19 September 2013, by Taylor King Family Law Solicitors
The Court of Appeal in M (Children)  EWCA Civ 1147 took the unusual step over overturning an order for no contact.
A father of three appealed against an order refusing his application for contact. He had a history of criminal convictions related to violent behaviour, including causing grievous bodily harm with intent, and the case had involved significant domestic violence. The mother had eventually left the family home and moved to a refuge with the three sons who had often witnessed their mother’s abuse.
Having heard the evidence the judge was in no doubt of the mother’s truthfulness or her real fear for her personal safety. She found that the father had minimised his behaviour and had not learned anything from courses he attended aimed at addressing his violent behaviour. She held that the father’s continuing behaviour was likely to destabilise the children’s home and security.
The Court of Appeal noted that it was exceptionally rare for an appellate court to think about reversing a decision which was based on primary facts.
On appeal, Macur LJ said that the judge’s conclusions were justified and unassailable on appeal but nevertheless careful scrutiny of the outcome was required because such an order was draconian and disproportionate under Article 8 of the European Convention of Human Rights (right to respect for private and family life).
Macur LJ noted that domestic violence, in itself, was not a bar to contact, but should be assessed in the circumstances as a whole.
She concluded that the appeal should succeed on the basis that the judge had failed to consider how the children’s safety and the management of the mother’s anxieties could be achieved under any circumstances of supervision. This was particularly notable given that the judge had stated that “it would be highly desirable if contact could be achieved without undermining other aspects of [the children’s] welfare”.
She stated that in order to reach the conclusion that there should be no contact the court must have considered all reasonable and available avenues which promote the children’s right to family life.