At the weekend the Daily Mirror reported the torment of a victim of serial rape and domestic violence, at her former partners’ application (from prison) to the family court for contact with their child and the judge’s decision to permit him to send letters.

Russell Mellford was sentenced to imprisonment in December 2015 for multiple offences of violent rape and indecent assault against Karen Lee (and another of his former partners). He received an enhanced sentence of 22 years based on the risk he posed. The Judge himself appears to have called him ‘a monster’ and referred to the ‘living hell’ both women must have experienced (we can’t find the sentencing remarks online).

The Daily Mirror rightly hold convicted rapist and violent offender Russell Mellford accountable for “putting his victim and her daughter through a new hell from behind bars”.

But they go on to record her sense that:

“We’ve been failed by the system that allows him to do this to us, his victims”

The Mirror refers to the impact of having to receive letters at all, given the history and her continuing treatment for post traumatic stress disorder; as well as the fear it has engendered that her daughter might later be ordered to visit him in prison. We speculate also that she may be referring to the fact that he has been able to make the application at all and the outcome of what may have been a family court decision to allow contact in the past.

We don’t have the information from which to offer a view about the recent decision to permit letters to be sent to the child in this case. We don’t know the evidence, the Judges reasons or even whether the case is ongoing. We don’t know whether the order permitting letters has been or will be appealed. Or the age of the child or what relationship (if any) had developed between them, after an apparent first family court decision some years ago which resulted in contact despite the allegations, at a time when the police had decided not to prosecute. (A fresh police and social services investigation seems to have been prompted by the second woman’s evidence emerging).

But it may be useful to flag a few points about how family courts SHOULD determine applications where domestic violence or abuse is a feature and what options are available to women if that is not happening in their case.

• Judges can and do make orders for ‘No Contact’ if the child’s welfare on all the available evidence (including long term identity needs) warrant this.

• Reasons can include preventing risk of harm to a child through the impact on her primary carer (as might be argued where a mother is in treatment for post traumatic stress disorder as here).

• Judges can also bar further applications without prior permission of the judge to avoid further unsettling the family.

• Judges must follow this essential ‘practice direction’ wherever domestic violence or abuse features (Family Procedure Rules, Practice Direction 12J) and lawyers are expected to be well aware of its’ requirements.

• By the time of the recent application for letter box contact reported by the Mirror, evidence of severe abuse, violence and risk were firmly proven “beyond all reasonable doubt” by way of the criminal conviction.

But if this isn’t the case a family court Judge must consider an early ‘fact finding hearing’ to determine, on whatever evidence is available, whether the allegations are true, at the lesser civil standard of “more likely than not”, so as to take proper account of them in deciding future risk and what order to make. (Here, if there was in fact an earlier family court case leading to a contact order, at a time when the police had decided not to prosecute, the question arises as to whether a fact finding hearing took place and if not why not. See this blog at Child Protection Resource for more on the different standards of proof.)

• Whilst indirect (or letter box contact) can be used to establish or re-establish contact with the possibility of more contact in future, it is also often used as a final order where there is no such intent or the opposite intent. (We don’t know here whether a final order has been made. It may be that letter box contact is “it” for this case.

• Legal aid is available for women who have been victims of domestic abuse, if they are financially eligible. Sometimes this can be difficult to evidence or obtain. There is a useful summary of the legal aid rules here. We don’t know if Karen Lee was legally represented. If she was we would expect her to have been advised on any grounds for appeal, including against any interim orders.

• Rights of Women offer a free telephone advice line staffed by experienced family lawyers and legal officers on these and other issues that can be accessed here.

. It may also be possible to get your case referred to a free scheme that can provide a barrister to represent some people at court hearings where they are not eligible for legal aid, called the Bar Pro Bono Unit

Some organisations such as Women’s Aid have expressed concern that poor decision-making in such applications is endemic with an attitude of ‘contact at all costs’. (See the ‘Nineteen Child Homicides’ Report 2016 here). Others have suggested the situation is more complicated than this and difficult to extrapolate from individual cases with very limited information. (See Lucy Reed here).

Publication of family judgments (suitably anonymised) arguably has a real role to play in promoting greater understanding of these critical issues. It is unlikely that we will see a published judgment in this particular case as it is being dealt with at district judge level and such judgments are rarely published, although the fact that the case has reached the mainstream media as a result of the criminal conviction may persuade a judge to publish if satisfied that the child can be properly protected.

The Transparency Project intends to publish a detailed Guidance Note soon about how allegations and evidence of domestic violence and abuse are treated in the family courts through funding recently granted by the Legal Education Fund.