We recently attended a Y-Res family law conference, presented by Harcourt Chambers, which provided some valuable updates on recent case decisions and in particular, the considerations to bear in mind when making the decision whether to stop contact for one parent to see their child.
The law on cessation of contact had derived from the case of Re A (2019) EWHC 612 (Fam); this case involved an appeal from a mother against an order which stopped all direct contact with her daughter and the father. This case involved allegations of sexual abuse made by the mother’s daughter from a previous relationship against the father.
In 2015, the Court made no findings and agreed that the daughter should live with the father and her stepmother and have supervised contact with the mother and the stepsister. In January 2017 the matter returned to the court, as the Mother wished to have the 2015 contact arrangement reconsidered.
There was a final hearing which took place in March 2017; this concluded in a consent order which included a s91 (14) Children Act 1989, known as a Barring Order, for 12 months.
Following on from this in May 2017 the father sought to vary the Child Arrangement Order and wanted to cease all direct contact with the mother and stepsister until his daughter was 15 years old. The reason for doing this was due to the fact this his stepdaughter was approaching different authorities claiming that her sister is danger and continued to make allegations against the father.
In this case the mother did not go to the authorities herself; but may have known her daughter approached them.
The mother counter – issued and sought permission to also vary the Child Arrangement Order to allow her to stay in contact.
At the final hearing February 2018, HHJ Meston had made an order that
• There would be no direct contact between the mother and her daughter.
• There may be indirect contact once a month by way of written communication.
• There shall be a s9(14) order in place for a period of three years.
The mother in this case had successfully appealed as it seemed that to stop all direct contact would potentially disable the relationship.The above judgment was criticised on the following points:
• It could not have been right to go from agreed contact in March 2017 to no contact at all in February 2018.
• The judge did not consider contact between the mother and daughter and the daughter and her stepsister separately; the position of the mother and stepsister were not the same as the two did not coincide.
• The judge did not obtain the report of a child psychologist/psychiatrist before stopping contact.
• Little analysis undertaken by the judge to consider the effect and loss potentially caused by cessation of contact.
• No full consideration of alternative ways to undertake contact, or of the possibility to have a very limited level of contact.
Following on from this case the test that is now applied when considering cessation of contact was set out in Re J – M ( A child) (Contact Proceedings: Balance of Harm) 2015 1 FLR 838
• The welfare of the child is paramount
• It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom he or she is not living
• There is a positive obligation on the state and therefore on the judge to take measures to promote contact, grappling with all available alternatives and taking all necessary steps that can reasonably be demanded, before abandoning hope of achieving contact.
1. Consider the instruction of a child psychologist to examine the impact on the child should contact be stopped.
2. Excessive weight should not be accorded to short term problems and the count should take a medium and long term view
3.Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so, as a last resort, when there is no alternative and only if contact will be detrimental to the child’s welfare.
The principles set out above in Re J – M are the ones that are now followed in cases of Child Arrangement Orders.
The procedure to apply when making a Barring Order in such cases was set out in Re T (a Child) (Suspension of Contact) (2015) EWCA Civ 719 is as follows:
1. Is the court seised of the application?
2. Understand the meaning and effect of such an order.
3. Have full knowledge on the evidential basis on which an order is sought.
4. Have a proper opportunity to make representations in relation to the making of such an order; this may mean of course adjourning the application for it to be made in writing and on notice.
Cessation of contact would only be considered as a last resort if these above principles could not be met.
By Tauyabba Mohammed
SMQ Legal Paralegal
Harcourt Chambers Handout by Counsel Mavis Amono-Acquah
Re A (2019) EWHC 612 (Fam)
Re J – M ( A child) (Contact Proceedings: Balance of Harm) 2015 1 FLR 838