New family law rules to help protect children exposed to domestic abuse

hazel wright

Hazel Wright

Family law solicitor and mediator & Trustee of Tavistock Relationships

There is clear evidence that children are adversely affected if they are involved in domestic abuse [1].

This blog is not about sexual abuse of children, which is quite rightly a criminal matter. Nor is it about public law such as adoption, care proceedings and such. It is about long-overdue recognition in private family law proceedings where separated parents cannot agree how to bring up their children and there are allegations of domestic abuse.  The aim of the new rules is to provide some protection during the court proceedings for children in those situations.

Before disputes over parenting come to court, most parents will try to find a negotiated way forward. The first steps often involve informal help from family and friends, and may lead to mediation, parenting classes and/or specialised couple or family therapy. Some mediators feel out of their depth when trying to help parents who are or have been in abusive relationships. Others are prepared to undertake this work, perhaps in a co-mediation model working with another mediator who is also a specially trained therapist.

Negotiation may not be successful. One parent may totally oppose the child seeing the other parent, usually for reasons that may have little directly to do with the child but of course this opposition may be for good and proper reasons to protect the child.

On 2nd October2017, new rules came into force in the family courts that are aimed at putting the child at the centre of cases about how they should spend their time between their separated parents.

The most important change is to use the term domestic abuse not domestic violence. There is no exhaustive definition of what this term includes but examples are given:

  1. Any incident or pattern of incidents of controlling, coercive or threatening behavior or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
  2. It includes psychological, physical, sexual, financial or emotional abuse.
  3. “Coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

Contrary to common belief, there is no presumption that a child should spend equal time with each parent. There is a presumption, unless dislodged, that the involvement of both parents in a child's life is beneficial. That presumption must now be carefully examined if there is an allegation of domestic abuse, and may not be followed.

If domestic abuse is alleged:

a) The judge must first consider if the child should have his/her own lawyer, paid for by the State. This reflects the right of the child under Article 12 of the UN Convention on the Rights of the Child 1989. This provides that a child has the right to express his/her own views in matters relating to him/her. Due weight is given to the age and maturity of the child. Participation leads to better decision making and outcomes. Domestic law also provides, under the Children Act 1989, there is a welfare check list which the court has to consider when making any order regarding a child; [2]

b) The judge must consider if any type of assessment (eg of parenting, or the health (mental or physical) of parents or the child) would assist the court at the stage when the child's welfare is being considered;

c) The judge should not make any interim arrangements, during the course of the court case, or final child arrangements unless it is in the child's interests and the order would not expose the child or other parent to "unmanageable risk of harm".

d) If there is to be any arrangement for the child to spend time with the alleged perpetrator of the domestic abuse, generally this should be in a contact centre where there is supervision. Contact in a centre that only provides support is not good enough. Contact which is supervised by a parent or relative is not appropriate.

The rules recognize that false accusations of abuse are made, and there is provision for what is termed an "early fact finding hearing". This is a well-known procedure where the judge will make a binding court order as to which if any allegation is substantiated, on a balance of probabilities, and therefore is relevant to the final decision[3].

Because the law recognizes that the parents' behviour towards each other as well as towards the child is central to any proper consideration of what is best for the child, the rules set out what the judge must take into account:[4]

Where the judge decides that direct contact with a parent is not to take place, he/she will also consider if it is safe for the child to have indirect contact for now. That includes such elements as sending Christmas and birthday cards and presents, letters and postcards. The judge is not tasked with separating parents and children but with protecting the child from the impact of domestic abuse.

The judge also has powers to make attendance at a Domestic Violence Perpetrator Programme compulsory before any contact with the child can be considered fully.

It is important to remember that the judge must give reasons for the conclusions reached and the orders made. This is a necessary part of the process. It helps to provide fairness between the alleged perpetrator and the alleged victim.

These new rules address the protection of children where there is an application for an order under what we now call the "Child Arrangements Programme". This is a rather difficult term to use in every day practice. It replaces the prior use of the terms "residence" (with whom a child spends time and lives, and this may be shared between parents) and "contact" (when the child spends time visiting with the other parent). These words in turn replace terms still used in everyday language of custody, access and visitation and so on.

With funding from the Department for Education, Tavistock Relationships has been involved in a pilot project with the London Borough of Harrow. This has used a therapeutic approach where couples have been helped to manage situations which might otherwise deteriorate into domestic violence. Such incidents are sometimes called "situational violence"[5]

The courts don't hold the answers. The parents have what is called parental responsibility.  These new rules are to protect children where a parent is accused by the other parent of causing harm by domestic abuse.

Guest blogs may not represent the views of Tavistock Relationships.

Citations:

 [1] The impact of couple conflict on children. Tavistock Relationships policy briefing https://tavistockrelationships.ac.uk/policy-research/policy-briefings/969-impact-couple-conflict-children

[2] The welfare checklist, section 1(3)

  1. The ascertainable wishes and feelings of the child concerned
  2. The child’s physical, emotional and educational needs
  3. The likely effect on the child if circumstances changed as a result of the court's decision
  4. The child's age, sex, backgrounds and any other characteristic which will be relevant to the court's decision
  5. Any harm the child has suffered or may be at risk of suffering
  6. The capability of the child's parents (or any other person the courts find relevant) to meet the child's needs
  7. The powers available to the court in the given proceedings.

[3]  "In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent".

[4] (a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;

(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;

(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.

[5]  Tavistock Relationships policy briefing on situational violence  https://tavistockrelationships.ac.uk/policy-research/policy-briefings/914-couples-with-situational-violence

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