The suitability of ‘Indirect Contact’ Orders

Indirect Contact Orders are formally known as Child Arrangement Orders in broad terms. We use the term Indirect Contact Order in this article for ease of reference.

A recent case - Re K (Children) [2016] EWCA Civ 99 in the Court of Appeal decided that a father had been denied direct contact with his children because of the lower Court’s failure to consider the range of alternatives available before rejecting his application for direct contact.

Indirect Contact is a form of a Child Arrangements Order which usually sets out that the ‘non-resident’ parent of the children will have contact with them in the form of letters, emails, cards etc. It is often used in circumstances for example where there have been long periods of time between the parent seeing the children, or where there have been allegations and/or findings of domestic violence; which suggests that the child will experience harm if ‘direct’ contact takes place.

In many cases Indirect Contact will be a short-term measure with a view to establishing more direct contact in the longer term. Unfortunately for some parents however, that is not the case and Indirect Contact will be the only Child Arrangements Order made.

For many parents this is can be a cruel and heart-breaking experience; there has been an acknowledgement from the Court that some relationships should take place between the parent and the children, but the decision is that this should not be in the form of face-to-face visits.

It may seem to some parents that such an Order is also contrary to the recent change in the law brought about by the Children and Families Act 2014 which sets out that the Court should presume that the involvement of both parents in the life of a child will further the child’s welfare. This change was dressed up in some media to suggest that each separated parent will be involved ‘50/50’ in their child’s life.

The key factor for parents to recognise is that the new law is not too dissimilar to the old law (prior to October 2014) in that the presumption of involvement will only stand "provided that the parent concerned can be involved in a way that does not put the child at risk of suffering harm."

The Court will therefore still be required to have as the paramount factor in its decision making the welfare of the children, as set out in section 1(3) of the Children Act 1989. Paragraph 1(3)(e) of that section makes specific mention of "any harm which he has suffered or is at risk of suffering."

In the case above, the Court of Appeal noted that the correct approach in cases involving domestic violence is that: “The emphasis throughout is on ensuring the safety and security of the children in question balanced against the assumption that the involvement of a parent in a child's life will further his or her welfare so long as the child or other parent is not put at risk”

On reflection therefore, parents in any application to the Court concerning child arrangements should pay heed to the many Orders available to the Court, including direct, indirect, or even no contact orders (as it sounds, where no contact is ordered between the parent and child). The change in law does not necessarily mean that a parent will automatically spend time with their child.

In the case of Re K (Children) [2016] EWCA Civ 99 as referred to above, a chink of sunlight was cast through the clouds to many parents in this predicament. The Court of Appeal judged that the lower Court had not done enough to assess whether any alternatives were available to the father, other than an Indirect Contact Order. It does appear in this case that the Court had just ‘given up’.

Lady Justice King giving the lead judgement made a number of powerful statements, following earlier cases, which will instil confidence in separated parents across the country:

“Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child”

“Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative”.

Her final judgement was quite damning on the lower Court, in that it "failed to grapple with all the available alternatives before abandoning hope of achieving contact".

All cases involving domestic violence, not least those concerning children, are complex and highly sensitive. This recent case demonstrates however that provided that certain factors and safeguards are in place, all is not lost for those parents facing difficulties in seeking to establish a sustained relationship with their children.

For more information on any of the issues above, give one of our Family Law experts a call on 0113 201 4902 for a free, initial consultation or email family.law@emsleys.co.uk.