Contact after Findings of Domestic Abuse

11th March 2021

Teena Dhanota-Jones, Consultant at Simons Muirhead Burton, analyses a recent case involving the interplay of the law on contact and Practice Direction 12J on domestic abuse.



R (no order for contact after findings of domestic abuse) [2020] EWFC B57 is an important case heard at the Family Court in Oxford by HHJ Vincent. It involved the application of the law on contact and PD12J on domestic abuse. HHJ Vincent sets out the law and procedure succinctly.



The parents met in 2008, whilst mother was journeying around South America. The parents were able to maintain a long-distance relationship. In September 2010 father arrived in England to study for a master’s degree. He was granted a student visa for 12 months. The parties separated in June 2011, resulting in father returning to South America.

In June 2011 mother reported to the police that she had been a victim of “serious domestic abuse”.

During summer 2012, the parents rekindled their relationship and conceived their daughter R. The relationship did not survive and ended in December 2013, albeit mother had spent some seven weeks in South America.


Earlier Fact Finding Hearing

At an earlier fact-finding hearing HHJ Vincent had made findings against the father in respect of his behaviour towards the mother.  Some of the findings are summarised:

  1. “By June 2011 the mother was experiencing the intensity of the father’s focus upon her as demanding and oppressive. She came to feel that she was responsible for his moods, which were changeable, he could be aggressive, particularly in their sexual relations, uncaring of her feelings, and she felt increasingly intimidated and at times scared by him. I found that her experience of the relationship between January and June 2011 was that it was abusive.”
  2. “I do not find that the excerpts from texts of emails upon which he relied did establish the uncomplicated and purely loving picture he wanted to suggest…. The messages are raw and written with a great deal of heightened emotion and soul-searching, and are exposing of the mother’s feelings at that time.”
  3. “There is consistency, over many years, from the mother in the way she describes the father’s behaviour. Her complaint was made a couple of years before R’s birth, it is hard to conceive what her motivation would be, and if seeking to exclude him from her life, why she at the same time persisted with declarations of love.”
  4. “I accepted her account of the change in his behaviour towards her, that he could be cold and unfeeling towards her and at times aggressive in their sexual relationship.”
  1. “I found that the father had caused physical harm to the mother by insisting on practising on a daily basis Aikido moves on her.”
  2. “…his behaviour towards her has had a profound effect upon her…”
  3. “I found that during the period of the relationship when the father was in England between January and June 2011 he did seek to influence her in ways that made the mother feel increasingly isolated, and to lose self-confidence and her sense of identity.”


The applications before the court

Father had applied for an order under the Children Act 1989 for him to spend time with R (his daughter who was 7 at the time of the final hearing) and a parental responsibility order.  Mother had opposed the applications and only supported indirect contact; she had also made oral applications for a prohibited steps order and a non-molestation order.


The final hearing

Application for child arrangements order

HHJ Vincent applied the welfare checklist at s1(3) Children Act and guided herself to s1(2)A: the presumption that favours both parents to be involved with the child unless “proved to the contrary.”  She cited s1(2B) which makes it clear that the “involvement need not be equal and may be direct or indirect.”

HHJ Vincent had made findings of fact of domestic abuse and therefore guided herself to PD12J.  She cited the following paragraphs:


When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.


In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic 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.


In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –

(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;

(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;

(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

(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.”

HHJ Vincent drew her attention to the dicta in the following cases, which were all prior to PD12J (14.09.2017 and the revision 2.10.17):

  1. Re C (Direct Contact: Suspension) [2011] EWCA Civ 521;

Re J (a minor) [1994] 1 FLR 729-34;

Re M (a minor) (contact: conditions) [1994] 1 FLR 272

Each of the cases has the same important principle: contact is fundamental, and termination can take place only “if it is detrimental to the child’s welfare.”

  1. Re O (contact: imposition of conditions) [1995] 2 FLR 124 at 128

Sir Thomas Bingham held:

“that in existing circumstances an order for immediate direct contact should not be ordered, because so to order would injure the welfare of the child.”

Again, HHJ Vincent directed herself to how careful she must be in the consideration of this matter despite the finding made against father: a seemingly difficult balancing exercise.

  1. Re L (A child) (Contact: Domestic Violence) & Ors [2001] FLR 260.

Lady Justice Butler-Sloss:

“There is not, however, nor should there be, any presumption that on proof of domestic violence the offending parent has to surmount a prima facie barrier of no contact.  As a matter of principle, domestic violence of itself cannot constitute a bar to contact.  It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of a need to change, and make genuine efforts to do so, will be likely to be an important consideration.”


Application for Parental Responsibility

HHJ Vincent emphasised the component of parental responsibility: it has to be in the interests of the child. Further and importantly, the court must look at:

– “The degree of commitment the father has shown towards the child;

– The degree of attachment between him and the child; and

– The reasons why he is applying for the order.”

HHJ Vincent concluded: “I am satisfied to the standard of a balance of probabilities that her anxiety is real, persistent and that it stems from the experiences of her relationship with the father.”

HHJ Vincent correctly and understandably placed substantial reliance on the conclusion of the expert contained in three risk assessment reports:

“At root of Mr Kent’s analysis is the dynamics of the parental relationship. In his view essentially the parents are stuck; the mother remains traumatised and emotionally fragile as a result of her experiences in the relationship, and the father is unable or unwilling to acknowledge responsibility for the harm he caused to her, regards it as historic and not relevant to present circumstances, and instead now blames her for failing to facilitate a relationship between daughter and father.”

The Honourable Judge then applied the welfare checklist and made some insightful observations. R is too young to provide any reliable information. However, the Judge considered that mother might well relay her feelings to R, which would be damaging to R.  Further, mother is R’s emotional support, mother suffers with anxiety which is brought to the forefront when she has to contemplate communication with the father. Such an impact on mother would impact on her ability to be the only emotional support for R.  Interestingly there had been shown in court a story board prepared by R, containing photographs of the father. However, the father had refused to look at this story board, and remained entrenched in his assumption that mother had been derogatory about him to R.

HHJ Vincent then directed herself to the risk of harm to R.  She set out the impact of:

  1. the parent conflict; which would be inherent and ongoing particularly when the father dismisses the mother’s concerns as “absurd, fabricated and malicious…..he does not accept that there is any need for him to make changes…”
  2. the exposure of the intensity of father’s emotions, which was described as “overwhelming”.
  3. the father’s inability to prioritise R’s needs before his own; the father suggested that a DNA test be undertaken and that the mother should be untruthful to R about this.

Overall it would seem that the above detailed analysis about the risk of harm was present and acute.

HHJ Vincent then appropriately considered whether the risk could be managed. She concluded: “I do not consider that the risks could successfully be managed with intervention from social services, supervised contact or other third party.”  Her poignant conclusion was: “Change starts with responsibility. The father has not demonstrated any real ability to accept the findings of the Court, to acknowledge that his behaviour towards the mother was experienced by her as abusive, and that her response to him is caused by the way that he behaved towards her.”


Relevant references to PD12J

Directing herself to paragraphs 35 to 37 of PD12J she held that:

Para 35:

  1. There will be unmanageable risk of harm if direct contact takes place, to both the mother and R:

“I do not consider that the physical and emotional safety of the child and the parent with whom the child is living can be secured before during and after contact.”

Para 36:

  1. There were findings of fact of domestic abuse and risk assessment reports had been obtained. HHJ Vincent correctly placed huge reliance on the findings in those reports in accordance with paragraph 36. The expert considered that: “…the parents were stuck.” The father’s inability to accept any responsibility for his behaviour sent a clear message to the Judge that father would remain entrenched in his opinion. His case that there were only two findings of fact against him were misguided and inaccurate. No doubt this cemented the Judge’s view of the real and possible risk to the mother and R.

Para 37:

  1. HHJ Vincent considered each of the factors and her firm conclusion was:

“With regard to the specific matters at paragraph 37 of the practice direction, I have considered the impact of the continued parental conflict upon R and the risks that would pose to her relationship with each of her parents.  Her mother’s ability to care for her would be impaired and her feelings that in pursuing a relationship with her father may cause her mother unhappiness or anxiety are likely to be burdensome.  Because of the father’s personality, the intensity of his emotions, she may be subject to feeling overwhelmed, confused, constrained to follow his lead, or responsible for his emotions.  She is at risk of being exposed to the high levels of negativity with which he sees the mother and her parenting could be undermined as a result or she could feel conflicted.”


The decision

  1. Father was not granted direct contact.

HHJ Vincent gave a very firm and forthright reason:

“While the father is so fixed in his perspective that he is the victim in the scenario and while he holds such a relentlessly negative view of the mother, and while his interactions with her throughout these proceedings have been to seek to undermine her, accuse her, and belittle her experiences, there is no prospect of her anxiety being lessened and of feeling any reassurance that contact for her daughter will be safe.  Her own emotional safety would continue to be adversely impacted, and this is likely to have an adverse effect on her capacity to parent her daughter and other children.”

  1. Father was not granted parental responsibility.

HHJ Vincent held:

“I do not consider it appropriate that he should exercise parental responsibility in circumstances where he does not have a relationship with her, is not going to be in a position to make informed decisions about what is in her welfare interest and where he has a very fixed view that the child’s mother is wrong and that his perspective is right..”

  1. Indirect contact via skype

Albeit this was not suggested, HHJ Vincent provided an extremely helpful summary as to why this was deemed to be wholly inappropriate by the mother:

“The mother gave reasons as to why she did not consider the previous remote contact worked.  It would be a very direct intrusion into the mother’s home, which would fuel her anxiety, either she or a family member would have to supervise, which she would not feel comfortable with, and it is not always an easy way for children to connect to someone with whom they do not have an established bond already.  It could put pressure on R if she felt that there was information about her home and surroundings that she should not be sharing.  It is harder to supervise and manage once children get to a stage where they have access to a smartphone or tablet or computer in the house.”

  1. Indirect contact

Mother agreed to indirect contact via exchange of cards and letters.  HHJ Vincent granted indirect contact and defined this to include:

– letters;

– cards; and

– gifts on Christmas and birthdays.

  1. Non molestation and prohibited steps order

HHJ Vincent was not convinced that these orders were required.



This matter has showcased the robust approach much-needed by Judges to have PD12J at the forefront of their mind whenever there have been findings of domestic abuse. The application of the law in children disputes where there are findings of domestic abuse is more intrinsic and detailed, and the welfare checklist is simply not enough.

The case highlights the balancing exercise that the Judge had to make against the backdrop of a father who had remarried and had another child and seemingly had at least apparently moved on. The implementation of PD12J has brought to the forefront that domestic abuse in contact applications requires proper and thorough investigations. The procedure of a fact-finding hearing and then risk assessments serves to support that such investigation is necessary, without which the outcome of this case may have been very different, if all the court had were statements and a CAFCASS officer’s report. Perhaps father would have swayed a judge by way of a statement of a new rosy life with his new family and may have even convinced a CAFCASS officer. Fortunately, PD12J has dictated that domestic abuse is a pertinent issue in contact applications.

This article first appeared in Family Law Week.