The BBC’s Victoria Derbyshire show reported today (15.05.19) that more than 120 MPs have written to the government asking for an inquiry into how family courts in England and Wales treat victims of domestic violence. They report at least four children have been killed by a parent in the past five years after a family court granted “access”.
So what should happen in the family courts when a parent who is alleged to be domestically abusive applies for a child arrangements order to spend time with their child?
Children Act 1989
The starting point is a presumption in the Children Act 1989 that the involvement of a parent in a child’s life will further the child’s welfare unless there is evidence to the contrary. But guidance that the court has to apply (Practice Direction 12J) says the court must in every case consider carefully whether the statutory 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.
Where there is such a relevant allegation the court has to make arrangements for a “fact-finding hearing” to take place so a judge can decide the truth of the allegations. If the allegations are proved, the court has to consider if any other expert assessments (e.g. social work, psychiatric, psychological) should be obtained. In addition, they will consider if the abusive parent should seek treatment or have another intervention such as a Domestic Abuse Perpetrators Programme.
The court then has to decide if direct contact with the abusive parent is in the child’s welfare interests. The court has to consider the conduct of the parents to each other and in particular the effect of the domestic abuse on the child, the parent’s motivation, the likely behaviour of the abusive parent and their capacity to appreciate the effect of past domestic abuse and the potential for future domestic abuse.
Where there has been domestic abuse but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for the child, the court has to look at any directions or conditions such as whether or not contact should be supervised, or whether the abusive parent should undergo some intervention, and whether the arrangements should be reviewed.
At David Gray Solicitors, when we are acting for parents or children, we are always careful to ensure we make the court aware of any domestic abuse allegations and that they are dealt with properly, in accordance with the guidance. We were shocked by the stories that have come out in response to the BBC report today which point to the law not being applied properly in many cases.