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Griffiths v Griffiths (Guidance on Contact Costs) [2022] EWHC 113 (Fam)

Arbuthnot J allowed an appeal against an order for direct contact made by the circuit judge at the DRA on the basis that the judge had not given sufficient reasons when dealing with the requirements of PD12J. She also considered the courts power to direct who should pay the costs of contact supervision and how the court should allocate responsibility when there had been findings of domestic abuse against the person seeking contact.

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Although the proceedings concern a child the parents have been identified following the decision of the Court of Appeal in Griffiths v Tickle and others [2021] EWCA Civ 1882 in which the Court of Appeal upheld the decision of Lieven J to allow identification of the parents in a fact-finding judgement. Mrs Griffiths had established that she had been the victim of domestic abuse including rape, physical assault and coercive and controlling behaviour by Mr Griffiths during their marriage.

The parents separated in 2018. The father was having contact in 2019 by agreement. He applied for an order in June 2019. Contact was ordered in a contact centre. The father was to pay the costs. The father applied to change the arrangements including the costs as he was unemployed, and the mother had an income. In May 2020 it was ordered that the costs should be shared equally. Direct contact was in fact suspended by the effects of lockdown from March 2020 to September 2020, when it resumed. The fact-finding took place in November 2020 before HHJ Williscroft and the mother's allegations were proved. Direct contact stopped in December 2020 because of the 2nd lockdown.

In preparation for the DRA Cafcass reported. It supported the resumption of contact if the centre felt able to protect the child following a risk assessment. The risk assessment by the centre was positive. The DRA which had been delayed took place in front of HHJ Williscroft. She ordered that the direct contact resume at the centre (subject to a risk assessment) on the same terms as to payment and directed a psychological assessment of the father. Indirect (Facetime) contact was to occur weekly. The mother appealed the decision to order the resumption of direct contact, the refusal to stop the indirect contact and the direction that she should pay the costs. Lieven J gave permission to appeal but refused to discharge the indirect contact order pending appeal.

Arbuthnot J identified 3 questions. First whether in principle a court has the power to order that a party pay for contact under section 11(7) of the 1989 Act. Second, whether the Judge was wrong to order direct contact in the particular circumstances of this case and third, whether a victim of abuse should pay the costs of contact for the abuser to have contact with the parties' child.

She rejected the mother's argument that there was no power to order a party to pay the costs of contact. She held that s11(7) Children Act 1989 gives the court the power to make such a direction [Paras 55-57].

In answering the second question the judge concluded [para 83] that the judge had allowed herself insufficient time (it was a 1 hour listing) to properly consider and explain how she had applied  the relevant parts of PD12J and in particular relate them to the findings of harm made at the fact-finding [para and the emotional impact on the mother of the arrangements for direct contact [Para 107]. In essence the judge's judgment did not disclose the necessary detailed reasoning which PD12J requires to justify reinstating direct contact at the DRA [paras 103, 110-111]

However, Arbuthnot J rejected the argument that the circuit judge was wrong to allow indirect contact to continue. There was an established relationship between the father and the child and the impact of connecting a Facetime call was different to attending a contact centre. [Para 112].

Although it was argued that as matter of principle a victim of abuse should never be ordered to pay the costs of the child having contact with the abuser and that doing so continued the abuse and coercive control, Arbuthnot J's conclusion on the third question was more pragmatic. Although Arbuthnot J could not envisage a situation where a court would order the victim to share the costs of contact, [para 130], she was wary of giving guidance which might be too narrow to deal justly with the facts in another case. With that caveat she commented at [paras 131-132]

"131. First, there must be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser.

132.  Second, if, wholly exceptionally, the court has to consider this, the matters a court might want to take into account could include the following:

a. The welfare checklist including the age of the child

b. The factors in PD12J.

c. The nature of the abuse proved or admitted, and the parties' conduct that the court considers relevant

d. The impact of the abuse on the caregiver with consideration as to whether any payment would give rise to financial control

e. The extent of the relationship between the child and the abusive party

f. The nature of the section 8 order made

g. The parties' financial resources

h. The cost of the contact

i. Whether, if the contact is in the best interests of the child, it would take place without a sharing of the costs."

Arbuthnot J set aside the order for direct contact and the mother's obligation to pay for the contact and directed that the issue of direct contact should be reconsidered and then if the issue of costs of any contact is raised the guidance (above) should be applied.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII