Children’s contact with father in prison – who decides?

Z v Z (Contact in Prison) [2021] EWFC 47 (07 June 2021)

This case concerned two children aged 16 and 14 whose father was in prison after being convicted in 2012 and sentenced to 26 years for really serious sexual offences against children, including possession of 20,407 images ranging from Level 1 to Level 5 on the COPINE scale (“Combating Paedophile Information Networks in Europe” – a scale used to measure the severity of child sex abuse images). The children hadn’t seen him since his arrest in 2011 – they were initially told he was working abroad. The father protested his innocence but the Judge commented at sentencing that he was ‘devious and manipulative’ and posed a serious risk. The father was subject to a Sexual Offences Protection Order which placed serious limitations on his contact with children, even his own.

The father wanted to have contact with the children. He applied for both direct and indirect contact but by the time the matter came to court, the argument was about indirect contact which the mother and the Children’s Guardian supported. However, the Prison Governor did not, citing public protection and suggested that the prison might not facilitate contact even if was ordered by the Family Court as being in the children’s best interests. Therefore both the Prisoner Governor and the Secretary of State of Justice became intervenors in the case.

In public law proceedings in May 2012 the court made what appeared to be a final order, prohibiting the father from having contact with the children and even directed the mother’s solicitors to write to the prison to say there should be no contact from the father to the children, mother and maternal grandmother. The father requested in 2016 to be allowed contact and an assessment in 2017 recommended indirect contact. The prison then undertook a multi agency risk assessment and refused to permit ANY contact between father and children. The prison were not clear how the indirect contact could be managed and noted that the mother shared the father’s belief in his innocence. The prison tried to clarify the terms of the final order of May 2012 and whether contact between the father and children would be a breach of its terms.

But in March 2021 the prison confirmed they were NOT in agreement as the risks were just too high – the father had not undertaken any work to address his understanding of his offending, the mother did not provide a safeguard and the children were arguably more vulnerable to grooming now as teenagers. The father was described as ‘dangerous and predatory’. The prison went so far as to say that even if contact was ordered, the prison could not facilitate it as contrary to public protection and prison policy. The mother argued that the children understood the severity of the situation and the need to safeguard themselves; they understood about grooming and in any event would fairly soon be able to have contact as adults.

What approach did the court take?

The court recognised that this subject matter was likely to generate strong views. But the task of the court was to decide if indirect contact was in the children’s best interests, considering the welfare factors set out in the Children Act 1989 section 1(3). No one argued that the children and the father did not have a right to a family life so any breach of that would have to be proportionate.

The next question was whether the Family court could compel a prison governor to comply with an order to facilitate contact with a child and a serving prisoner. The answer to this question was ‘no’ – to do so would be inconsistent with the terms of the Children Act and the wider statutory scheme relating to the management of prisons and prisoners. In essence, the Family Court cannot make a contact order against a public body. This position was set out in Re M (Children) (Contact: Enforcement of Foreign Order) [2018] Fam 230. Parliament granted the Secretary of State of Justice control over prisons – see the Prison Act 1952 and the Prison Rules 1999 (as amended by the Prison (Amendment) (No.2) Rules 2000.

The Secretary of State has a discretion to permit a prisoner to communicate with any person outside the prison and to receive communications and also the power under s34(1) of the Prison Rules to restrict such communications if it is necessary, on the grounds of public safety, the protection of health or morals. Such discretion must be exercised proportionally.

Other relevant statutes are the Children Act 2004; section 11 places a duty on prison governors to safeguard and promote the welfare of children. Under s325 of the Criminal Justice Act 2003, the governor has a duty to assess and manage the risk of violent and sexual offenders. Rule 4 of the Prison Rules 1999 also provides for respect to the need for special attention to be paid to maintaining the relationship between the prisoner and his family.

Within this context, the National Offender Management Service Public Protection Manual 2016 stipulates that it is ultimately the prison governor who makes the assessment as to whether contact is safe, and will examine static and dynamic risk factors.

The case law also demonstrated where the boundary between the jurisdiction of the Family Court and the jurisdiction the Secretary of State – for example in CF v Secretary of State for the Home Department and another [2004] EWHC 111 (Fam), Munby J (as he then was) recognised that the court did not have power to determine if a mother was allowed to remain in prison with her child.

None this prevents the Family Court making an order for contact but the implementation of any such order cannot displace the statutory powers of the Secretary of State for Justice. The fact that the Family Court has made an order will be a ‘significant and relevant consideration’ for the Secretary of State, through the prison governor but the final decision as to whether and how the order is implemented will rest with the Secretary of State.

It is possible to challenge a decision to refuse to facilitate contact via judicial review – see Westwater v Secretary of State for Justice [2010] EWHC 2403 (Admin) where the initial risk assessment was held to be inadequate.

The court decided that it was in the children’s best interests to make a contact order – they both expressed the clear view they wanted to see their father. They had demonstrated some understanding of their father’s offences and why he was in prison. They did not have a dogmatic view of his guilt or innocence. Both were aware of the risks of child sexual exploitation. The court found that both children had an emotional need for some contact with their father, both being at the stage in their development when they are able to question their identity and explore who they are. In particular it was important that they be given the change to have such contact now, before reaching the age of 18 when they would not have the support proposed while they remain children.

The court did not however make a final order – not as an attempt to influence the governor, who had helpfully indicated a further review of the position re contact, but to recognise that if the contact order was not implemented then the court might need to further consider the children’s welfare.

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