The Interplay of The Welfare Checklist with Practice Direction 12J
Children’s wishes shouldn’t always take priority
Scouring Family Law Week for interesting and relevant topics or cases, I came across M (Children: Contact in Prison) [2024] EWCA Civ 1104, in which Lord Justice Jackson reversed the decision of Mrs Justice Lieven to allow contact with a father, who had been convicted, and imprisoned for raping the mother. Whilst the judgment is short, it addresses the significant interplay in respect of considerations under the welfare checklist (S1(3) Children Act 1989) with FPR Practice Direction 12J (FPR 2010) and warns against prioritising the wishes of the children over the emotional impact on the parent who is the victim of domestic abuse.
The appeal came before Lord Justice Lewison, Lord Justice Peter Jackson and Lady Justice Falk on 24th September 2024.
Background
The subject children were 12 and 10 years old. The children reside with the mother. She is a serving police officer. The father, was a police officer until his conviction for rape of the mother. The parents were married, but had separated, with the mother and children leaving the family home. The father embarked on a new relationship with another police officer, Ms V. The mother and the children subsequently returned to the family home for a period, during which the father twice raped the mother in August 2019.
The children were subject to extensive proceedings concerning contact with the father. The fact that the children have a strong relationship with the father and his partner Ms V, including her family does not appear to be disputed.
The father was convicted in April 2024, for two offences of rape. In June 2024, he was sentenced to 12 years’ imprisonment. The father does not accept the convictions and indicated that he is seeking to bring an appeal. Ms V supported the father’s position. It was noted by the sentencing judge that the father has no insight into his offending behaviour.
The father was granted bail after the verdict and supervised contact was proposed, but he did not accept this.
The children were seen by the Guardian and the children’s solicitor on 24th June 2024 at school. They were described by school as doing well. The children had expressed wanting to see their father. They also showed a limited understanding as to the reasons why the father was incarcerated and what they understood prison to be like.
Parties’ positions
Both parties were unrepresented in the hearing before Mrs Justice Lieven and at the appeal hearing.
The father sought orders which would allow him to have telephone and video contact twice a week, and direct contact once a month, with Ms V facilitating the visits to the prison. The father also invited the court to order some contact between the children, Ms V and her family.
The mother advanced a position supporting only indirect contact, writing only, in light of the family circumstances and the father’s and Ms V’s position in relation to the offences.
The Guardian made recommendations that contact should be limited to indirect written form only. She did not consider it appropriate for the mother to be ordered to take the children to see the father, being someone who was guilty if significant offences against her. The Guardian considered the children’s views to be of utmost importance, but the impact on the mother as the victim and the primary carer could not be disregarded. The Guardian did not support contact with the father or Ms V being unsupervised due to the risk of conflicting narratives being given to the children about the offences or about their mother. The Guardian concluded that even just limiting the contact to twice-weekly phone calls would impact on the children’s ability to get on with their daily lives and would leave the mother with a sense of continued control by the father. The Guardian did acknowledge that her recommendations did not concur with the wishes of the children. The Guardian and the children’s solicitor did offer to facilitate a one-off visit for the children to see the father in prison if such was directed by the court, but they did not positively advocate for it.
Decision of Mrs Justice Lieven
The Judge made a final order following a remote hearing, which lasted about one hour and no oral evidence was heard. The order required the mother to make the children available to spend time with the father as follows:
For a one-off visit in prison facilitated and supported by the Guardian the the children’s solicitor on 13th August 2024 for up to 2 hours;
For visits to prison three times a year for four hours, accompanied by Ms V, with the children being handed over to her at a public car park; and
For telephone contact once a month for 30 minutes.
Section 91(14) order for 12 months, the Guardian being given liberty to apply in relation to subsequent visits if the one off visit proved “disastrous”.
On appeal, a note of the judgement was considered as the transcript had not materialised for the purpose of the appeal hearing. Whilst acknowledging that the note of judgment may not fully reflect what was said by the Judge, they noted several passages which reflected where she had appeared to place emphasis in reaching her decision. These passages highlighted the need “to listen to the voice of the child”, “they actively want contact”, that she “would be doing the children a huge disservice” if no contact was ordered. The Judge further said that she was “concerned about [the court] not being a party to coercive and controlling behaviours”. The Judge indicated to the mother that she understood why she did not trust Ms V. The Judge confirmed to the parents that she is one of those judges who likes to listen to the voice of the children. The Judge further went on to say that the mother was being unrealistic, she does not know what prison is like, that a 12 year old will not live in a bubble.
Submissions on appeal
The mother was granted permission to appeal. In summary, the basis of her grounds of appeal were that the Judge had failed to take into account the recommendations of CAFCASS, there had been no proper consideration on the children of the impact and risks of seeing their father in prison, there was an absence of thought around how telephone contact could properly be supervised, without risking emotional harm to the children from the father and Ms V and, significantly (in my view), the Judge gave no regard for FPR PD12J.
The Guardian supported the appeal. The father argued that the Judge’s approach was sound and he was grateful to her for standing up for what the children want. The father further argued that the mother’s approach was unrealistic, the Guardian had been biased in not taking account of the extent of pre-conviction contact and of the harm caused by the mother in seeking to restrict contact now.
Conclusion
In assessing matters, at paragraph 17 Lord Justice Jackson concluded the four relevant welfare checklist elements for the Judge were:
The ascertainable wishes and feelings of the children, considered in the light of their age and understanding.
Their emotional needs.
Any emotional harm that they are at risk of suffering.
How capable each parent, and any other person in relation to whom the court considers the question to be relevant, was of meeting their needs.
At paragraph 18, he went on to say, in this case, the checklist is supplemented by PD12J. Particular regard was given to paragraphs 36 and 37, the court being required to apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any risk assessment obtained and the need for the court to consider the conduct of both parents towards each other and the impact of it. In particular:
“(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.”
At paragraph 20, Lord Justice Jackson concluded that whilst the Judge was right to consider the case to be a difficult one, she provided very little to support her final decision:
“The Judge did not take into account or adequately evaluate:
(1) The fact that the father has been convicted of domestic abuse of the most harmful kind, a finding which binds the Family Court.
(2) The impact of the rapes and of the order on the mother; as required by PD12J.
(3) The significance of the father’s unrepentant attitude since conviction as a measure of his ability, and that of M V, to meet the children’s needs.
(4) The weight that was properly due to the children’s wishes in light of their limited understanding of the family situation and their apparently settled state.
(5) The balance between their need for contact with their father and their need for continuity of security by their mother.
(6) The potential for unsupervised contact to unsettle the children and harm their relationship with their mother by exposing them to conflicting narratives.
(7) The appropriateness of Ms V being the facilitator of contact; given her identity of views with the father.
(8) The practicality of telephone contact being supervised.
(9) The justification within the evidence for rejecting the expert assessment of the Guardian.”
At paragraph 21, Lord Justice Jackson concluded that the Judge should have had regard to the above matters “and any others arising under the welfare checklist and PD12J. That did not happen, with the gravity of the father’s offending being overlooked, and priority being given to a limited assessment of the children’s wishes and the Judge’s own perception of their need for contact.”
The mother’s appeal was allowed. The decision about contact is to be retaken, the case being remitted to the designated family judge for further directions for a final hearing.
So what are my key take-aways / observations:
(i) It is crucial that those of us representing parents and children are well-versed on the significant interplay of the welfare checklist with PD12J in cases of domestic abuse and ensuring a thorough analysis is undertaken of the relevant factors.
(ii) The importance of expert evidence and ensuring that where a court seeks to move away from professional recommendations, that a thorough analysis and robust justification is provided.
(ii) In managing client expectations, it is important that they are assisted to understand that whilst the wishes and feelings of the children is a relevant factor for the court, it won’t always be the determining factor.
(iii) I wonder whether the outcome might have been different if the trial judge had heard some oral evidence or if the parents had had the benefit of legal representation at the hearing.
Written by Consultant Barrister, Lyana Chan.
Law is correct as of 29th January 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
