Pay per view? Family court orders for the costs of contact

KEYWORDS:

• Child arrangements
• contact
• costs of contact
• domestic abuse
• PD12J

Can the family court make orders for a party to pay the costs of contact? Should a victim of domestic abuse be ordered to pay towards the costs of the perpetrator of the abuse spending time with their child? It may feel instinctively wrong that a victim is ordered to pay towards the costs of contact, but until the recent case of Griffiths v Griffiths [2022] EWHC 113 (Fam), not only was there no guidance about if and when this may be acceptable, but there was also no case law on ordering parties to pay the costs of contact. The short answers are that yes, the court can make orders in respect of the costs of contact generally. Further, as a result of this case, there should now be a strong presumption against ordering the victim of domestic abuse paying for the contact of their child with the abuser.

The case concerns an appeal by the mother against a decision made by HHJ Williscroft at a Dispute Resolution Appointment (DRA) that the father should have supervised contact in a contact centre and that she should contribute towards the costs of that supervised contact. The case also considers the proper application of PD12J where findings of abuse have been made, and there is the question of whether and how direct contact should be ordered between a child and the perpetrator of the abuse.

In this case, the DRA followed a fact-finding hearing, also before HHJ Williscroft, where the mother’s allegations against the father were proved. These included her rape and sexual abuse, a pattern of coercive and controlling behaviour towards her and the mother being physically and verbally abused by the father. Prior to the fact-finding hearing, it was ordered that the father would spend supervised time with the child at a contact centre. Initially the father paid for the twice weekly sessions of two hours. At a later hearing (also prior to the fact-finding), this was amended so that the costs were shared equally between the parents. At the DRA in question, the court ordered that (subject to a risk assessment and psychological report on the father) direct contact between the father and the child should resume. Further, it was ordered that the mother would pay towards the costs of this contact. In addition to the issues of the costs of contact, the appeal addressed the proper application of PD12J.

Whilst there was previously no case law on contact costs, it is unsurprising that Arbuthnot J decided that family courts can order parents to pay for the costs of having contact with their child. Given the wide ranging powers available to the court under section 11(7) of the Children Act 1989, it would seem sensible that such an order was within its scope. On a more practical level, there could be widespread stasis in private law proceedings up and down the country if the High Court had decided that courts could not order this. In cases where there are allegations of domestic abuse, ordering supervised or supported contact pending the outcome of a fact-finding hearing and/or a section 7 report is one of the few ways a court can meet the PD12J paragraph 25 requirement to enable interim contact between a parent and child. Cases with such allegations occur in over half of all private law applications (Barnett 2020, p. 20). When friends or family cannot offer the requisite supervision, such contact comes with a cost and is not cheap: it is not unusual for an hour of supervised contact to cost between £50 and £100 per hour.

The potentially more interesting question is whether a parent who has been found to have been the victim of domestic abuse should be ordered to pay towards the costs of the perpetrator of that abuse having contact. For those who argue that family court proceedings are retraumatising (Domestic Abuse Commissioner 2021, p. 6), or allow for the perpetrators of abuse to continue that abuse from a distance (Thiara and Gill 2012, p. 15), any determination that a victim must pay would add weight to that contention. In the case of costs of contact, a line has now been drawn to prevent this.

Arbuthnot J suggests that it is unusual and probably unique that a victim of abuse is being asked to pay for contact costs (paragraph 125). Anecdotally, some practitioners dealing with such cases may seek to disagree: arguments on who pays for supervised contact are not uncommon. To that end, this case adds significant value in establishing ‘a strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser’ (paragraph 131) and continues to give guidance on the matters a court must consider if, exceptionally, a court must consider the potential for a victim to contribute to those costs (paragraph 132). These matters are broad and include the welfare checklist, the abuse in question, the nature of the section 8 order, the costs of the contact and the parties’ financial resources.

The case also addresses the ability of courts to properly apply PD12J to the matters coming before them. It is apparent that even experienced judges can fail to knit together all the requirements of PD 12J paragraphs 35–40, particularly the impact of those findings with the welfare of the child and decision about future contact. Here, Arbuthnot J reflects the comments of the President in the case of H-N and Others (children) (domestic abuse: findings of fact hearings) [2021] EWCA Civ 448: the issue is not the structure of this provision, but the ‘challenge relates to the proper implementation of PD12J’.

In addition to the judgement’s importance at the intersection of issues of the costs of contact and the proper implementation about PD12J, this case is useful for academics and practitioners in providing a window into the state of the family court. Here is a case where on appeal both parties were represented by Counsel. Further still, there was the rarity of a rule 16.4 guardian in the matter who was also represented. At the time the time of the DRA, only 19% of private law cases had full representation (Ministry of Justice 2021). If judges sitting in private law cases are unable to fully grapple and implement PD12J when there are lawyers before them who have articulated the issues, tested the evidence, and argued the case on the law and the facts, what happens when lawyers are not there? Despite the prompts that exist on forms such as the C100, as this case illustrates, many victims do not want to raise issues of domestic abuse at the start, even if they do realise their relevance and can articulate them (Hunter et al. 2020, p. 65). Further, the President has set out that issues in cases will be limited only to those which are necessary to dispose of the case (President of the Family Division 2020, p. 11). As a result, there are significant barriers faced by litigants in person in even reaching a fact-finding hearing, never mind being capable of testing evidence to the point where findings are made (Hunter et al. 2020, p. 102).

Beyond this, one of the issues on appeal in this case was whether the judge had taken sufficient time to hear the matter at the DRA, consider the issues and apply the law. As judges face an ever-increasing demand on their time, faced with a litigant in person population, are they being given a fair chance to deal with the cases which come before them? As a final note, whilst the notion of who pays for a contact centre may not seem at the higher end of academic family law, it is the crucial reality for many parents at the business end of the family court.

Disclosure statement

No potential conflict of interest was reported by the author(s).