It is not uncommon for parents, following separation, to experience difficulties agreeing the exact care arrangements in relation for their children. It might be the case that with help from professional advisors, or through mediation, they are able to bridge the gap between them. However, there are cases where, because of the particular set of circumstances that the parties are in, they will not be able to come to an agreement without an application to the court. It might be that the parties fundamentally do not agree what arrangements are in the best interests of the child. It is almost certain that the court will need to become involved where one party’s position is that the children should not spend any time with the other parent in person and are seeking what is sometimes referred to as a no contact order.
No contact orders are not frequently made, and are generally a last resort. Whenever the court considers any application made in relation to a child it must determine what is in the best interests of the child. There is a presumption in the Children Act 1989 that, unless the contrary is shown, that the involvement of both parents in a child’s life with further their welfare. ‘Involvement’ is defined as involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
Restricting a parent being involved in a child’s life is probably the most serious order that a court can make and it will not make a no contact order so lightly. However, there will be circumstances where there is no other option and the presumption of direct involvement is rebutted by it being demonstrated that the other parent cannot be involved in the child’s life without there being a risk of the child suffering harm.
We consider below some of the circumstances when a court might consider making a no contact order. These all relate to private law proceedings (i.e. disputes between the child’s parents) rather than public law proceedings (i.e. the state/social services making an application to take the child into care).
Domestic Violence or Abuse
Serious domestic violence or abuse is perhaps the most common reason for the court considering that a no contact order is appropriate. Domestic violence and abuse is harmful to children, and/or puts them at risk of harm, whether they are subjected to violence or abuse, they witness one of their parent being violence or abusive to the other parent or live in a house where violence or abuse is perpetrated.
The court is obliged, where domestic abuse is raised by one or both of the parties, to:
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identify at the earliest opportunity, the factual and welfare issues involved;
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consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
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give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; and
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ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm.
Interim care arrangements
Where allegations of domestic abuse have been made, the court must be satisfied that any interim contact (i.e. contact ordered during the course of the proceedings, before any final determination of what the appropriate care arrangements should be) ordered with a parent who has allegedly perpetrated domestic abuse does not expose the child and/or 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) and is in the best interests of the child. Consideration needs to be given to the effect of making any order, or of making an interim no contact order, on the child, and on the care given to the child by the parent who has made the allegation of domestic abuse.
The court will also consider:
a. What steps might be required to minimise the risk to the child including whether contact should be supervised, and if by who and where;
b. If direct contact is not appropriate should there be indirect contact (e.g. letters, phone calls etc) or not.
c. Whether contact will be beneficial for the child.
Fact finding
The court will also consider as soon as possible within proceedings whether it is necessary to conduct a fact finding hearing in relation to any allegation of domestic violence or abuse. It might be such that the facts of the case mean that a fact finding hearing is not necessary for example, the allegations have been proven in other proceedings (e.g. criminal), or even if proven, the allegations have little or no bearing on the outcome of the case.
Where a fact finding hearing is required, both parties will be given an opportunity to set out their position in writing in the form of a statement. The statements can exhibit documents which support the parties’ cases. Third parties can be invited to provide supporting evidence also. The parties will give oral evidence at the fact finding hearing and will be cross examined by the other’s legal representative.
The court should, wherever practicable, make findings of fact at the conclusion of the fact finding hearing as to the nature and degree of any domestic abuse which is established and its effect on the child, the child’s parents and any other relevant person.
The court should in every case where there are findings of fact made consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic violence or abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
A no contact order will be made where the risk of harm to a child cannot be reasonably managed. Where the court does not consider direct contact to be appropriate (i.e. a no contact order is made), it must consider whether it is safe and beneficial for the child to make an order for indirect contact.
Intractable Contact
Intractable contact is where one parent will stop at almost no lengths to avoid contact taking place between the children and the other parent. Such cases are extremely difficult for the courts to grapple with. Cases with intractable contact are often long ongoing disputes with frequent breaches of court orders and false allegations against the other parent. They can lead to parental alienation, whereby the children become completely opposed to contact taking place with the other parent due to the manipulation or actions of the parent opposed to contact.
In situations where the courts find intractable contact it may consider changing the parent with which the children primarily live in order to minimise the potential damage to the children’s welfare. Where a child is extremely hostile to contact as a result of the situation in which they have been placed, and every other option has been explored, the court might, in exceptional circumstances sadly conclude that there is no alternative other than to make a no contact order in respect of the non resident parent.
An example of such circumstances can be seen in Re J (A Child – Intractable Contact) [2017] EWFC B103. The case concerned a 7 year old boy who lived with his mother. Disputes over the care arrangements for him had started not long after the child’s birth in 2010 and continued in various guises for 7 years. The mother made various allegations of abuse against the father but these were found not to have taken place.
As can be seen from the below passage from the judgment, the father in that case consented to a no contact order being made, not because he had done anything wrong or because he didn’t want to see him, but due to the impossible situation that the child’s mother had put him in:
The father’s position today, as I have already indicated, is that he still wishes to withdraw his application. He takes that position not because he does not love his son – indeed, I am in absolutely no doubt that he loves J a great deal – or that he has lost interest in this litigation. These proceedings are emotionally distressing for the father. He is immensely frustrated that, as he would see it, this mother has deliberately flouted orders made by this court and the court has appeared powerless to do anything about it. As he rightly points out, two years ago the court made a clear finding that J’s mother has emotionally abused J, yet the court has not been able to deliver an outcome that helps J to recover from that abuse or prevent that abuse from continuing into the future.
I am acutely conscious of the fact that, in allowing this father’s application to withdraw these proceedings, I am taking a step which may not be in the best long-term interests of this little boy. However, with both misgivings and regret, I accept that it is appropriate to accede to the father’s request to withdraw his application.
Other circumstances
There are potentially other categories of cases where a no contact order might be necessary. Re M (Children) [2017] EWCA Civ 2164 was a case before the Court of Appeal which overturned a decision in the first instance in which a no contact order was made. The family in that case with from an orthodox Jewish community. The father was shunned from the community as she had been living as a woman. In the first instance the judge took the view that the risk of the children also being shunned by the community was of a greater harm to them than not seeing their father.
Quite rightly, the Court of Appeal overturned the decision at first instance. In doing so it was stated “We suspect many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?”
Whilst a no contact order was not ultimately made in this case, it does highlight that there could potentially be other circumstances which might arise which could give rise to the court making a no contact order.