This blog post is a guest post by Sarah Phillimore.
In past few years I have had a number of cases in child arrangements disputes where only indirect contact is ordered at the conclusion. I sometimes represented fathers, sometimes mothers but 100% of those orders for indirect contact were against fathers. Some had findings of fact against them, that they had behaved badly and given their children reason to fear them. Others had no findings made or were even deemed ‘unimpeachable’ but the mother’s consistently aversive reaction to any suggestion of their direct involvement in the children’s lives was considered sufficiently serious to rule them out of any direct contact.
My growing sense of frustration and unease with this approach is underscored by the fact that no body ever came up with any evidence to support various assertions along the lines of ‘this will keep the door open for the children’, or ‘in time they will be curious about their father.’ No one ever had any statistics for how many orders for indirect contact eventually blossomed into direct contact or how many simply withered on the vine.
My suspicion was that an order for indirect contact was a more polite way of kicking the father into the long grass, and the reality behind such orders was that he would not see his children during their child hood.
Of course I agree that violent or other abusive behaviour from one parent to another is a serious failing of parenting and there should be no question of permitting unsupervised direct contact until the abusive parent understands that and can demonstrate he (for it usually is he) has changed his behaviour.
But what of those cases where a mother has irrational, albeit genuine reasons for not wanting the father involved in the children’s lives? Or where the father has behaved badly but has shown genuine insight and a wish to change and make amends, for example, by engaging with a domestic violence perpetrators programme? Shouldn’t the courts then be doing all they could to protect the Article 8 rights of the children to have a relationship with their father? We are continually told that to deprive a child of knowledge about one half of his genetic identity is a serious deprivation and can have significant consequences throughout a child’s life.
So I was pleased when re W was decided. (Re W (Direct Contact)  EWCA Civ 999). This seemed a clear exposition of the existing law, that orders for only indirect contact were a serious thing and while the court should not easily give up on trying to make contact work, it offered a helpful reminder at paragraph 70 that both parents have a responsibility to make contact work.
Encouraged by Re W, I attempted to appeal the next case where I acted for a father who was offered only indirect contact, on the basis that the recommendation of the guardian appeared to be based on no evidence or analysis of how this would actually meet the children’s needs, save for the expression of the hope that the children’s own ‘natural curiosity’ would bring them in time to ask about their father and wish to to see him.
I expressed considerable skepticism about the likelihood of that; it was clear that the atmosphere in the mother’s home would not promote to curiosity in young children who had not seen their father for several years and probably had no independent memory of him. The children were strongly allied to their mother who was implacably opposed to any form of contact.
McFarlane J echoed what he had said in Re W about the importance of parents taking responsibility for their children’s relationship with both parents: at para 59 Re D (A Child)  EWCA Civ 1057,
It is they [the parents] who, on those findings, hold the key that might unlock matters for B. It is not going to be easy for B in his own way, in his own time, unaided to say that he wants to see his father. He needs every encouragement from his mother to deliver what she says is her position which is that he would benefit from seeing the father and that she, as she told us through her counsel today, accepts, not just in the forensic sense, but genuinely accepts, the findings that Judge Hornby made.
I was not successful in my appeal, the first instance decision being deemed ‘unassailable’ despite the lack of any evidence to support the assertion that the order for indirect contact was one that would meet the children’s needs in the short, medium and long term.
But where is the evidence? What informs us that indirect contact is a realistic option? Are my suspicions correct? Is it just a more palatable way of kicking a father off into the long grass.
I asked my instructing solicitor about her experience. She said:
I have had several cases over the years where indirect contact has been ordered as a final order. A handful have come back to me to seek an order for direct contact. The circumstances of these cases varied but, in my experience, if the mother was unsupportive of direct contact (which they invariably were) then the children didn’t want direct contact either. There is clear evidence that the resident parent has enormous control over children and, of course, the longer the children don’t see a parent then the less likely that they want to, either of their own accord or because of potential retribution from the resident parent if they did show any interest/indication that they did want to see the other parent. The pressures that are put upon children of all ages is enormous (emotional/psychological). Our current court system, being adversarial and not inquisitorial, does not facilitate enquiry into potential solutions.
It is a desperate situation that is unlikely to be resolved unless the Judiciary takes a firm grip and shakes the current system.
I asked via the guardian’s solicitors if Cafcass kept any statistics about indirect contact orders and the rate at which they ever translated into direct contact. I did not get any response but I will assume that this is because Cafcass do not keep such statistics – in fact no one appears to be monitoring these cases and reporting on the success or otherwise of their outcomes.
Section 11H of the Children Act 1989 was inserted on the 8th December 2008 by the Children and Adoption Act 2006 to provide the court with the power to impose a ‘contact monitoring order’. The court can ask Cafcass to monitor whether or not an individual is complying with the contact order and request a report about an invidual’s compliance.
It says something either about my own competence or the efficacy of these orders that I was only barely aware of their existence.
It does not seem that anyone is collecting any data about how often contact monitoring orders are made and what are the outcomes, but I would be very interested to know if I am mistaken about that.
So I turn to google. I don’t pretend to have carried out any meticulous research into this issue but I thought if there were clear evidence to support the often made assertions about even very young children’s ‘natural curiosity’ being strong enough to override the obvious hostility of their resident parent, I would surely find some mention of it.
I spent an hour. This is what I found.
1. Alison Perry and Bernadette Rainey of Swansea University discussed a Nuffield Foundation study of 2006 about indirect contact. They concluded:
- Indirect contact is an outcome of last resort rarely used by the courts.
- Cases in which indirect contact tends to be ordered can be broadly categorised as those where the non-resident parent is seen as presenting a risk to the child’s safety or well-being, and those where direct contact is not a realistic possibility, usually because of incarceration or geographical distance. In each type of case weight was given to the children’s opposition to contact.
- The experiences of the parents of indirect contact were largely negative.
- The parents had experienced the following main difficulties with indirect contact:
- lack of compliance, the resident parent failing to pass on letters or provide an up-to-date correspondence address; and unwanted contact with their former partner.
2. Clive Baker, a family law barrister said on his website in 2013, in answer to a query from a parent (see http://www.familylawquestions.co.uk/page1/)
I also appreciate how difficult indirect contact is. Many clients have described to me how it feels soul destroying sending a card, not knowing whether it will be given to your child and not knowing his or her reaction, with very little or no feedback. However, it is worthwhile keeping in mind that you will always be your son’s father and that as he grows older it is very likely he will be very grateful for the effort you put in at this stage to keep in touch with him and to show him that whatever the reason for him not living with you, you still love him. My experience and indeed research shows that the vast majority of children who are cared for by people other than their parents often make contact with their parents as they grow older (although that is a whole other post).
In answer to the question ‘what guarantee is there your son will get the cards?’
The short answer is, very little. The Court will expect that your son’s carers will let him read them and let him keep them (providing they are appropriate). The Court will expect your son’s carers to give them to him in a ‘positive’ way and also in all likelihood encourage him to reply, at least with a ‘thank you’ card or letter (depending on his age). I know that in reality and for all sorts of reasons this often does not happen.
3.The Family Lore clinic said in 2013 in answer to a query from a parent who wished to challenge an order for indirect contact (see http://www.familylore.co.uk/2013/11/family-lore-clinic-cafcass-recommends.html)
The other point to make is that the indirect contact may only be temporary. For example, in a case where there has been no contact at all for a while indirect contact may be seen as a way to reintroduce the parent to the child(ren). If the indirect contact goes well, it may then be varied to include direct contact. Obviously, in this case it may be better to be patient, rather than to try to challenge the welfare officer, which would involve everyone having to go through a contested court hearing.
So far, so unreassuring. I wonder how old these ‘vast majority’ of children are when they go looking for the non resident parent – and who copes with the fall out if and when they discover this parent was not quite the monster described as they were growing up.
I looked on the Families Need Fathers website; a search for ‘indirect contact’ revealed ‘no search results could be found for query: indirect contact’.
So here’s the thing. If indirect contact is clearly of benefit to children; if it keeps a door open that they can one day step through to a happy reunification with their father, that’s great. But if instead promoting ‘indirect contact’ is in reality nothing more than trying to soften the blow of saying to a father that his chances of seeing his children during their childhood are slim to none, please lets be clear about that.
I would be delighted if someone could point me to a solid piece of peer reviewed research about the likely outcomes following a final order for indirect contact, that will enable me to advise my clients properly. Is it worth spending time and money on anger management/counseling/therapy?
Because giving false hope is both unfair and unkind. And pretending we have a solution to a problem when we really don’t is a fool’s game. Avoiding difficult problems is rarely a good strategy in any field of human endeavor but particularly not when you are dealing with the long term emotional health of children.