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Griffiths v Griffiths and another (Guidance on Contact Costs) [2022] EWHC 113 (Fam)
(High Court Family Division, Mrs Justice Arbuthnot, 20 August 2022)

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Guidance was provided for the payment of contact in cases where abuse has been found or admitted.

Background

In 2018 the parties separated with the mother leaving the family home with the child (D). Father had contact on an ad hoc basis. Father had various mental health difficulties which led to his hospitalisation for a time. On 9 March 2019 supervised contact commenced, by agreement, on alternative Sundays.

Further to father applying for a child arrangements order it was directed that father have contact at a contact centre for two hours each week. In August 2019 the father was paying the costs of the contact centre.

On 26 March 2020 the father applied for the costs of the contact centre to be met by the mother as he was unemployed, and he said the mother was earning a substantial salary. At the hearing on 4 May 2020, it was directed that contact costs were to be shared equally between father and mother.

A fact-finding hearing took place in November 2020 which found the allegations the mother had made against father proved. These included her rape and sexual abuse, a pattern of him controlling and behaving coercively towards her and her being physically and verbally abused by him.

A section 7 report from Cafcass dated 12 March 2021 recommended that the contact arrangements continue as D was said to have enjoyed time in a ‘safe and controlled environment’.

Grounds of Appeal

Ground 1: The judge was wrong to order that the mother, a victim of rape, share the cost of supervised contact with her rapist, the father. This was wrong in principle, against public policy and breached the mother’s and the child’s Articles 8 and 14 rights. It is wrong in law for the family courts to interpret widely section 11(7) of the Children Act 1989 to the extent that a party is directed to pay for the costs of contact.

Overlapping with Ground 1 was Ground 2: the law as presently interpreted by the family courts in permitting a rape victim to be ordered to pay a rapist’s contact costs was in breach of the mother’s Articles 8 and 14 Convention rights.

Grounds 3 and 4, not considered within this blog, dealt with the continuing contact between father and D.

Discussion

Does s.11(7) of the 1989 Act allow for the payment of contact expenses?

The relevant sections of the 1989 Act being s.1, s.8, s.11(1), s.11(2), s.11(3) and s.11(7).

Section 11 sets out the general principles to be considered by a court whenever a question of making a section 8 order arises. This section is intended to provide the court with wide discretion to enable it to give directions the court feels appropriate bearing in mind the welfare of the child is the court’s paramount consideration (s.1 1989 Act). Section 11(7) recognises that it is impossible to predict and legislate for the varied family circumstances that come before the courts.

It was found that an order for a party to pay the costs of contact comes within the wide ambit of what is permitted by s11 1989 Act.

Before a fact-finding and where abuse is not admitted

Paragraphs 25 to 27 of PD12J apply to domestic abuse before a fact-finding has taken place. The court should not make an interim child arrangements order if it has given directions for a fact-finding hearing unless it is in the interests of the child to do so ‘and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour)”.

After findings or an admission of domestic abuse

PD12J paragraphs 35 to 40 set out the factors to be taken into account when making a determination as to whether to make a child arrangement order in all cases where domestic abuse has occurred.

Should a victim of rape or abuse share payment of the costs of contact with the perpetrator?

It is very unusual and probably unique that a victim of abuse will be asked to pay for contact costs. There is a tension between a decision that it is in the best interests of the child to see the father and a situation as in this case, where the unemployed father cannot afford to pay for the whole of the costs of contact and was not paying any child maintenance to the mother. The question here is whether the victim should fund their child’s contact with the rapist.

The court could not envisage a situation where the court would order the victim to share the costs of contact but considered it impossible to give guidance which will cater for every case that comes before the family courts which must be able to do justice to all the different situations which they encounter.

Guidance

Mrs Justice Arbuthnot provided the following guidance in relation to cases where abuse has been found or admitted:

  1. There must be a very strong presumption against a victim of domestic abuse payingfor the contact of their child with the abuser [131]
  2. If, wholly exceptionally, the court has to consider this, the matters a court might want to take into account could include the following [132]:
    1. The welfare checklist including the age of the child
    2. The factors in PD12J
    3. The nature of the abuse proved or admitted, and the parties’ conduct that the court considers relevant
    4. The impact of the abuse on the caregiver with consideration as to whether any payment would give rise to financial control
    5. The extent of the relationship between the child and the abusive party
    6. The nature of the section 8 order made
    7. The parties’ financial resources
    8. The cost of the contact
    9. Whether, if the contact is in the best interests of the child, it would take place without a sharing of the costs.

Conclusion

The order directing shared costs of contact shall be set aside. If on redetermination the Judge decides that direct contact should take place, the guidance on contact costs, set out above, should be applied and the Judge determine whether the case falls within the ‘wholly exceptional’ category.

 

 

 

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