Contact after Separation or Divorce – Who Pays?

Our family law solicitors take a look at the recent appeal case of G v G : (Guidance on Contact Costs) [2022] EWHC 113 (Fam). The case considers who should pay for the cost of contact visits after a separation or divorce where there are allegations of domestic abuse that necessitate additional supervised contact costs.

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Contact – the cost

Ask any parent and they will tell you that children don’t come cheap. When child contact visits are mentioned, some parents assume that there is no cost involved in a parent seeing their child, unless the parent elects to take the children to London zoo or similar attraction. However, for some parents, there is a cost to contact, such as:

• If parents live far apart, and the court orders that the contact handover location is a midway point, the cost of petrol and lost work opportunities can soon mount up or
• If a parent secures a child relocation order so they can move overseas to live with their child after a separation or divorce , the court could make a child arrangement order that says the parents will share the costs of airfares for contact so the child can maintain a relationship with the parent who is remaining in the UK or
• The cost of additional school uniforms and other child related items that are necessary with a shared care regime or
• The cost of supervised contact sessions (through a contact centre or agency or independent social worker) when supervised contact is deemed necessary because of allegations of domestic violence or risk of harm to a child.

The case of G v G: (Guidance on Contact Costs) [2022] EWHC 113 (Fam)

In the case of G v G, the father of a child applied for a child arrangement order to secure supervised contact with his young child. The father had experienced mental health issues and the court ordered temporary supervised contact at a contact centre. The COVID-19 pandemic intervened and direct contact stopped because of lockdowns. When lockdowns ended, the father got another temporary child arrangement order for direct contact at a contact centre.

As the father had lost his job, he asked the mother to pay the costs of the supervised contact sessions. The father’s rationale was that the contact visits were in the best interests of the child and, as the father could not afford to pay them, the mother should.

At a fact finding hearing the court found there had been significant domestic violence in the relationship, including physical, sexual and verbal abuse as well as coercive control by the father against the mother. The court ordered that indirect contact via Facetime should take place, and said direct contact should start up again once the contact centre had written a risk assessment on the father’s contact and that an expert psychologist should report on the father. The court decided that the contact centre costs should be shared by the parents pending further hearings.

The mother appealed and said it was wrong for the court to order a victim of rape to share the costs of supervised contact with her rapist. She asserted it was against public policy and breached her human rights and those of her child under Articles 8 and 14. She also said the court decision was a wrong interpretation of section 11(7) of the Children Act 1989. The mother said the court had not considered the short, medium, and long-term harm and risk of contact on her and the child, especially as the court had not considered the father's capacity to appreciate the effect of the domestic abuse on his ex-wife and child.

The appeal court judge decided:

• Section 11(7) of the 1989 Act allows for the payment of contact expenses. The court has jurisdiction to order a parent to pay contact expenses.
• The abuse findings were very serious. Abuse within a family affects not just the victim of the domestic violence but also any children present during the domestic abuse, or aware of the abuse, or whose primary carer’s parenting ability is affected because of the domestic violence the parent has suffered. The definition of abuse has widened over the years. The effect of abuse on a parent has become increasingly recognised. Family courts are now better trained in recognising the damage that domestic abuse causes to young children as it was once  thought that if a child had not seen the domestic violence, then the child was not aware of the abuse . A court now understands that a child may not witness domestic abuse but the child can experience its effects.
• The father’s direct contact order should be set aside and the issue of direct contact should be reconsidered at another children law
• As a matter of principle, when the court is asked to order that a victim of rape or domestic abuse should share the payment of the costs of contact with their child with the perpetrator of that rape or domestic abuse, there must be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser. If, wholly exceptionally, the court has to consider payment, the court should look at the welfare checklist and guidance given in practice directions as well as the nature and impact of the abuse on the caregiver and the extent of the relationship between the child and the abusive parent together with the costs involved and the parties' financial resources. Finally, if the contact is in the best interests of the child, the court should consider if contact would take place without a sharing of the costs. The cost order was set aside, to be reconsidered at the future substantive child arrangement order contact hearing.

The key point about the decision is that circumstances should be ‘exceptional’ to justify an order to pay towards contact costs after a finding of domestic abuse.

How can OTS Solicitors help?

If allegations of domestic abuse are the subject of court findings, this can have an impact on whether child contact should continue and, if so, who should pay the contact costs. OTS Solicitors can help you in securing injunction orders and children law orders.