claim the mother denied.

  1. Coercive and Controlling Behavior: The case discusses in depth the different levels of abusive behavior codified under the Serious Crime Act 2015 (referred to as “2015 behavior”) and the broader definition provided in the Domestic Abuse Act 2021 (referred to as “2021 behavior”), which may encompass a single incident. The judgment sets forth that the father’s past abusive behavior constituted both “2015 behavior” and behavior described by Practice Direction 12J.

  2. Welfare of the Child: Paramount consideration is given to the welfare checklist under section 1(3) of the Children Act 1989, assessing factors such as the children’s wishes and feelings, the potential harm they may suffer, and their physical, emotional, and educational needs.

  3. Parental Contact: The presumption of parental involvement is applied as per section 11 of the Children and Families Act 2014. The judgment references established case law that indicates that severing contact between parent and child is a measure of last resort.

  4. Section 91(14) Orders: The court considers whether to apply section 91(14) of the Children Act 1989, which restricts parties from making further applications without the court’s leave. The recent amendments to this provision under the Domestic Abuse Act 2021 expand the court’s discretion when considering such an order based on the risk of harm.

Outcomes

The court determined that the father’s completion of the DAPP and subsequent positive behavior changes significantly reduced the risk of harm to his children, contradicting concerns set out in a report by a Family Court Advisor. In light of the evidence, direct, unsupervised contact was reinstated. The court found the mother likely did show the children a traumatic video, contributing to their alienation from the father.

The court declined to issue a non-molestation order and a prohibited steps order against the father, as requested by Ms Senior’s report, due to a lack of evidence supporting an ongoing domestic threat or risk of harm to the children.

A section 91(14) order was not issued because the father’s previous applications were deemed successful and not shown to harm the children.

Conclusion

In this case, the court employed a holistic analysis of various legal principles concerning domestic abuse, parental contact, and the welfare checklist to conclude in favor of reinstating the father’s direct contact with his children. The resolution emphasizes the importance of evidence and the need to consider the long-term welfare of the children, rather than rely solely on past behaviors or allegations. This judgment reaffirms the principle that the welfare of the child is the court’s paramount concern in family proceedings.