Z v Z: Imprisoned father granted indirect contact with children

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It must be a not uncommon occurrence, but from my recollection the issue of contact with an incarcerated parent rarely arises in reported cases. The decision of Mr Justice MacDonald in Z v Z is therefore of some significance.

The judgment is quite lengthy and in order to summarise it I am going to concentrate on certain aspects and ignore, or at least skim over, others. In particular the case raises a substantial issue as to whether the prison governor may refuse to comply with a contact order made by the Family Court - I will not be detailing that, concentrating instead on the 'children issue' - i.e. the issue of whether contact should take place at all.

And in this case we are referring only to indirect contact, that being the issue for the court to determine.

OK, so to the background:

1. The case concerns two children, a girl now aged 16 and a boy now aged 14.

2. The father was arrested in 2011, and taken from the family home whilst the children were at school. They have not had any contact with him since. They were initially told that he had gone abroad to work, but later found out the truth.

3. In 2012 the father was convicted of a number of very serious sexual offences involving children. He was given an extended sentence of 26 years, comprising 20 years imprisonment with an extended 6 year licence. His eligibility date for parole is 2 April 2025, his conditional release date is 2 December 2031 and his licence expiry and sentence expiry date is 1 December 2037.

4. The father was also made the subject of a Sexual Offences Protection Order which prohibits him from have any contact with any child of the family under the age of 18 without the approval of any supervising local authority or further order.

5. The father continues to profess his innocence of the charges of which he was convicted, and is still seeking to appeal his conviction.

6. The mother also believes the father to be innocent.

Skipping ahead for the sake of brevity, the father issued his contact application in June 2020, seeking both direct and indirect contact. Indirect contact was supported by both the mother and by the Children's Guardian, the latter primarily recommending indirect contact because both children had expressed a wish to have contact with their father.

The contact recommended by the Guardian and agreed by all parties comprised two-way indirect contact by way of letters between the children and their father three times per year at Easter, during the summer and at Christmas, with that indirect contact to be supervised, and any letter exchange to be suspended if it is considered to be inappropriate.

So to the judgment. MacDonald J indicated at the outset that he was satisfied that it was in the best interests to make the child arrangements order that all parties agreed. His reasons for so deciding included the following:

1. Both of the children expressed clear views that they wished to have contact with their father, and both demonstrated some understanding of the offences for which their father was convicted, and of why he is in prison. Both were also able to articulate, in broad terms, why their father presents a risk. Their understanding may not be entirely complete, but was sufficient, having regard to the limited contact being contemplated.

2. Having regard to the wishes and feelings they have articulated and to the stage each child has reached in their development, both children have an emotional need for some contact with their father.

3. With respect to each of the children's characteristics, two matters were particularly relevant: their ages and the fact that they both appeared to be articulate, intelligent and well-rounded children. Contact now could be regulated, rather than left to the children when they reached majority.

4. Lastly there was the important issue of the risk of harm. MacDonald J accepted of course that any contact carried a risk, but felt that it was mitigated by certain matters, including that: there was no evidence that either parent has sought to engineer clandestine contact between the children and the father over the past decade; there had been no breaches of the Sexual Offences Prevention Order; each of the children had undertaken work with a social worker with respect to keeping safe, and had had detailed discussions in this regard with their Children's Guardian; and the contact will be the subject of prior inspection and approval by an independent social work organisation before it is the subject of exchange between the father and the children.

"In all the circumstances," said MacDonald J, "having regard to [the children's] best interests as my paramount consideration and accepting the difficult and emotive context in which the decision falls to be taken, I am satisfied that it is in the best interests of both [children] to have limited, indirect contact with their father on a closely and professionally supervised basis."