The facts: The father and mother had a relationship together over a period of some four years. There are 3 children of the relationship: T, who is now aged 8, J now aged 12 and K now aged 10.
On 3rd February 2005 the father stabbed the mother, who died from her injuries. The father was charged with the mother's murder. On 16th August 2005 he was convicted of manslaughter on the grounds of diminished responsibility. He was made the subject of orders under sections 37 and 41 Mental Health Act 2003.
Immediately following the mother's murder all three children were placed in local authority foster care. The mother's sister ('MS') and her then partner put themselves forward as long-term carers for all three children, and the children were placed in their care. They then sought special guardianship orders, which were made on 3rd September 2007. The order recorded an agreement that the father could have indirect contact with all three children by way of cards sent three times a year, and provided that face to face contact between the father and the children should be at the discretion of the MS. The father has not had face to face contact with T since he was first remanded in custody.
I will not go into the detail of the aftermath of the murder and the father's mental health; this is set out fully in the judgment.
On 1st May 2010 the father issued an application for contact with T. The application was opposed by MS, and by T's guardian ad litem, the National Youth Advocacy Service ('NYAS'). MS made a cross-application for an order under section 91(14) Children Act 1989 preventing the father from making any further applications in respect of T without the leave of the court.
Held: The judge (who is not named in the report) began his/her discussion (at paragraph 60) by making it clear that the approach of the court remains the same as in any other application by a parent for contact with his child:
"Whatever may be the twenty-first century equivalent to the proverbial man on the Clapham omnibus, he or she would likely be very surprised to learn that a parent who has murdered the other parent should nonetheless be entitled to make an application for contact with his child and even more surprised to be told that the court will not dismiss that application out of hand. However, I am satisfied that that is the position in law. ... There is no presumption that when one parent murders the other the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, murder of itself cannot constitute a bar to contact. It is one factor – albeit a profoundly significant factor – in the difficult and delicate balancing exercise of discretion. That exercise must begin with a welfare checklist analysis."
The judge then considered the checklist factors and concluded (at paragraph 70) that: "the outcome of the welfare checklist analysis leaves me in no doubt that there should be no contact of any kind between [the father] and T."
The judge then moved on to consider the s.91(14) application. The application was not opposed by the father, but there remained the issue of the length of time for which the order should remain in force. The father, supported by the NYAS caseworker, contended that it should last until T's thirteenth birthday. MS contended that it should last until T's 16th birthday. The judge came to the conclusion (at paragraph 72) that in the exceptional circumstances of the case the longer period was more appropriate.
The judge then considered the interface between these proceedings and those before the Mental Health Tribunal, which had imposed an exclusion zone upon the father, preventing him from approaching within a 25 mile radius of MS's home. The judge considered (at paragraph 84) that in the exceptional circumstances of the case such an exclusion zone order was both proportionate and reasonable.
Accordingly, the court made the following orders (paragraph 86): that the father's contact application be dismissed; that there shall be no contact between the father and T; that pursuant to s.91(14) Children Act 1989 the father shall not, without the leave of the court, make any further application to the court for an order under s.8 Children Act in respect of T before 21st November 2018; and that there shall be an injunction mirroring the conditions imposed by the Mental Health Tribunal, that injunction to remain in force until further order.
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UPDATE: The report has now been amended, to include the identity of the judge, His Honour Judge Clifford Bellamy.