M (Children): Refusing contact is draconian

Lady Justice Macur DBE
A brief look at M (Children) [2013] EWCA Civ 1147, an appeal by a father against an order refusing his application for contact with his three sons, aged 7, 5 and 3 respectively.

The mother had been the victim of significant domestic violence over a prolonged period. She 'escaped' the family home with the three boys in December 2011, taking up accommodation in a women's refuge. The father has not seen the boys since. He applied for contact in January 2012.

The application was eventually heard in April 2013, when the judge found that the mother was terrified of the father and stated that the father had failed to persuade her "that he was not going to destabilise the family by continuing his violent, threatening, minimising behaviours, upsetting the children and harming them emotionally". She therefore refused the application. The father appealed.

Giving the leading judgment on the appeal Lady Justice Macur DBE stated (at paragraph 13):
"Despite the judge's dire assessment of the father's character and vulnerability of the mother, which I accept as indicated, it nevertheless remains the case that there must be careful scrutiny of the outcome reached. The judge's order is draconian. The prospect of the children having any relationship with their father during their minority will diminish increasingly with the passage of time."
She continued (at paragraph 14):
"The welfare of the child is paramount. A child's continuing relationship with a non residential parent is highly desirable and contact should not be denied unless the child's welfare demands it. Domestic violence is not, in itself, a bar to direct contact, but must be assessed in the circumstances as a whole."
Notwithstanding the judge's conclusions about the parents, she concluded that the appeal should succeed on the ground that the judge had failed to adequately address why the children's safety and the management of the mother's anxieties could not be achieved under any circumstances of supervised contact.

As to the human rights aspect she stated (at paragraph 24):
"...the order ... can only be lawful within the meaning of Art 8(2) of the Convention if the order for no direct contact is 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."
She therefore allowed the appeal and remitted the case for re-hearing "with a view to an informed investigation of any supervised contact resources appropriate to the particular circumstances of this case".

Giving a concurring judgment Lord Justice Underhill summarised the appeal:
"I also agree that [the judge's findings about the parents] would not justify the drastic order which she made unless she was satisfied that any form of contact – however carefully controlled and supervised – would cause serious damage to the children, whether directly or indirectly through its impact on the mother."
Lord Justice Longmore agreed with both judgments.