The High Court considered this recently in the case of Griffiths v Griffiths (Guidance on Contact Costs) [2022] EWHC 113 (Fam). This was a case where the father, who has recently been identified following the decision of the Court of Appeal in Griffiths v Tickle and others [2021] EWCA Civ 1882, as Andrew Griffiths, a former conservative MP, submitted an application to the Family Court in Derby in June 2019 for a child arrangements order, seeking direct contact with the parties’ child. The mother, Kate Griffiths MP, opposed the application and raised very serious allegations of domestic abuse against the father. An order was made in July 2019 for the father to have supervised contact in a contact centre once a week and he was ordered to cover the costs of this in full. Some eight months later, contact was suspended in March 2020 due to the Covid-19 pandemic, and the father’s contact was changed to indirect video contact. Shortly after this, the father applied for the costs of the contact centre to be met in full by the mother, once the contact centre reopened, as he was unemployed at the time, and the mother had recently been appointed as an MP. An order was made in May 2020, amending the July 2019 order so that the costs of the contact centre were to be shared equally between the mother and father. Direct contact was then reinstated in September 2020 when the contact centres opened again.

A fact-finding hearing took place in November 2020 and findings were found about the father’s behaviour towards the mother which included rape and sexual abuse, a pattern of him controlling and behaving coercively towards her and her being physically and verbally abused by him. There were also findings that the father physically abused a relative. The father did not appeal any of these findings. Despite these findings being made, and the mother subsequently applying to suspend the father’s direct contact pending the outcome of a psychological assessment of him, the Judge ordered at a hearing in June 2021 that direct supervised contact should resume once the centre manager had completed a risk assessment of the father and that payment of the contact centre fees would remain as mentioned above, i.e. split equally between the parties.

The mother applied for permission to appeal this order on the following 4 grounds:
Ground 1: the Judge was wrong to order that the mother, a victim of rape, share the costs of supervised contact with her rapist, the father. This was wrong in principle, against public policy and breached the mother’s and the child’s Articles 8 and 14 rights. It is wrong in law for the family courts to interpret widely section 11(7) of the Children Act 1989 to the extent that a party is directed to pay for the costs of contact.
Overlapping with Ground 1 was Ground 2: the law as presently interpreted by the family courts in permitting a rape victim to be ordered to pay a rapist’s contact costs was in breach of the mother’s Articles 8 and 14 Convention rights.

Ground 3: the Judge was wrong to order direct contact and did not apply paragraph 36 of Practice Direction 12J, in failing to consider the short, medium, and long-term harm of contact on the mother and the child and the judge failed to consider at all the father’s capacity to appreciate the effect of past domestic abuse as per paragraph 37(e) of PD12J.

Ground 4: the Judge was wrong in failing to apply paragraph 40 of PD 12J and to explain by way of reference to the welfare checklist and the factors in paragraphs 36 and 37 or otherwise why she took the view that domestic abuse having been proven, contact with the perpetrator would not expose the child to the risk of harm and was beneficial for the child.

Mrs Justice Lieven granted the mother permission to appeal the order but refused to discharge the child arrangements order pending appeal. The appeal was heard before Mrs Justice Arbuthnot (Arbuthnot J) who identified three questions relevant to the appeal:-

1. Whether, in principle, a court has the power to order that a party pay for contact under s11(7) of the Children Act 1989;
2. Whether the Judge was wrong to order direct contact in the particular circumstances of this case; and
3. Whether a victim of abuse should pay the costs of contact for the abuser to have contact with the parties’ child.
   Firstly, Arbuthnot J rejected the mother’s argument that there was no power to order a party to pay the costs of contact, explaining that it is clear from section 11(7) Children Act 1989 that this section was intended for the court to have a wide discretion to enable it to give directions the court feels appropriate in respect of the costs of contact centres.
   Arbuthnot J considered that the Judge who ordered the direct contact in June 2021 did not allow herself sufficient time to determine the issue of interim contact, which was disputed by the parties, but the hearing was only listed for one hour. She determined that the hearing should have been adjourned to another day with a longer listing to allow for proper consideration of the relevant considerations arising from the application of PD12J. In particular the emotional safety of the mother, before ordering the resumption of direct contact and how the findings she had made at the fact-finding hearing influenced her decision on contact. Arbuthnot J accepted that the father had a long-standing relationship with the child via both indirect and direct contact, but given the findings made, and the failure to consider PD12J appropriately, direct contact should not have been ordered at the June 2021 hearing.
   The Judge then went on to explain that although she could not envisage a situation where a court would order the victim to share the costs of contact, she was wary of giving guidance that is “too narrow” to be applied in other extraordinary cases in the family courts. She provided guidance for the costs of contact in relation to cases where abuse has been found or admitted which is set out below:-
   • First, there must be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser; and

• 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 (set out in the judgment)
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 (declared invalid) the previous order for direct contact and held that this would need to be considered further once a psychological report of the father had been obtained and that relevant consideration would need to be given to PD12J. The mother was not ordered to contribute anything towards the costs of the contact centre. The Judge held that if contact is directed in the future, then the guidance as set out above would need to be applied.

The Judgment can be found here https://www.bailii.org/ew/cases/EWHC/Fam/2022/113.html

Separately, following applications by journalists, Louise Tickle and Brian Farmer, the High Court granted permission for the fact-finding hearing to be published with the names of the father and the mother included, given that the parties are public figures. The father appealed this decision, accepting that the judgment could be published, but maintaining that he and the mother should remain anonymised. The Association of Lawyers for Children were granted permission to intervene on appeal and were represented by TV Edwards LLP.

Should you need advice on domestic abuse or child arrangements we have a large expert team which would be happy to assist, we can be contacted on 0203 4408000 or by email A_FamilyReferrals@tvedwards.com