What is the evidence base for orders about indirect contact?

This is an article by Sarah Phillimore and Families Need Fathers. It was first published in the May edition of the Family Law Journal and is reproduced here with acknowledgment and thanks

Indirect contact: on what basis do such orders promote the welfare of children?

This article examines the evidential basis supporting orders for indirect contact to provide a mechanism whereby direct contact may at some point resume. The authors are concerned that this ‘wait and see’ strategy at best achieves nothing and at worst is actively harmful. They call for better research about the impact of indirect contact in cases of entrenched opposition, and greater willingness to consider psychological intervention at earlier stages.

For the purposes of this piece, ‘indirect contact’ is defined as letters, cards, emails – usually at specified times or events.

There are many reported cases where parents (usually fathers) are refused direct contact in private law proceedings. A recent one is R (a child – appeal: termination of contact) [2019] EWHC 132 (Fam) (29 January 2019). Here the court was initially prepared to refuse direct contact, even having accepted that the child would then be parented solely by his mother:

‘… who had been identified not only as having caused emotional harm to him through her alienation of him from his father but also and as significantly whose parenting was identified as creating an enmeshed relationship where R was unable to developmentally separate, to develop his own identity separate to that of his mother.’

The appeal was allowed in essence because (para [77]):

‘… the combination of the consequences of the findings of fact that had been made and the lack of full exploration of the options available (in particular in relation to therapy for the mother) meant that the end of the road had not been reached.’

Therefore the appellate court was ready to take a stand in a case where a finding had been made that the resident parent had caused emotional harm by alienation. But what about the presumably greater number of cases where no such clear finding is made against either parent?

Where there is no clear finding against either parent

I recently represented a father in such a case on his application for permission to appeal a refusal to make an order for direct contact. The child was born in 2007.and in 2010 the court made findings against the father of behaviour that was unpleasant but not sufficiently serious to rule out direct contact, Such contact was positive until 2011 when it ceased, the child demonstrating increased anxiety until eventually claiming to have no father at all.

The father’s position was that this was nothing to do with the quality of his relationship with his son but rather that, from the outset, the mother was ‘entrenched’ ‘ in her opposition to it. NYAS and Cafcass intervened, the court suggested that the mother undergo therapy and she had some kind of counselling, but nothing shifted.

Throughout, the court adopted the ‘wait and see’ strategy, in the hope that ‘time would heal’ and the indirect contact would blossom into direct contact. In 2015 the father’s appeal was before the full Court of Appeal who shared his concern about this strategy and noted that if it continued to fail, then expert evidence ought to be considered. The father subsequently applied for a psychological assessment of the mother.

By the time that application came to court in 2016 the child could not contemplate even discussion about his father; the applications for further expert evidence was refused. The father appealed again but in 2017 that appeal was dismissed, the Court of Appeal agreeing that continuing the proceedings was not in the child’s best interests. The father continued, with his now decade long battle which finally ended in October 2018 where Mr Justice Moor refused permission to appeal against the final decision at first instance to refuse direct contact.

The client perspective

I asked my client for his views.

‘The non resident parent usually, sooner or later, comes to a point where they see their attempt at trying to maintain contact with their child as futile. This point can be reached even before contemplating making a court application when told by those familiar with the cycle of the family justice system that it is unlikely they will maintain contact where the non resident parent opposes it, sometimes it takes one year of court attendances and going to contact centres, sometimes it takes many years before a parent gives up or is forced to give up, the system is designed to make maintaining contact as difficult as possible.
… At the last contact session my Son said “see you next time” he waved as he left, I have not seen him for seven years now.
… Where it is clear the resident parent will never support the child to have a meaningful relationship with their parent it is essential that the Judges order direct contact….It should be acknowledged by the Judges that indirect contact merely supports an entrenched resident parent’s ability, either deliberately or incidentally, to also entrench the child’s views against the other parent, indirect contact makes matters worse.’

This case appeared to me a clear example of the failure of the ‘wait and see’ strategy when one parent was entrenched in opposition. I could find no research or other literature which offered any evidential basis for this as a successful strategy. I therefore I asked Families Need Fathers if they could conduct a survey of their members.

The FNF survey on indirect contact

FNF conducted a survey of 154 service users, (95% dads), who had final orders for indirect contact only.

In just one case (0.6%) was direct contact restored, seemingly, without further intervention in a situation where the indirect contact order was mostly complied with.

Three others reported direct contact resuming, but not attributable to factors beyond indirect contact. In one case a direct relationship was re-established through the intervention of an elder sibling. In another, direct contact was established following a successful appeal and in one more through a change of residence.

Almost universally (97%) respondents said that these orders were made in response to implacable hostility towards them from the parent with whom the child lived.
In most cases (58%) someone in a position of authority specifically suggested that given time things might settle down and lead to the restoration of visitation. Cafcass were the most likely to express such optimism (37%), as did a third of Judges (34%) either in the final order, in a final judgement or both.

In the vast majority of cases (92%) the orders made included a requirement for the children to be supported in responding to letters or gifts received. However, 79% of respondents said that they ‘never’ received a response, 13% did so rarely or occasionally and just 4% reported full compliance.

Many expressed doubt that their correspondence was reaching their children at all. In one case a father who always sent gifts for his daughter’s birthday and at Christmas, reported evidence that the mother was writing brief ‘thank you’ cards for receipt of gifts purporting to be from the child so as to give the appearance of compliance with court orders.

Clearly this survey is not based on a scientifically balanced sample, but these figures suggest that parties are being offered false hope in spades with virtually no prospect of a positive outcome during the children’s minorities. Not surprisingly, some respondents, in hindsight, considered that they were being fobbed-off with hope for the convenience of the Courts or Cafcass – perhaps to make the figures of duration of proceedings look better against targets or to save their money by not exhausting all possible routes to a solution. Many expressed frustration and disappointment at the lack of stronger interventions by the courts to ensure any meaningful contact.

The low level of compliance with these orders and lack of enforcement of family court orders, precisely in the more hostile situations where it is most needed, has led to infinitesimally low levels of successful outcomes. Perhaps we need to remind ourselves that these are situations where courts were satisfied that contact was not only safe, but also best served the welfare interests of the children.

Personal stories

Dozens of respondents shared their stories of personal devastation. Several had contemplated suicide and one grandparent had done so. Two spoke of suffering from Post-Traumatic Stress Disorder, others described other consequent stress on them and their families:

‘I felt – and still feel bereft. I have struggled with my mental health since then; I am on anti-depressants and sometimes cannot work because I haven’t slept in days. My wife holds me through the night when I am crying and missing my children and I wonder who holds them when they cry that they are missing me.’

Some parents agreed that indirect contact, where correspondence was received, at least informed a child that the other parent continues to love them and has not abandoned them. However, should relationships then be restored in adulthood, it does not take away from damage done. The internal ‘wiring’ of the brain is set. The relationship may be all but extinct. This suggests that indirect contact should be used only as part of or pending a plan of intervention, to restore meaningful relationships.

Family courts are there to weigh up the evidence in determining the best interests of children. Many respondents expressed the view that ‘hope’ is an inadequate basis for meeting children’s welfare needs; doing nothing may merely create the fragile illusion of calm for children. Respondents were convinced that it would be a mistake to assume that children are not being harmed whilst living in an environment that denigrates half of their family. Inevitably, the comments made to us suggested not only a deep frustration with family justice, but concern at the lack of support for children left harbouring false perspectives and unjustified hostility to once-loved parents. Respondents’ experiences also demonstrated the lack of support for themselves when court proceedings were over without a satisfactory outcome. One father, who had withdrawn his application on advice from CAFCASS after the mother promised to ‘de-escalate’ the situation, said this:

‘In the last phone call I had with my daughter, she told me that she remembered loving me once, but “luckily I have been allowed to stay away from you and now I realise only an insane person would want to see you.”’

Father who withdrew court application for direct contact on advice from Cafcass and promise of de-escalation by the mother.

Conclusion: The need for proper research

It was the view of the (now) President of the Family Division in the 2017 Bridget Lindley Memorial Lecture that judges need better information about outcomes – without information about outcomes, Judges were left trying to hit a bullseye by throwing a dart over their shoulders.

If indirect contact is to be relied upon as a mechanism to restore direct contact, then we need proper research about this. Currently data on Child Arrangements Orders does not even distinguish between orders for direct and indirect contact. There is, we suggest, a need to consider proper psychological intervention about how to break entrenched parent deadlock and more willingness to consider change of residence.

It is the view of the authors that it is clear that mere passage of time is highly unlikely to ‘heal’ entrenched opposition – rather it is likely to cement it, particularly as many fathers cannot simply sit and wait as years go by with no direct contact.

Michael Lewkowicz
Families Need Fathers
Sarah Phillimore
St Johns Chambers Bristol

5 thoughts on “What is the evidence base for orders about indirect contact?

  1. Brian

    Reply from Cafcass to an FOI request:

    Thank you for your email of 16 April 2016. You made the following requests for information:

    For each of your offices in each of the years 2006, 2007, 2008, 2009, 2010, 2011,
    2012, 2013, 2014 and 2015 please indicate:

    1) In how many Private Law cases did Cafcass recommend direct contact with a
    2) In how many Private Law cases did Cafcass recommend indirect contact only with
    a parent (i.e. no direct contact)?
    3) In how many Private Law cases in 2 was the recommendation for indirect contact
    only followed by the court?
    4) In how many Private Law cases in 2 did indirect contact subsequently lead to re-
    establishing of direct contact with the parent who had indirect contact?

    Cafcass makes recommendations to the court for how a child’s welfare and best interests
    can be promoted and safeguarded. All Cafcass recommendations are based on professional
    judgement of how a child’s welfare can best be promoted and safeguarded, with reference to
    the Welfare Checklist, and all recommendations are case specific. It is the court, and not
    Cafcass, that makes decisions about contact. In accordance with Government policy,
    Cafcass supports children maintaining a meaningful relationship with both parents, where it
    is safe and in the best interests of the child to do so.

    We are unable to provide responses to your requests for information. Cafcass does not
    collect information on individual recommendations centrally; these will be held in each
    individual case file within the court report. In order to provide a response, each case file
    would need to be checked individually; as Cafcass handles tens of thousands of cases

    Baroness Tyler of Enfield Chair
    Anthony Douglas CBE Chief Executive

    Summary – they don’t have any data to indicate how often they recommend indirect contact, how often that is taken up by the court or how often it actually results in re-establishing direct contact, yet they continue to make these recommendations.

    1. Sarah Phillimore Post author

      Thanks Brian. Depressing but not surprising. I think the one thing we can ALL agree on is that we need proper data if any ‘inquiry’ in the family justice system is going to bear any kind of fruit.

      1. Brian

        Cafcass recommending “Indirect Contact” has all the scientific and evidential basis of doctors prescribing leeches.

  2. Angelo Granda

    I would like to make the point that the problems around indirect and direct contact do not only occur where there are disputes between ex-partners. Deliberate alienation is common practice when children are looked after too. The L.A’s often do their damndest to discourage useful contact with natural parents. This policy starts as soon as FCO’s are issued when contact is reduced as a matter of course usually to 2 hours every three months in my experience.
    When children are in foster-care, often CAFFCASS have no involvement whatsoever and the sole arbiters are the SW’s and obviously they follow policy imperatives , set the agenda at LAC reviews etc.
    Foster Mums also seem to prefer to discourage any contact direct or indirect because it makes it easier for themselves ; they often demonise parents and set children against them.
    The process of alienation is not subtle. No matter how distressed and unhappy children are to lose their real Mums and Dads and regardless of children begging to go home to them, it will be constantly reported at reviews and to Family Courts that they are happy ,settled and thriving in care despite real deterioration.
    When parents apply to the Family Court for increased contact or for transition ( rehabilitation) plans CAFFCASS do become involved in the case but ,as usual, they fall for the official line every time. Of course ,the Courts themselves aren’t to be trusted for the usual reasons.

  3. Angelo Granda

    May I add that it in most , if not all, cases the children do not attend reviews ever and the supposedly independent LAC chairpersons never see or hear them together with parents at contacts; they just visit the children occasionally at the foster-homes. In that situation, children are unlikely to go against their foster-parents.
    Indirect contact is discouraged once the FCO’s are operative.
    Why? It is to alienate families , to liquidate them. LAC reviews are something of a sham and the welfare interests of the children secondary to L.A. policies which are essentially exploitative and in their own interests.

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