ANNEX A – FURTHER DETAIL ON FAMILY JUSTICE PROVISIONS: Example 3
734.Parent A and Parent B are married and have one child together. Parent A left the marital home and Parent B refuses to let Parent A see their child. Parent A wants to be able to see the child at the weekends. Parent A applies for a [child arrangements order] that sets out that the child should stay over with Parent A from Saturday evening until Sunday morning.
735.Parent B alleges that Parent A has a history of emotionally and physically abusing Parent B and the child. Parent B alleges that Parent A cannot be involved in any way in the child’s life without posing a risk of harm to the child. The section 7 welfare report from Cafcass confirms that this is the case and confirms that Parent A has caused such harm to the child in the past that the child feels extremely distressed at the thought of any contact with Parent A. There is also an allegation before the court that Parent A has sent the child threatening letters which also contain abuse levelled at the child. Parent A disputes this account. The court decides, after a consideration of all the evidence, that the prospect of any contact with Parent A would pose a risk of harm to the child and concludes that it is probable that even indirect contact in the form of letter writing would harm the child. The court therefore decides that the presumption does not apply.
736.Parent A’s lawyer argues that Parent A has rights under Article 8 of the ECHR which should mean that some form of contact should be ordered. The court balances the Article 8 rights of Parent A against those of the child and Parent B and follows Strasbourg jurisprudence which holds that when there is a conflict between Article 8 rights, the child’s rights prevail.
737.The court makes its decision, weighing the fact that the presumption does not apply to Parent A alongside the other considerations in section 1 of the Children Act 1989, with the child’s welfare remaining at all times the court’s paramount consideration.