Changes to the way the Court approaches contact in domestic abuse cases

New guidance to the courts in dealing with applications for contact in cases of domestic abuse was introduced on 2 October 2017. This follows lengthy consultation with various bodies. The changes have been met with relief by many including the Women’s Aid charities who have been campaigning for change in the way that the courts treat victims of domestic violence and abuse and hope this will help to prevent those cases where children and sometimes their parent have been harmed or even killed as a result of contact being allowed by the courts in the past.

There has been much research proving that witnessing or being subjected to domestic abuse is harmful to children, often causing them psychological harm as well as physical damage. It can also affect the parent’s ability to safely care for the child. For the year ending March 2016, the Crime Survey reported 1.2m female victims, 651,000 male victims with 79% not reporting the perpetrator, and only 100,930 prosecutions. There are clearly many who do not report abuse and will continue to suffer unheard. The effect of this on family life is devastating. Where the perpetrator makes an application for a child arrangements order, the way the court deals with the issues of domestic abuse is vital in protecting both the child and the parent with care of the child.

The major changes include:

• The term domestic violence has now been replaced with domestic abuse, which extends to controlling, coercive or threatening behaviour, violence or abuse, including psychological, physical, sexual, financial or emotional abuse. Coercive behaviour covers assault, threats, humiliation, intimidation or other abuse used to harm, punish or frighten the victim. This extends the type of behaviour that the court needs to give special consideration to when dealing with applications for child arrangements orders to determine contact or where a child should live.
• The presumption that both parents should be involved in a child’s life in the majority of cases. This has not been dis-applied but rather where there are allegations of domestic abuse, the court will need to consider whether that presumption of contact is appropriate and in particular whether there is risk of harm to either the child or the parent if contact is ordered.

The court will need to consider at the earliest stage the nature of any allegation of abuse and how relevant this is to whether a child arrangements order should be made. A Safeguarding report is provided at the outset by CAFCASS as standard, identifying situations where there are any risks of domestic abuse.  If abuse is not admitted, the court may order a fact finding hearing to establish whether or not the allegations are proven. The court should where possible make findings as to the domestic abuse and the effect upon the child. If the domestic abuse is proved, the court needs to consider whether there should be further professional input, such as psychological, social work or other risk assessment, or whether any party should have treatment or advice as a condition of any contact.

The court should not however make an interim contact order unless it is in the child’s best interests, and an order would not expose either the child or the parent with care to an unmanageable risk of harm.   Consideration should also be given to whether contact should be supervised or supported and whether there are suitable facilities available.  If not, the court should question whether there should be indirect contact, such as letters, emails, or telephone calls.

The court can also direct that a report be prepared either by CAFCASS or by Children’s Services. This will involve both parents giving information to the writer of the report separately and the report will make recommendation to the court on what is believed to be in the child’s best interests.

In some cases, where the allegations are serious enough, there can be a need for the child to be separately represented, and the case may be heard by a high level of judge.

In all of these cases however, the court still has to consider the welfare checklist set out in the Children Act, and the child’s welfare will be paramount. However the court will also need to consider:

• where there is either a finding of abuse, or an admission,
• the parties conduct to each other, and the effect of that abuse on the child and the current living arrangements,
• the effect on the child’s relationship with his or her parents,
• the applicants motivation – is it to see his/her child, or are they using the process as a form of abuse against the other parent,
• what the behaviour of the parent is likely to be during contact and how will that affect the child,
• the effect of that abuse and what is the potential for that abuse to continue.

Once the court makes an order they must be clear about how they arrived at their decision, and how the issue of domestic abuse has influenced the decisions. If there has been a finding of domestic abuse and the court still orders contact, then it must explain how the order will not expose the child to any harm and still be in the child’s best interest.

An order for no contact is still exceptional. In considering the child’s welfare, consideration also has to be given to the applicant’s right to family life under the European Convention on Human Rights. An order for no contact deprives the child of a relationship with that parent, even if it is negative and prevents the opportunity to make good any damage done. However the risk of harm to the child must always be in the forefront of the court’s mind.

For further information or a discussion about how this may affect you and child arrangement order, contact Thursfields’ Family Law team on 0345 20 73 72 8 or info@thursfields.co.uk