Is the expression ‘contact at all costs’ unhelpful?
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The Court of Appeal's judgment in Re H-N and Others has reopened the debate on the 'contact vs domestic abuse' question (not that the debate has ever closed). This discourse is, of course, important, but there is one expression that regularly crops up that I think is less than helpful.
The expression is "contact at all costs". It is used by those on the 'protection of victims of abuse' side of the debate, to denote a perceived policy of the family court to promote contact between the parent and the child no matter what, even if that puts the other parent, usually the mother (and by extension the child), at risk of (continued) abuse.
An example of the use of the expression is contained in a quotation from Lucy Hadley, Head of Policy and Campaigns, Women’s Aid Federation of England, which can be found in this news story on the Women's Aid website. Lucy used inverted commas, but these may not have been noticed by all readers.
I don't know the origin of the expression, but it has been around for some years. The earliest example I am aware of is in the title of a thesis by Dr Adrienne Barnett (as she now is), written in March 2014 (she used the same title in an article that appeared around the same time in both Child and Family Law Quarterly and Family Law). But the important point about her use of the expression is the question mark at the end.
I have not read the thesis (it is 426 pages long), but my understanding is that Dr Barnett was, in the context of the then-new 'presumption of parental involvement', merely suggesting that perhaps the pendulum had swung too far in favour of contact, rather than that 'contact at all costs' was an absolute policy of the family court.
But that is not necessarily the context in which the expression is now used. It seems to me that it is used (at least some of the time) as if it were a fact and, like so many such 'sound bites', it is also used in a disparaging way vis-à-vis the 'other side' of the argument, in this case the family court.
And this in turn leads to the most concerning aspect: that the expression is picked up by the general public and treated as fact, even if the person who used the expression did not mean it to be taken literally. This is not at all surprising: the public, often already sceptical of the family courts, sees the expression used by someone that they consider to be an expert in the field, and naturally accepts it as gospel.
And the obvious result of this is a loss of confidence in the family courts, resulting in the very thing the users of the expression will surely want to avoid: real victims of abuse not bothering to raise the issues in court.
And if I were a family judge (thankfully, I am not), then I suspect that I would be at least mildly irritated by the expression 'contact at all costs'. That has never been the position of the family court (at least in modern times) and, I'm sure, never will be - shared parenting presumption or not. To suggest that I, as a judge, am prepared to overlook serious abuse issues in order to ensure contact takes place is, quite frankly, offensive.
I am not suggesting for one moment that the family court always gets it right. Of course it doesn't, as the judgment in Re H-N confirms. There is clearly work to do to improve the system (as the 'Harm Report', to which both the Court of Appeal and Women's Aid referred, confirmed) and yes, perhaps that pendulum needs to be adjusted towards the centre. We must never be complacent.
But the expression 'contact at all costs' is too absolute. As with so many things, the reality is far more nuanced. Yes, judges do operate from the starting-point that contact with a parent is usually in the best interests of the child, and quite rightly so. But allegations of abuse, usually of course from the mother, are taken seriously, and are often taken into account in contact arrangements ordered by the courts, possibly even resulting in there being no, or at least no direct, contact.
Yes, the family court does get it wrong from time to time, both from the point of view of under-estimating the importance of abuse allegations, but also from the point of view of over-estimating them, with possible disastrous consequences for the relationship between the child and the 'absent' parent. And no matter how hard we strive to improve the system, I am sure that the court will continue to get it wrong on occasion - all we can realistically expect is to minimise how often that happens.
Meanwhile, to give the impression that the court always gets it wrong is not only wrong in itself , but also does no favours at all to the victims of abuse.