M (Children)  EWCA Civ 1147, 20 September 2013 – read judgement
The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under Article 8.
The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge. She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father. When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother.
The Court of Appeal allowed the appeal.
Reasoning behind the decision
The judge’s assessment of the parents’ characters, past behaviour and present attitudes were entirely dependent upon finding primary fact, interpreting and drawing reasonable inference from the same. Her conclusions were justified and unassailable on appeal. It was “exceptionally rare” for an appellate court to contemplate reversing the evaluation of an issue which depends upon primary facts. Nevertheless, there had to be careful scrutiny of the outcome reached. Her order had been draconian, and therefore disproportionate under Article 8(2) of the European Convention of Human Rights. The child’s rights take priority above those of his parents (see YC v United Kingdom (2012) 55 EHRR 967 at para 134:
family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family
An order denying contact could only be lawful within the meaning of Article 8(2) of the Convention if it was necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm. In order to reach that conclusion the court must consider and discard all reasonable and available avenues which may otherwise promote the boys rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father. In this case there had been insufficient examination of whether the risks could be sufficiently guarded against by careful and professional arrangements for setting up the contact and for close supervision during it.
The prospect of the children having any relationship with a non-resident parent was highly desirable and contact should not be denied unless the child’s welfare demanded it. Domestic violence was not in itself, a bar to direct contact, but had to be assessed in the circumstances as a whole (L (A Child) (Contact: Domestic violence), Re  WLR 339). The judge had failed adequately to address why the children’s safety and the management of the mother’s anxieties could not be achieved under any circumstances of supervision.
The case was remitted to the judge for rehearing on the issue of availability of adequate resources, including accommodation and personnel, to supervise contact strictly and securely between the father and the three boys.
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