First, a warning: this blog discusses the abuse of children. We’re writing it because we know that every parent shares a fear that something bad will happen to their children, and at the top of the list, for most parents, is sexual abuse. One of the very worst things that could happen, perhaps, would be to fall in love and have a child with someone, then find out they were an abuser. It would be a natural instinct to do everything you could to keep your child safe, and you would probably feel that keeping them away from the abuser would be the right thing to do.
What if he/she wanted contact with their child, and asked the court to order it? Would the court support you in wanting to keep your child away from their other parent?
This was the situation that faced the mother in a recent case heard in the High Court, after the father was convicted of a sexual offence against another child. It sheds light on how the family court approaches issues dispassionately and with a focus on the welfare of the child, and aims to strike the right balance in the best interests of the child. The case was heard by the President of the Family Division, the family court’s leading judge.
The little boy in question was born in 2007. His father pleaded guilty to sexual activity with a 12-year old relative when the son was 2 years old; the parents separated. The father served his penalty and the mother moved away with the son. After she had petitioned for divorce, the father applied for an order for contact with his son, who was by then about 3 ½, and disclosure of the son’s whereabouts. The court ordered reports to determine the level of risk that the father posed to the little boy as part of the process of collecting evidence.
In late 2012, less than 4 weeks after the end of the father’s community rehabilitation order for his offence expired, and just before the final hearing of the father’s application for contact with his son, he was arrested again for a similar offence against a 16-year-old boy who was also known to him. He was imprisoned and the final hearing was vacated.
Early in 2013, the mother cross-applied for an order that the father would not be allowed to make any further applications about his son (called a ‘section 91(14) order’ after the relevant section of the Children Act 1989). The final hearing of both applications took until October 2015 to get to court because the father had significant problems arranging funding for legal representation. By this stage the 8 year old son had not seen his father since he was about 2, and the mother had told the child very little about him other than that they didn’t live together because they fought. There were allegations that the father or his associates had threatened the mother; her fear of him, for herself and for her son, was held to be deep-seated and genuine.
The court considered expert reports that suggested the father had not addressed his offending behaviour, that the mother’s fear would impact adversely on the child if the father were in any way reintroduced, that the continued secrecy of her address could not be guaranteed, and that the father’s victim profile would include the son. The court assessed the father’s evidence as follows: “He came over as self-pitying, unable really to accept and understand what he had done and the implications, and unconvincing in trying to explain why he had done so little either to seek appropriate help, or to address [the suggestions made by the independent child protection reporter], or, indeed, to attempt even the most basic indirect contact during any of the periods in the litigation when he was represented… Astonishingly he persisted in implying that the mother was in part responsible for his criminal behaviour inasmuch as she was unable or unwilling to meet his sexual demands”.
The judge said, “Plainly the order the mother seeks is most unusual; indeed, it lies at the very extremities of the court’s powers. Almost always there should be some contact between child and parent. It will only be in a rare and exceptional case that the court will agree that there should be none. This, in my judgment, is such a case…. In my judgment, any form of contact, direct or indirect, will require – now and well into the future – to be supervised or monitored by appropriately skilled professionals, alert to the kind of dangers that a convicted sex offender like the father may pose even to his own son.”
The court found that no practical or safe method for contact between father and son had been identified, so the father’s application for contact (technically, a child arrangements order) was dismissed. The court also, interestingly, dismissed the mother’s application for an order to prohibit further court applications, on the grounds that there was no indication of its usefulness in these circumstances: the father had not made repeated applications, and there was as yet no need for this “weapon of last resort”. He reminded the court, however, of its jurisdiction to dismiss summarily applications for child arrangement orders that lack merit.
These cases are rare. The court is carefully focused on the welfare of the child, as it should be, even as it tries to promote the retention of familial bonds wherever safe to do so. If you have any queries on this blog, or wish to make an appointment to talk over any family law matter, do give Tricia, Adam, Simon, Sue or Gail a call on 01223 443333.