Mother Successful in Appeal for Direct Child Contact

By Tom AtkinsonPublished 9 November 2019Updated 18 August 20267 mins read4 sections

Part of: Child Custody Specialists

For many parent’s divorce and separation is often a difficult and traumatic time. Generally, contact with the non-resident parent is encouraged because the court starts from the position that parental involvement benefits the child, provided that involvement is safe and supports the child’s welfare and best interests. Contact arrangements determine when a child will spend time with one parent or the other parent.

Direct contact and child arrangements order considered in the recent case of VB v JD and others

We consider a recent case of VB v JD and others (2019). Direct contact can take different types and, for example, include daytime visits or overnight stays. This case involved endless litigation over the arrangements for children and is an example of the court process for deciding contact. Many cases offer continue unnecessary years of litigation which could be caused by the behaviour or conduct of the parents and may also be due to the legal system not being able to bring a case to an earlier conclusion.

The case of VB v JD and Others concerns a mother of a child who was aged 7 and half years. The mother appealed an order from the court which stopped all her direct child contact with her child, rather than allowing indirect contact through letters, telephone calls, or video calls via Zoom. The mother was supported by her daughter aged 17 who was the half-sister of the child concerned. The father was opposed to the mothers appeal for direct child contact to continue.

Litigation in this case has continued since 2013 until 2019 for a period of 6 years when the parents of the child separated and according to the judge hearing the appeal the relationship between both parents is non-existent. Following the initial set of proceedings both parents shared the care of their child. The turning point in this case was in 2015 when the mother and the half-sister of the child alleged that the child’s father had sexually abused the child’s half-sister.

In the early part of 2015, the judge considered the evidence put forward by the mother and the child’s half-sister. District Judge Willis found the following:

“In the light of the clear view I have formed about B’s evidence, it must follow that I dismiss the allegations against the father. I am not able to say that nothing untoward happened. It is simply that the mother has wholly failed to discharge the burden of proving what she alleges.”

The district judge also made the following important observation “It seems to me to be a reasonable inference to draw that this mother appears determined, at any cost, to ensure that A has no contact or relationship with the father.”

Following the unfounded allegations of the mother and the half-sister at a final hearing in December 2015 the judge varied the existing shared contact order and directed the child remain with her father and stepmother. This resulted in the child not living with the mother or having any staying contact with the mother. All contact was to be supervised.

Mother makes an application for indirect contact following a previous no direct child contact order

In June 2016 the mother made an application to the court for the courts to revisit the issue of the contact which was heard in January 2017. The court then provided for fortnightly contact during the school terms for the mother and the child’s half-sister. It also included by agreement an order under section 91(14) of the Children Act 1989 barring further applications for the next twelve months without permission. This order unfortunately did not last very long.

In May 2017 the father made an application to the court for permission to start further proceedings seeking a prohibited steps order against the mother and the half-sister and for variation of the existing child arrangements order. The main basis for the application by the father was the child’s half-sister contacting the child’s school, the police and the Children’s Services expressing her concerns about the child living with the father and her being sexually abused, raising safeguarding concerns in difficult family circumstances and requiring the court to assess risk and possible harm. The father also expressed that following previous contact the child would return distressed or hyperactive. Also, he said the school had noticed a significant change in her behaviour and demeanour since the new arrangements had come into force.

During the matters being determined in February 2018 the mother had maintained her contact with the child. The judge following considering all evidence before the court ordered no direct child contact by the mother the half-sister with the child and only indirect contact by way of monthly letters, which may be monitored where there are safeguarding concerns. All contact was to be supervised as a short term measure where there is a potential risk of harm, usually in a controlled one-to-one observed setting at a contact centre or supervised contact centres, and such services may facilitate both supervised contact and supported contact. The judge also made a series of prohibited steps orders and imposed a three-year bar on further applications under section 91(14) of the Children Act 1989 without the court’s approval.

A Mother appeals following a no direct child contact order

The mother appealed the decision of no direct child contact, and the appeal concerned whether the earlier court order went too far and whether less restrictive options should have been considered first; the appeal was allowed by Mr Justice Cohen for the following reasons:

1. That the judge had not considered the possibility of there being very limited, as opposed to no direct child contact, including limited face to face contact and whether supervised contact could be used as a temporary step before wider face to face.
2. There has been no separate consideration given to the position of the mother and the half-sister. The father accepts that there is a difference in their positions, and he is understandably far more wary of what the half-sister might do than what the mother might do
3. The events leading to the fathers application were all outside contact and stopping contact would not, in itself, mean that those events do not recur.
4. That to remove the mother from the child’s physical presence for three years, a child then aged 6, so half the child’s lifetime, is a very long time.

Only in exceptional circumstances would the court refuse all contact if some safe form of relationship could still be maintained, because the child’s wishes and feelings are relevant but not decisive.

The judge also noted that the child’s previous contact with the mother was going well and that in circumstances where contact is enjoyed by the child, greater thought needs to be given to the instruction of a child psychiatrist. The court must decide such cases by reference to the child’s welfare and best interests, taking account of the child’s wishes and feelings. In conclusion the judge stated “To terminate a child’s relationship with the mother and sister is very draconian and it seems to me that this was a case where all available alternatives had not been fully explored”.

Mother’s successful appeal against a no direct child contact order

Whilst allowing the appeal the judge had a warning for the mother: “I find it hard to envisage contact for the foreseeable future occur, if it does at all, without significant support and careful communication arrangements. The mother and the half-sister have to prove themselves. Further complaints to the Social Services or police are likely to lead to a longer cessation of any contact at all”.

The judge had also hoped that the father would accept the benefits of some form of contact between the mother and the child. Where there have been long periods without face-to-face contact, indirect contact such as telephone calls or video calls may help rebuild the relationship, especially for older children.

If you have your contact stopped or wish to discuss any aspects of child contact arrange a consultation with one of our family law specialists today by calling 0330 094 5880 or let us call you back.

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