Ex partner IIOC and court

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ja2167
Posts: 5
Joined: Fri Jul 06, 2018 7:44 am

Ex partner IIOC and court

Post by ja2167 » Sat Jun 26, 2021 8:55 pm

My ex partner was arrested over 18 months ago, this triggered children’s services involvement.


They have been nothing but troublesome for me. Because of my job involving children, it has caused me a lot of problems having them involved - so I was told to allow him no contact and they’d leave me alone. This is what I did, due to fear of loosing my job.

My ex has now told me he’s finally applied for court.

What are his chances of getting contact? I’m assuming it’ll be supervised ? But will I get any legal help? I’m being told by social worker I can’t let him have contact so why isn’t he taking them to court?

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Suzie, FRG Adviser
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Joined: Mon Jul 04, 2011 2:57 pm

Re: Ex partner IIOC and court

Post by Suzie, FRG Adviser » Wed Jul 14, 2021 11:33 am

Dear ja2167

Welcome to the parents’ discussion board and thank you for your post. My name is Suzie and I am FRG’s online adviser. I am sorry to hear about the difficulties that your family are experiencing and I am sorry I was not able to respond to you sooner. I will reply to both your posts here.

Children’s services became involved when your ex-partner was arrested for an an offence in relation to child sexual images. The police investigation is ongoing. In the meantime, you were advised by children’s services not to allow the children to have any contact with their father and you have kept to this, in order to keep your children safe and also to ensure that you can keep your job working with children.

I can understand how difficult this situation is and how frustrating it must be that your ex-partner is now taking you to court to apply for a Child Arrangement Order (CAO) to see his children. Unfortunately, there is no legal aid in disputes around contact, unless there is evidence of domestic violence or child abuse. Please see the Guide to legal aid . He is taking you to court because you are a parent with parental responsibility(PR) – children’s services don’t have PR for the children but they are putting the onus on you to exercise yours and to safeguard the children by not allowing contact. I think you are right to expect that any contact the court agrees to will be supervised.

It is not clear what assessment (including a risk assessment) that children’s services did before recommending that your ex-partner should have no contact with the children, or how they assessed whether you would be suitable or not to supervise. As the person who is being denied contact he should be contacting children’s services to clarify this.

In the meantime, I think you should make sure that you have:

• a copy of any assessment that children’s services have completed,
• a written record of any plan that has been put in place
• a timescale for the review of the assessment and the plan.

You should notify children’s services that your ex-partner is applying to the court for a CAO. You can ask that they:

• confirm to you in writing their previous and current recommendation around contact.

They are responsible for making sure that you have enough information to make informed decisions so ask them to be as clear as possible with you about the basis for their recommendations.

If you are unhappy with the assessment, the recommendations, or the way any of this has been communicated to you, you could consider making a complaint, if necessary.

You can get private law advice from Child Law Advice, Rights of Women and support from Support Through Court.

I hope this is helpful.

Best wishes

Suzie

LoveMyChildren
Posts: 2
Joined: Mon Aug 16, 2021 2:59 pm

Re: Ex partner IIOC and court

Post by LoveMyChildren » Sun Aug 22, 2021 11:03 am

Dear ja2167

It appears that the Children's Services have got you to do their job for them as is often the case. They tell you no contact, you comply and for them it's case closed. They don't have to organise expensive parenting assessments, either by themselves or by a psychologist, and they don't have the expense of going to court.

However, these draconian measures of no contact in cases of indecent images were made unlawful in 2011. The relevant case law is:

[2011] EWCA Crim 1772 - (paras 22-24):
https://www.bailii.org/ew/cases/EWCA/Cr ... /1772.html

This case primarily concerned SHPOs and what can and can't go in them and so this common law was made by the Criminal Division of the Court of Appeal and is not so well known on the civil (family) side. In paragraphs 22-24 of the judgement, a human rights ruling was made in respect of children of fathers with convictions for indecent images:

"Care must be taken in considering whether prohibitions on contact with children are really necessary. In Lea (supra) the defendant had been convicted of offences of viewing child pornography. The SOPO imposed contained provisions prohibiting him from having unsupervised contact with any child under the age of 16 except in the presence of a parent or appropriate adult, and from permitting any such person to be in any house where he lived or stayed. This court rejected the submission of the Crown that those provisions were justified in case the defendant graduated to contact offences. There was no indication whatever of any likelihood of such progression. The case is a good example of overuse of a SOPO. Preventive these orders are; it does not follow that anything is permissible. It is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There must be an identifiable risk of contact offences before this kind of prohibition can be justified."

"Prohibitions on contact with children may however be necessary in some cases of predatory paedophiles who seek out children for sexual purposes. Even then, care must be taken with their terms. The defendant may have children of his own, or within his extended family. If his offences are within the family, or there is a risk that offences of that kind may be committed, then those children may need protection. But if they are not, and there is no sign of a risk that he may abuse his own family, it is both unnecessary and an infringement of the children's entitlement to family life to impose restrictions which extend to them. Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings for the very good reason that part of the family court process may, if it is justified, involve carefully supervised rehabilitation of parent and child."

Like I said, this judgement was primarily about SHPOs but the Article 8 ruling made within became law in all 47 member states of the Council of Europe (nothing to do with the EU I should add) who administer the European Convention on Human Rights. That means any prevention of contact between child and father based only on IIOC convictions would be a breach of Article 8 and possibly be contempt of court. Only where there "is a history of abuse within the family" should the matter of contact be for the family court to decide.

Should a court order from a lower court be imposed (either through ignorance or error) that is in conflict with the Court of Appeal judgement, then the order of the lower court is binding, even though it should be quashed on appeal as courts are legally bound by the decisions of higher courts. Click the following link to read the law on binding precedents.

https://www.inbrief.co.uk/legal-system/precedents/

Even since this 2011 law was made, the Children's Services still have a job to do in cases of IIOC. In fact, they are legally obliged to. Of course, they can not breach the 2011 judgement in any way but they must carry out necessary safeguarding checks in respect of the children. They may well, for example, uncover an identifiable risk of a progression to contact offences. But, the Children's Services should not be asking any parent to impose no contact on the other parent in cases of IIOC, it is simply not allowed and would potentially put that parent on the wrong side of the law.

Hope this helps.

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Suzie, FRG Adviser
Posts: 3265
Joined: Mon Jul 04, 2011 2:57 pm

Re: Ex partner IIOC and court

Post by Suzie, FRG Adviser » Wed Aug 25, 2021 11:56 am

Dear LoveMyChildren,

Welcome to the Parent’s Board and thank you for your post. I am Suzie Family Rights Group’s adviser.
I advise about the law and procedures that concerns children services, so unfortunately, I am not in a position to comment about the case that was made within criminal proceedings as it is beyond our remit. However, you are right to say that the Human Rights Act 1998 does apply to interventions by children services.
It is wrong that you say mum is doing children services job for them. Children services should have assessed dad’s role in the children’s lives including assessing his risk to his children. If dad was not assessed or did not agree with the decision made, it is up to dad to challenge the decision by way of the children services complaints. In a case when children services are worried about a potential risk to children, it is important that mum can show she can “protect” a child against a potential risk until more is known about that risk. She has followed their advice. If she had not followed their advice, then children services may have been concerned about whether she could understand those risks.
Have a look at our A to Z of terms information about assessments and complaints.

Best wishes,
Suzie

LoveMyChildren
Posts: 2
Joined: Mon Aug 16, 2021 2:59 pm

Re: Ex partner IIOC and court

Post by LoveMyChildren » Wed Aug 25, 2021 1:29 pm

Hi Suzie,

Thank you for the welcome. I agree with you entirely about the Children's Services carrying out risk assessments in cases of IIOC. As I said in my last post, they are legally obliged to (under the Children's Act), that is their job. My only assertion is that the courts from the High Court down are bound by the president set by the Court of Appeal. And that everyone else, from members of the public to the local authority, are bound by the case law introduced by the Court of Appeal.

The Civil Judiciary and the Criminal Judiciary are bound by one another's presidents. For example see p.19 of R v Yasain:

https://www.bailii.org/cgi-bin/format.c ... /1277.html

So for as long as [2011] EWCA Crim 1772 remains law, it is a breach of the children's human rights (not the father's) and unlawful to prevent contact between child and father based only on IIOC. There must be an 'identifiable risk' of contact offences against his own children in order for contact to be restricted. If the risk assessment or police investigation found, for example, that his own children were featured in the IIOC or web chats uncovered that he fantasised about his children or he offered them to others then the Children's Services and the Family Court’s have a case for no contact and rightfully so.

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