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Family Law

The leading authority on all aspects of family law

16 SEP 2011

Disputing contact: challenging some assumptions [2008] CFLQ 285

This article provides a detailed exposition of the courts' general approach to deciding an application for a 'contact order' in section 8 of the Children Act 1989, and examines how that approach is properly characterised. It is argued that there is no 'right of contact', nor is there a rebuttable presumption in favour of ordering contact, although the courts have talked in terms of a presumption or assumption that contact is beneficial. This may have its foundation in the idea of the restoration of a loss to the child upon parental separation. It is contended, however, that Thorpe LJ's reasoning in In Re L (A Child) (Contact: Domestic Violence); In Re V (A Child); In Re M (A Child); In Re H (Children), in adopting an assumption that contact is beneficial derived from the expertise of mental health professionals, is flawed and unsupported by research evidence. In particular, it is argued that his Lordship's reliance, in reaching that conclusion, upon a psychiatric report by Dr C Sturge (with Dr D Glaser) arguably misrepresents the tenor of the report. It is suggested that this view is shared by Dr Sturge herself. The article compares the approach in England and Wales with the legislative frameworks recently adopted in Australia and New Zealand, and argues that these may offer more appropriate methods of promoting both the importance of contact and the interests of those involved in a contact dispute.

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