‘Contact’ at all costs? The new protocol that must be applied by all Judges and family law practitioners in relation to Child Arrangements Orders where there is an allegation of Domestic Violence or Domestic Abuse.
Domestic Abuse whether it be against men, women, or children is, according to the President of the Family Division, Sir James Munby, ‘a scourge on our Society,’ and yet it continues to be a common theme within family law proceedings more than 40 years after the enactment of legislation designed to tackle it.
Changes to the Children Act 1989 brought in in October 2014 provided for a presumption of parental involvement. This didn’t provide a presumption that contact should take place at all costs and the family court has for some time been under a duty to consider whether domestic violence has been raised as an issue, either by the parties or by others. If it has been, the court had to identify the issues involved, and consider whether the allegations made should be taken into account when making a court order for children to live with or spend time with a parent. The court also had to consider any risk of harm to a child.
A report prepared by Women’s Aid ’19 Child Homicides: What must change so that children are put first in child arrangements and the family court,’ contains some extremely distressing accounts of domestic abuse in the context of court ordered child arrangements. In the cases of at least 12 children (in seven families) of the 19 killed, contact with the perpetrator (the father) was arranged through the family courts. An All-Party Parliamentary Group of Domestic Violence Parliamentary Briefing, led to a review by Mr Justice Cobb of the guidance the court has to follow when domestic abuse is an issue. It was identified that changes were needed to make the Practice Direction and its implementation more robust. Those changes come into force today.
The key changes to the new Practice Direction 12J are as follows:
- “domestic violence” has been replaced with “domestic abuse” and the definition expanded to include culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse
- There are mandatory requirements for what must now be included in court orders including whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangement order.
- The presumption of parental involvement has not been removed. However, the court must in every case consider carefully whether the presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.
- The court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.
- When a Child Arrangements Order is made by consent, which means when both parties agree to the arrangements, the court must consider all of the information available when assessing whether there is any risk of harm to the child, and if appropriate direct a S.7 report to be completed by CAFCASS or, social worker, if there is any Local Authority involvement in the case.
- At a hearing if an admission of abuse against another person or the child is made by either party then the admission should be recorded in writing and retained upon the court file. This admission must then be made available to the CAFCASS Officer or Social Worker preparing the S.7 report as soon as possible. CAFCASS and Social Workers aren’t always present during the initial hearings and therefore it is crucial that they have this information when they are making recommendations as to whether it is safe for the child to spend time with the parent in light of the admission. It will also allow them to consider whether further investigations or work need to be completed with that person prior to the child spending time with them, particularly on an unsupervised basis.
The Government are planning to implement legislation banning the direct cross examination of a victim by an alleged perpetrator of domestic abuse. Further adjustment will be required to Practice Direction 12J as and when the proposed legislation is passed.
If you are victim of domestic abuse Legal Aid maybe available for you for advice or to be represented in proceedings involving arrangements for Children. Legal Aid is not available for everyone as it is means tested, so you will need to be assessed to see if you are financially eligible. If you are eligible, Legal Aid is not always free and you may have to pay a contribution towards your Legal Aid.
For more details please contact our family team in Newcastle or South Shields by email to firstname.lastname@example.org or 0191 232 9547.