Safety means more than preventing physical contact

One of the most important developments in family law has been the recognition that domestic abuse is not limited to physical violence.

Domestic abuse can include controlling or coercive behaviour, threatening behaviour, economic abuse and psychological or emotional abuse.

Children can also be victims of domestic abuse in their own right where they see it, hear it or experience its effects.

That matters enormously when courts make decisions about child arrangements.

A child does not have to be physically assaulted before safeguarding becomes relevant.

Nor does an abusive dynamic necessarily disappear simply because the adults separate.

Post-separation abuse can continue through litigation, communication, handovers, financial control, repeated applications, monitoring, intimidation and sometimes through arrangements surrounding the children themselves.

Indirect contact is not automatically safe

This is where the law is more sophisticated than people sometimes realise.

If direct contact is considered inappropriate, it does not automatically follow that letters, cards, telephone calls, video calls or messages should take its place.

Practice Direction 12J requires the court, where direct contact is not appropriate, to consider whether indirect contact would be safe and beneficial for the child.

Those words matter.

Indirect contact should not be treated as the harmless default option or a consolation prize for a parent who cannot safely have direct contact.

Imagine, for example, a child who has genuinely experienced frightening abuse by a parent.

A birthday card from that parent may not feel benign to that child.

It might be distressing. It might trigger memories or anxiety. It might communicate to the child that someone they fear can still reach into their life.

Those possibilities need to be taken seriously where supported by the evidence.

“The child doesn’t want contact” cannot always be the whole analysis

This is one of the most difficult areas of private children law.

A child may tell Cafcass, a social worker, a Guardian, a teacher or a parent:

“I don’t want to see Mum.”

Or:

“I don’t want to see Dad.”

That should never simply be dismissed.

Children are not property. They are people with developing autonomy, experiences, memories, emotions, attachments and views of their own.

But there is an equally important distinction:

Listening to a child is not the same as handing the child responsibility for deciding the litigation.

The Family Court still has to make the welfare decision.

What does the Children Act actually require?

Under section 1 of the Children Act 1989, the child’s welfare is the court’s paramount consideration when deciding questions concerning their upbringing.

The welfare checklist includes the child’s:

Wishes and feelings are therefore extremely important.

But they sit within a wider welfare evaluation.

Their weight will often increase substantially as a child becomes older and develops greater maturity and understanding.

That still does not mean that the court should merely record the child’s answer and stop asking questions.

The difficult question is: why?

Suppose a child refuses contact.

There may be many possible explanations.

The child may genuinely fear the parent because of abuse.

The child may have witnessed abuse of the other parent.

They may feel deeply hurt by the parent’s behaviour.

They may have experienced neglect, inappropriate discipline, intimidation or emotional harm.

They may dislike practical contact arrangements.

They may feel more attached to one household.

They may be struggling with a parent’s new relationship.

They may feel responsible for protecting one parent.

They may have become caught in adult conflict.

They may have repeatedly heard negative narratives about the other parent.

Their feelings may have developed from several of these factors operating together.

Or the explanation may remain unclear.

That is why good family justice requires investigation rather than slogans.

The Family Justice Council has specifically addressed this problem

The Family Justice Council has issued guidance dealing with children who are reluctant, resistant or refusing to spend time with a parent.

This is important because the guidance rejects simplistic explanations.

A child’s refusal may have a variety of causes.

The guidance recognises, amongst other possibilities:

• an understandable or justified rejection arising from the parent’s own behaviour;
• protective behaviour by the other parent where abuse has occurred;
• a traumatic response;
• attachment, affinity or alignment with one parent;
• ordinary difficulties in the parent-child relationship;
• and, in some cases, psychologically manipulative behaviour by another parent which has affected the child’s relationship.

Importantly, the child’s refusal itself does not prove psychological manipulation.

There needs to be evidence explaining what caused the refusal.

Be extremely careful with the words “parental alienation”

The terminology in this area has become highly contentious.

The Family Justice Council has expressly rejected the idea of a diagnosable “parental alienation syndrome”.

That does not mean psychologically manipulative behaviour towards a child can never happen.

It means the court should focus on specific behaviour, evidence and its effect upon the child, rather than attaching a diagnostic label.

This is particularly important where domestic abuse is also alleged.

A parent genuinely protecting a child from established abuse should not be accused of psychologically manipulating the child merely because contact has been restricted.

A child’s justified rejection of an abusive parent should not be recast as evidence against the protective parent.

Equally, where there is evidence that a child’s relationship with a safe parent has been deliberately undermined, the court cannot simply ignore that because the subject is controversial.

The answer is evidence.

Not labels.

Why chronology can change everything

One of the most useful things a litigant in person can do in a contact breakdown case is create an accurate chronology.

Imagine that a child had a warm relationship with a parent for ten years.

Then something changed.

Contact became inconsistent.

Telephone calls reduced.

Overnight stays stopped.

A birthday was missed.

The child began expressing reluctance.

Months later, the child said they wanted no contact.

If the court only sees the final statement:

“I don’t want to see them.”

it may miss the story of how the relationship deteriorated.

The opposite can also be true.

A chronology may demonstrate years of fear, harmful behaviour, failed interventions, distress following contact and consistent statements from the child.

In that situation, the chronology may provide strong evidence that the child’s refusal is an understandable response to what they have experienced.

A snapshot tells you the child’s position today. A chronology may help explain why.

For litigants in person: build an evidence-led contact chronology

Do not make it a diary of every argument between the adults.

Focus on events relevant to the child and the disputed relationship.

The aim is not to overwhelm the judge with hundreds of pages.

It is to make the pattern visible.

Compare what the child said over time

Where wishes and feelings have changed significantly, the earlier evidence may matter.

Look for:

• previous Cafcass reports;
• section 7 reports;
• Guardian reports;
• social work records;
• school records where relevant;
• earlier court judgments;
• previous statements made directly to a judge;
• messages or letters from the child where appropriately obtained;
• records showing previous contact arrangements;
• and evidence showing when and how the relationship changed.

Questions to ask when a child suddenly refuses contact

Depending on the facts, useful questions may include:

1. When did the child’s reluctance first appear?
2. What was the relationship like immediately before that?
3. Did anything identifiable happen?
4. Has the child given reasons?
5. Have those reasons remained consistent?
6. Are there findings or evidence of domestic abuse?
7. Has the child witnessed or experienced harmful behaviour?
8. What do independent professionals record?
9. Has contact gradually reduced before stopping altogether?
10. Were reasonable attempts made to address difficulties?
11. Was safe indirect contact considered?
12. Were cards, gifts or calls facilitated or prevented?
13. Were replacement arrangements offered when contact was cancelled?
14. What explanation has been given for preventing contact?
15. What does the child understand about the dispute between the adults?
16. What would be the likely welfare impact of attempting to restore the relationship?
17. What would be the likely long-term effect of allowing the relationship to disappear?

Read Cafcass reports critically — but fairly

Cafcass may play a central role in understanding a child’s wishes and feelings.

Litigants sometimes make one of two mistakes.

They either assume that because Cafcass has written something, it must be correct.

Or they reject an entire report because they disagree with its recommendation.

Neither approach is particularly useful.

Read the report analytically.

Ask:

• What evidence was considered?
• Who was interviewed?
• How many times was the child seen?
• Was the child seen alone?
• What did the child actually say?
• What interpretation has the author placed upon those words?
• Are fact and professional opinion clearly distinguished?
• Were previous court findings considered?
• Was domestic abuse properly analysed?
• Was the history of the parent-child relationship considered?
• Were changes in the child’s expressed wishes examined?
• Was the possibility of justified rejection considered?
• Were alternative explanations considered?
• Does the recommendation follow logically from the evidence?

Challenging a report does not require accusing the professional of dishonesty or bias.

Often the stronger submission is:

“The report records X, but it does not appear to analyse Y. I respectfully invite the court to consider Y before accepting the recommendation.”

That is focused.

It identifies the evidential gap.

And it gives the judge something useful to decide.

Domestic abuse changes the analysis

Where domestic abuse has been admitted, proved or otherwise established, PD12J requires much more than a superficial examination of contact.

The court must consider the impact of the abuse upon the child and the parent with whom the child lives.

It must consider future risk.

It must consider the effect of the abuse upon the child’s relationship with each parent.

And the court should consider whether the litigation itself is being used to continue domestic abuse.

That last point is particularly important in cases involving coercive control and post-separation abuse.

Family proceedings must not become another mechanism through which an abusive person retains control.

But that safeguarding principle should not be converted into another shortcut.

The court still has to analyse the individual evidence and the welfare needs of the individual child.

Stopping contact is not necessarily a neutral decision

Much discussion understandably focuses on the risk of ordering contact.

But there is another part of the welfare equation.

What happens if an important parent-child relationship disappears altogether?

Sometimes that may be necessary for the child’s protection.

But where it is not necessary, the consequences may be significant and potentially difficult to reverse.

Months become years.

Shared experiences disappear.

Birthdays pass.

Family relationships weaken.

Memories change.

A temporary breakdown can become the child’s permanent reality.

That is why delay matters so much in children proceedings.

What if contact has completely stopped?

If you are a litigant in person facing complete contact breakdown, resist the temptation to make your case entirely about your own loss.

The loss may be devastating.

But the court’s legal focus is the child.

Instead of saying:

“They have taken my child away from me.”

consider whether the evidence allows you to say something more focused:

“The child previously had a significant relationship with me. That relationship has progressively reduced since [date]. I ask the court to examine the evidence explaining that change, the child’s current wishes and feelings, any identified safeguarding concerns and whether a safe, child-focused pathway exists for preserving or restoring the relationship.”

That is much closer to the question the court actually needs to answer.

Do not breach an order because you believe contact is being unfairly restricted

What should you actually ask the Family Court to do?

The answer depends entirely on the case.

Possible issues might include whether the court should:

• obtain or update a section 7 report;
• ask Cafcass specific questions about the child’s wishes and feelings;
• determine disputed allegations of domestic abuse;
• consider previous findings or judgments;
• review the chronology of contact;
• consider whether indirect contact is safe and beneficial;
• consider supported or supervised arrangements where appropriate;
• consider whether therapeutic or other specialist intervention is necessary;
• consider whether the child should be separately represented in an appropriate case;
• or determine whether contact should presently be restricted or cease because of risk.

You should not ask for every possible intervention simply because it exists.

Ask yourself:

“What information is the judge currently missing that prevents a safe and properly informed welfare decision?”

That is often a much better starting point.

Make the court’s job easier

Family Court hearings can become overwhelmed by history, accusations and hundreds of pages of messages.

A litigant in person can improve their presentation enormously by identifying:

That structure is usually far more persuasive than simply telling the court that the other parent is unreasonable.

The central question is not “contact or no contact?”

There is a tendency in difficult family cases to divide people into camps.

Pro-contact.

Anti-contact.

Protective parent.

Alienating parent.

Victim.

Perpetrator.

Sometimes the evidence will justify clear findings.

But labels cannot replace analysis.

The court’s task should be more fundamental:

The child needs more than a voice. The child needs to be understood.

Children should be heard.

Children experiencing domestic abuse must be protected.

Children should not be forced into relationships which expose them to physical, psychological or emotional harm.

But listening to children properly means doing more than recording a sentence.

It means understanding their experiences.

Their relationships.

Their history.

Their fears.

Their attachments.

And the context in which their current views developed.

Sometimes that enquiry will demonstrate that contact should stop.

Sometimes it will demonstrate that indirect contact is the safest option.

Sometimes it will reveal a relationship that can be rebuilt carefully.

And sometimes the evidence will remain complicated and uncomfortable.

Family justice should be capable of tolerating that complexity.

Because the destination should not be chosen until we properly understand the journey.