(Please note that this post was edited on 9 November 2020 to remove some inaccurate material)

There are many legitimate criticisms of the way in which family courts have dealt with domestic abuse. They are well documented in the Harm Report (see our posts here and here). Sometimes however, it seems that commentary and criticism about the family court slides away from being evidence based and towards the opportunistic and the sloppy (both in the mainstream media and more broadly). We have noticed that negative comments about family courts minimising domestic abuse often appear in social media alongside media reports that offer little or no evidence of actual cases. This is not helped by the closed nature of family proceedings but exaggeration may undermine genuine concerns. This post addresses a recent example.

This week the Guardian published an article entitled :

Domestic abuse survivors ‘having to pay for abusers to see children’

The strapline ran : ‘London victims’ commissioner calls for overhaul of family courts, including child contact payments’

This is an emotive topic. If I were a victim of domestic abuse, had been through a criminal trial or fact finding hearing, had proved my ex had done all those things to me that he had denied, had endured multiple hearings, had carried on rebuilding my life and caring for our child all the while, trying to keep things on an even keel with only one income… if I had then had to deal with the anxiety of sending our child off to see him again, worrying if she would be safe, worrying if contact would be used as a platform to somehow get at me – then yes, if as the cherry on top of the cake I was told I had to pay for the contact supervisor’s fee, I would be pretty upset. This issue is definitely one that grabs the attention – there is no doubt that if courts are making such orders this seems grossly unfair. Sadly, because of the Family Court’s patchy history and poor reputation in matters of domestic abuse, this is precisely the sort of article which is all too believable for many.

The article quotes Transparency Project Chair Lucy Reed (me) as follows :

Lucy Reed, a family law barrister and chair of The Transparency Project charity, said: “Once the court has made a decision it is in the best interests of a child to have contact with both parents, it may well be the best way to facilitate that is by sharing the costs.

“In my experience courts will make the best decisions they can knowing they have limited powers to enforce any financial aspect of their order and there is often no other source of funding.”

But she said judges should give fair weight to both parents’ financial means.

She added: “Courts should be alive to the fact that where there are allegations of coercive or abusive behaviour there is a need to avoid inadvertently making orders that either jeopardise a caring parent’s ability to provide for their child or that may inadvertently perpetuate financial control.”

The Victims Commissioner is quoted as complaining that the Domestic Abuse Bill that is currently in Parliament leaves ‘many [abuse survivors] having to face abusers repeatedly, or pay for the cost of facilitating child contact arrangements’. There are two case examples given in the article.

In the first, the father is said to be the subject of allegations and to be ‘under investigation’ at the point when contact was ordered, so it is unsurprising that we are told there was a query raised about whether contact ought to have been ongoing at all whilst those allegations were still pending. At this stage supervision was likely to have been precautionary but not necessarily permanent. There is insufficient information to really form any view on whether or not an order about the costs of the contact was appropriate or wrong.

In the second case, a mother reports being a victim of financial abuse but it is far from clear whether or not that is something that has been tried or proved in her case, nor is any information given about the broader context – it is self evident from that fact that the court has ordered contact both in the UK and abroad (where the father lives) that the court has concluded contact is safe, and here the costs are not for supervision but for transport, in a cross border case. Whether the costs burden results from the father choosing to move away, or from the mother relocating to the UK (back home or from the family’s country of origin) is unknown, as is the parties’ respective financial situation. Again, it is impossible to form a view about whether this is an example of an order reasonably or wrongly made.

Neither of the two examples given in the article is clearly an example of a case where contact has been ordered in spite of a conviction and only one relates to the costs of supervision that is made necessary because of abusive conduct. This tweet by the Observer’s Chief Leader Writer, Sonia Sodha is simply not supported by the detail of the article she is retweeting :

That said, it is quite possible that there is an issue around orders requiring victims of abuse to bear the costs of supervision of contact, notwithstanding the lack of hard evidence in the article itself. My (not very scientific or statistically significant) sounding out of other family lawyers on twitter since the publication of the article certainly suggests such orders might be being made on occasion, but the picture is very mixed – most of those responding had not encountered it as an issue at all, and only one said it was a problem in her cases, suggesting that (as is so often the way) there may be some inconsistency across the board.

The legal context

It may help to expand briefly on the legal framework that underpins any judge’s decision about the costs of contact in a dispute of this sort.

Best interests

First of all, although the legal starting point is that a child benefits from having a relationship with both parents, any contact the judge orders must be in the best interests of the child – and that means it must be safe. Often where there are outstanding allegations of abuse it won’t be appropriate to order contact until a decision has been made about whether the allegations are true (either by criminal conviction or a fact finding hearing in the family court), and guidance to Family Court judges is quite strong on this. One of the criticisms often made of the Family Court is that this guidance is not properly followed and interim contact is ordered when it really shouldn’t be. That seems to be a potential issue in one of the two cases studies in the Guardian article – but it is a separate issue from the question of who should pay for the costs of contact.

But, even allowing for the guidance, sometimes the court will decide it is in the best interests of the child for contact to be ordered even where there are allegations of abuse (typically where a child has a pre-existing relationship with a parent, particularly where the child is asking to see their parent – particularly where there has been a history of false or exaggerated allegations it might be that a judge will decide the contact should continue but supervised whilst things are sorted out, so that if the allegations aren’t proved the relationship won’t have been too damaged). The same applies too even where convictions exist or findings are made.

Views differ about how often Family Courts get this bit wrong – some say the courts adopt a ‘contact at all costs’ approach, others say that the courts are correctly applying the law which obliges them to look at all the circumstances applicable to this particular child and his or her parents (See the below recent thread on the use of the phrase ‘contact at all costs’ prompted by the Guardian piece).

So the court has decided contact is in the child’s best interests – what next?

If contact is in the child’s best interests then the court has to find a way to make it happen.

In some cases there are no particular costs to worry about, but in cases where formal supervision is needed there is likely to be a cost. Unless the child is in care there is almost certainly going to be nobody who can pay those costs apart from the parents (judges don’t have funds they can allocate or free services to direct parents to).

In other cases the parents live some distance apart and whichever parent is taking or collecting the child is going to end up bearing the burden of petrol or train / bus fares – unless the court makes some order that adjusts that. More often than not the court the costs burden will be shared to an extent by virtue of the fact that each parent is doing the travel on one leg of the journey or the location of the handover is some way between the two homes – it is not often the main point of dispute between parents. Sometimes though a parent will say ‘well I’m happy to drop them off but I really can’t afford the bus fare’ and here s11(7) Children Act can be useful. This enables the court to impose a condition on the contact order, typically that the resident parent must bring the child to contact on X date at Y location on condition that the other parent (the one benefiting from the contact) pays their travel costs or a portion of them. I’ve used this to good effect a few times, but it only really works where the order is for the contact parent to pay the resident parent – because a failure to pay means the obligation to bring the child falls away, whereas in reality it is very difficult to enforce a condition that goes in the other direction – because there is no consequence if the payment is not made (I could have a detailed technical argument with myself about whether there is a clever way to enforce or not and how you might go about doing it, but for all practical purposes we can just say its unlikely to be enforceable in reality).

Section 11(7) can be used in relation to the costs of supervision, but it has all the same difficulties where a resident parent, also a victim of abuse, is being ordered to pay the costs of supervision.

How does the judge decide?

Those are the powers the court has, but it’s also important to consider the wide discretion the court has, and the range of factors the judge has to consider. When a judge is thinking about using s11(7) to require a parent to pay the costs of supervision (or travel costs) she has to consider the child’s welfare and all the circumstances, including the factors in the s1 checklist. This means that in all cases the court is likely to be weighing up the comparative difficulty or ease each parent might have in meeting the costs or a portion of them, as well as the arguments as to why one parent should be saddled with the costs over the other.

All things being equal both parents have a duty to promote and facilitate contact between their child and the other parent, and so the court may well take the view that the costs burden should fall broadly equally.

But of course all things are not often equal, either financially or otherwise. In a significant proportion of cases the resident parent will have a lower income because of caring responsibilities and will be less able to pay. In cases where supervision is required because of abusive conduct there is a strong argument for saying that the abusive parent should bear that cost – if they can. Where an abusive parent is genuinely unable to pay but the court has decided contact is in the best interests of the child, a different order might be made, but in reality it is pretty rare for the victim to be any better off financially than the perpetrator, because of the combination of their care responsibilities and the knock on effects of the abuse on their ability to work and earn. Particularly if there is a history of financial control or abuse the court should be cautious about any invitation to require a victim of abuse to pay such costs. Courts must of course also be mindful of the fact that to place such a cost burden on a resident parent on a tight budget might have a direct impact on their ability to meet the day to day needs of the child in the case.

In cases where allegations are still outstanding the position is perhaps slightly less clear – here the supervision is necessary just in case and the court is perhaps potentially more likely to split the costs – it is difficult to say because the cases where allegations are serious enough to warrant a fact finding hearing but where contact is nonetheless appropriate AND where an alleged perpetrator cannot even manage to pay on an interim basis, AND where the resident parent and alleged victim is clearly able to pay are likely to be vanishingly rare. Many such victims are represented through means tested legal aid and are self evidently not flush with the funds to pay for such outgoings.

For all these reasons decisions about the costs of contact, where they arise, will be highly fact specific.

Given this legal framework, it would therefore unsurprising if there were some examples of judges ordering resident parents to contribute to the costs of abuse related supervision, but we should expect those to be few and far between. As far as I am aware there are no reported appeals on this sort of issue, but of course any parent on the wrong end of such an order is also likely to struggle with the costs of an appeal, unless they are funded through legal aid.

Why is this being raised now?

It’s difficult to say really – there doesn’t seem to be any particularly strong evidence this is an increasing problem, and it isn’t one that featured at all in the Harm report, even in passing (there are a couple of references to there being insufficient numbers of centres, and to their cost in general but no references to problematic orders regarding the payment of contact centre costs). It may be that what really underlies the article is the more general discontent with the idea that any contact should be ordered at all in cases where there has been abuse, particularly on an interim basis, (suggested by the inclusion of the familiar refrain about family courts operating on a ‘contact at all costs’ basis), let alone that the victim should have to pay any costs associated with contact that they don’t feel should be happening in the first place.

This is not a simple topic, and it must indeed be challenging for a parent who has been abused by a partner to be asked to pay to keep their child safe. But before reaching any conclusions on the headline or the satellite commentary and reaction it has prompted, it is worth considering these three important contextual points :

  • Firstly, that in many cases abuse is alleged but not (yet) proven, and in some it may continue to be alleged in spite of findings to the contrary;
  • Secondly, that the law does not say that domestic abuse is always a bar to contact, and it does not say that wherever there has been abuse (or an allegation) the perpetrator must pay all the costs of contact. Instead, the court is required by the law to undertake a fact specific balancing exercise to work out what is the best order to make for that particular child – mainly in terms of safe and appropriate contact and sometimes in relation to any ancillary matters such as the costs;
  • Thirdly, any decisions about contact costs that the court has to make will be made with quite limited resources and against a backdrop of a growing backlog of cases and huge pressure of work, that probably make it tricky to conduct a full financial assessment in every case where such issues arise.

This article is perhaps best seen as a part of wider attempts to raise the profile of the poor treatment of abuse survivors by Family Courts as the Domestic Abuse Bill passes through Parliament, with the support of certain sectors of the media. Although it is said by the Guardian that these campaigners are ‘working with lawyers’ to secure an amendment, no detail is given of what amendment is actually proposed – the topic of contact costs is simply not a part of the Bill as it stands, and at a guess any amendment would probably have to amend the Children Act 1989 itself to be effective. The demanding of amendments to the law for the better protection of abuse survivors and children without ever actually giving any detail of what amendment is proposed is not a new phenomenon – see this example of a proposed amendment to the Domestic Abuse Bill from 2019 – as far as I am aware no amendment was ever put forward; certainly our enquiries on that occasion never received any response.

A further example of domestic abuse in the news

Yesterday also saw publication of the judgment in the Jonny Depp libel trial, in which the High Court has found against Jonny Depp, concluding that allegations by The Sun that he was a ‘wife beater’ were substantially true (and making a number of serious findings against him of domestically abusive behaviour towards his then wife Amber Heard along the way – 12 of the 14 allegations were proved). Although defamation proceedings are very different from Family Court matters the process by which the judge reached his findings of fact and the subject matter of them are not so dissimilar to those often seen in the Family Court, albeit with more private jets than are commonly seen in more run of the mill family litigation.

There is a lot of twitter activity in response to the judgment, including many upset Depp fans who are in apparent disbelief that a judge could have reached the conclusions he did. We hope to write a separate post about this judgment in due course. In the meantime you could read journalist Nick Wallis’ tweet thread of the judgment here :

or this article in the Guardian and Inforrm’s post by Kirsten Sjøvoll here (there is lots of other coverage, unsurprisingly). The full judgment can be found on BAILII here.

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