Denial of contact with father too “draconian” – Court of Appeal

26 September 2013 by

Father-and-child-holding--006M (Children) [2013] 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 [2001] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

2 comments


  1. carol says:

    Is it me,or the laws of fathers going mad. HOW can a father who has never put a foot wrong having been a massive part in his daughters life for over 4yrs suddenly be told by his ex partner that he is no longer aloud to be in her life, all the ex partners are using these poor children as a porn. For gods sake, WAKE UP. The strange thing is, he is aloud to foster other peoples children,what more proof does one need,that the lies his ex partner has told,are just that.

  2. truthaholics says:

    Wow – about time such draconian doctrines were overhauled across the board.
    Glad to see LJ MacFarlane’s not alone in downsizing disproportionality post-Re:B;
    A breath of fresh air!!!

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: