Ms Najma recently acted for her client in an application for a Child Arrangements Order under s.8 Children Act 1989. Section 8 deals with all orders with respect to the welfare and contact arrangements for children. These can be for:
- A Child Arrangements Order (where they will live, spend time with, have contact with and the same when they are with any other person who is not their parent or guardian)
- A Prohibited Steps Order (preventing a parent from taking particular action without the consent of the court)
- A Specific Issue Order (directions for the determination of a specific question in relation to the parental responsibility for a child)
The facts of the case:
The father was making an application to spend time with his son under s.8 Children Act 1989. The child’s mother lives in the UK with the child and her and her son have been granted asylum for five years. The father lives in Pakistan and had previously resided in the UK. Ms Najma acted for the mother in this application.
The application before the Court was to determine if the father should be permitted time with his son going forward and if this contact should be supervised. The father sought clarification as to whether he could take his son on holidays to Pakistan, or in the alternative, permission to travel to the Netherlands, when he relocates there in the near future.
The relationship between the mother and father was an unhappy one with physical and emotional abuse taking place which involved regular physical violence.
This application correlated with an asylum claim which commenced as a result of the mother’s attempt to flee permanently from the abusive relationship. The mother’s concern was that if contact was unsupervised, the father would remove their son and take him to Pakistan. Assurances were provided that the father would not travel with his son to Pakistan, that his passport could be held by solicitors, and that the father will not apply for any travel documents for his son.
The effect of domestic abuse on s.8 Children Act 1989 applications
Part of the role of the court is to identify and assess the risk of harm in domestic abuse cases.
The risk of harm in such cases is materially important when considering the impact on the children involved, and the effect this harm can have on them. The court has a duty to protect the children from potential harm and that section 1(1) Children Act 1989 mandates that the child’s welfare is the Court’s paramount consideration.
Where there is a case of domestic abuse, the court must consider the behaviour between the parents, and towards the child. It is also duty bound to weigh the need for parental contact with the effect of the domestic abuse on the child and their relationship with the parents, the likely continuing behaviour, and the effect of past violence on the child.
Section 1 of the Children Act 1989 provides a framework that encourages both parents to be involved in the child’s life, unless this is contrary to the best interests and welfare of the child. However, this involvement does not need to be equal and is often not as such. Of particular importance are the physical, emotional and welfare needs of the child, any harm suffered or the risk of suffering.
In this case, whilst the father provided expert evidence as to a lower risk of harm, Ms Najma successfully rebutted this, and the court decided to reject the evidence submitted from his expert. The Court, in applying the framework, upheld that contact should be maintained albeit with supervision and that this should reviewed with the aim of non-supervised contact when this is appropriate.
Notwithstanding the aspect of domestic violence as between the parents, the Court recognised that the needs of the child included continuing contact with both parents.