M (Children: Contact In Prison)

Factual and Procedural Background

This appeal arises from an order made by Judge Lieven on 2 July 2024 concerning limited contact between two children aged 12 and 10 and their imprisoned father. The parents were formerly married but separated following the father's conviction for serious offences. The mother and children initially left the family home but later returned, during which the father committed two rapes against the mother in August 2019. The father was convicted of these offences in April 2024 and sentenced to 12 years' imprisonment in June 2024. He denies the convictions and is appealing. Prior to imprisonment, supervised contact was offered but not accepted by the father, resulting in no contact for several months.

Extensive Family Court proceedings have addressed the father's contact with the children, who maintain a strong relationship with him and know his current partner, Ms V. The mother, a serving police officer, opposed contact beyond written communication due to the history and risks involved. The Guardian recommended written contact only, citing concerns about the mother's welfare and the potential for unsupervised contact to expose the children to inappropriate information. The Family Court judge ordered a limited contact regime including a one-off prison visit, three annual prison visits accompanied by Ms V, and monthly telephone contact.

The mother appealed the order, challenging the judge's failure to adequately consider the risks to the children and the mother, and the impact of the father's offences. The appeal was allowed, the order set aside, and the matter remitted for reconsideration by the Family Court.

Legal Issues Presented

1. Whether the Family Court judge properly applied the welfare checklist and Practice Direction 12J (PD12J) concerning domestic abuse in making the contact order.
2. Whether the judge adequately considered the impact of the father's convictions and attitude on the mother and children when determining contact arrangements.
3. Whether the judge gave appropriate weight to the children's wishes and feelings in the context of their limited understanding and settled state.
4. Whether the judge erred in permitting unsupervised contact facilitated by the father's partner, given her alignment with the father's views and the history of abuse.
5. Whether the judge properly balanced the children's need for contact with their father against their need for continuity of secure care by their mother.

Arguments of the Parties

Appellant's (Mother's) Arguments

• The judge failed to follow the Guardian's recommendation for written contact only, which was based on the risk of the father and Ms V undermining the mother.
• The judge did not consider the absence of distress in the children from lack of contact and the risks posed by visits to a sex offenders' prison.
• Telephone contact cannot be adequately supervised, risking emotional harm from the father and Ms V who deny the offences.
• The judge neglected the requirement under PD12J to consider harm to the mother as a victim of domestic abuse, who is the sole carer.
• The judge failed to recognize the father's manipulative and abusive behaviour, exposing the children to further harm.
• The order prevents the family from moving on with their lives.

Guardian's Arguments

• The welfare interests of the children support written contact only, avoiding regular prison visits or telephone contact.
• The judge did not refer to the welfare checklist or PD12J and failed to consider the impact of the father's offences and the order on the mother.
• The judge gave undue weight to the children's wishes without considering their limited understanding or the impact of exposure to conflicting narratives.
• There was no evidence that absence of face-to-face contact was harmful enough to outweigh the risks identified.
• The judge did not explain why the Guardian’s expert advice was rejected.

Respondent's (Father's) Arguments

• The judge’s approach was sound and supported the children's wishes for contact.
• The father denies causing harm and is appealing his convictions.
• The father and Ms V do not intend to expose the children to their views on the offences.
• The mother’s approach is unrealistic and the Guardian is biased in failing to consider pre-conviction contact and harm caused by the mother’s restrictions.
• If a one-off visit occurs, it should be supervised by Ms V rather than the Guardian and solicitor.

Appellant's (Mother's) Reply

• Supported the Guardian’s submissions and rejected the father's criticisms.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court identified four relevant welfare checklist elements: the ascertainable wishes and feelings of the children considered in light of their age and understanding; their emotional needs; any emotional harm they risk suffering; and the capability of each parent and relevant persons to meet those needs. The court emphasized that PD12J supplements the checklist by requiring consideration of domestic abuse, including harm to the parent with care and the child, and the conduct of the parents towards each other, especially regarding potential future abuse.

The court found that the Family Court judge erred by giving insufficient weight to the father's conviction for serious domestic abuse offences and the impact on the mother. The judge failed to properly evaluate the father’s unrepentant attitude and its implications for meeting the children's needs, the limited understanding and settled state of the children, and the risks posed by unsupervised contact and contact facilitated by Ms V. The judge also did not adequately consider the Guardian’s expert recommendations or apply the welfare checklist and PD12J rigorously.

As a result, the court concluded that the judge’s order was flawed, prioritizing the children’s expressed wishes without sufficient regard to other welfare considerations and risks. The appeal was therefore allowed, and the matter remitted for a fresh decision considering all relevant factors.

Holding and Implications

The appeal is allowed.

The Family Court order of 2 July 2024 is set aside in part, specifically paragraphs 1 and 2 relating to contact arrangements. The issue of contact between the children, the father, and Ms V is remitted to the Designated Family Judge for directions towards a final hearing.

The Guardian is directed to prepare relevant documents and position statements for the directions hearing. Until a final order is made, contact is to proceed only in accordance with directions from the Family Court.

This decision does not establish new precedent but emphasizes the necessity for Family Courts to rigorously apply the welfare checklist and PD12J in cases involving domestic abuse, carefully balancing children's wishes against risks to their emotional and physical safety and the welfare of the parent with care.