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In recent years there has been increasing concern about the harmful impact of ordering contact where it may expose a child to domestic violence.
Undertake a review of the court’s approach to contact and domestic violence and consider whether as a matter of principle domestic violence should, in itself, constitute a bar to contact.
The power of the court to make contact orders is specified under s.8(1) of The Children Act 1989 as being “an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other”#. Orders can only be made for children under the age of 16, unless exceptional circumstances apply#.
There are a range of different contact orders the courts can make. Direct Contact means physical contact between child and the non-resident parent. Visiting Contact is when the child goes to the parent’s residence, whilst Staying Contact involves staying overnight. Interim contact can also be granted until the arrangements are fully resolved in court. The courts can also determine the level of contact by granting defined contact or allow the parties to agree to an appropriate level with a reasonable contact order.
With the exception of defined contact, none of these orders would be appropriate in cases where there is a risk of domestic violence since the parent has unrestricted access to the child for the duration of the visit. Instead, the court should seek to control the contact. This can be done through Supervised Contact, in which contact is facilitated by a third party at a neutral location, or by Indirect Contact, where contact is made by phone, email etc. If the risk of violence subsides diminishes, the contact may develop to escorted, which involves a third party making reports regarding the visits.
The latest Practice Direction# concerning domestic violence reflects the sentiments of Baroness Hale in Re B#, where she emphasised a fact-finding hearing as part of the court process and not a separate exercise, ensuring domestic violence is considered as an issue at all stages of the proceedings. However, this piece will focus on the how the courts have approached contact in cases of violence, the case law that illustrates this approach and the concerns of various groups regarding harm.
Any order that is made must consider what is described as the ‘paramountcy principle’#, that ‘the child’s welfare shall be the court’s paramount consideration’#. Under s.1(3) of the 1989 Act, a welfare checklist was established as a list of factors the court should consider when making a decision affecting a child. These factors are: the ascertainable wishes and feelings of the child; his physical, emotional and educational needs; the likely effect on him of any change in his circumstances; his age, sex, background and any other relevant characteristics; any harm which he has suffered or is at risk of suffering; how capable each of his parents is of meeting his needs; and the range of powers available to the court#.
The court’s approach has been the inference of a pro-contact stance influenced by the government in the 1989 Act and in other statutory provisions, as seen in the interpretation of Re O # that contact with the non-resident parent was “almost always in the child’s interest”#.
Although there was no impulse to grant contact in domestic violence cases, the court sought to share parental responsibility amongst parents, and in Re H and R #, the courts maintained that a higher standard of proof is needed in cases of serious alleged abuse. The rigidity of these two cases show that the courts took a paternalistic approach to contact in which it was seen as beneficial; and even if abuse was alleged, it was harder to prove.
Although the 1989 Act did mention harm#, it did not express how to relate to children as secondary victims of domestic violence through witnessing one parent being subjugated to violence at the hands of another. It was not until the introduction of The Adoption and Children Act 2002#, which defined “significant harm”# as being “impairment suffered from seeing or hearing the ill-treatment of another”#. Nicola Harwin believes that there was a lack of focus and awareness of domestic violence issues that have left parents and children vulnerable to a “continued risk of violence and abuse”#. The Domestic Violence, Crimes and Victims Act 2004# sought to amend this by offering protection to victims of domestic abuse, and was enforced after a surge of concern regarding parents who elude the law after been accused of murdering their children.
Despite this, the law remained unsatisfactory, with Women’s Aid noting that there was “still no legal requirement to ensure the safety of the child or resident non-abusive parent”#.
A glimmer of hope is seen in Re M (1998)#, where the father had been physically abusive in the presence of his children and Wall J held that the presumption that contact with both parents being mutually beneficial will not stand unless the abusive parent shows that they can and will change their behaviour.
It was the pivotal case of Re L (2001)# that gave further direction on how to approach contact in domestic violence cases. Four appeals were heard in which fathers seeking contact had a history of violence and the mothers feared more violence and serious risks to the children. All four appeals were dismissed as it was decided that domestic violence was a major failure parenting and that “there should be no automatic assumption that contact to a previously or currently violent parent is in the child’s interest; if anything the assumption should be in the opposite direction”#.
Instead, a list of factors set out that would influence whether courts should allow contact;
(a) some (preferably full) acknowledgment of the violence;
(b) some acceptance (preferably full if appropriate, i.e. the sole instigator of violence) of responsibility for that violence;
(c) full acceptance of the inappropriateness of the violence particularly in respect of the domestic and parenting context and of the likely ill-effects on the child;
(d) a genuine interest in the child’s welfare and full commitment to the child, i.e. a wish for contact in which he is not making the conditions;
(e) a wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child to develop appropriate values and attitudes;
(f) an expression of regret and the showing of some understanding of the impact of their behaviour on their ex-partner in the past and currently;
(g) indications that the parent seeking contact can reliably sustain contact in all senses
If a parent seeking contact ticked these boxes, it would be reasonable for the courts to decide that contact with such a parent would be in the child’s best interest. However, despite these factors, domestic violence would not as a principle bar contact, and there were still discrepancies surrounding how much weight should be placed on it.
In Re K and S#, there was an appeal into whether the judge did not fully consider past issues of violence against the mother and children and it was held that the judge had erred by not following the precedent of Re L.
Whilst in Re N#, an appeal against a shared residence order failed as the court believed the father’s previous violent conviction did not show a pattern of violence that would affect the child and therefore could be dismissed. These two cases show that courts were not fully interpreting Re L in the way it was expected; rather, there was an alarming tendency to ignore the concerns of fearful mothers and view their outcry as mere hostility. This is seen in the case of Re D #(1993), in which contact was denied and hostility from the mother was seen as an important factor regarding whether to presume contact.
Yet in Re M (1994)#, in which domestic violence had been alleged, the courts allowed contact but maintained that the mother would not have to engage in contact herself. Also in the case of Re W (1994)#, the Appeal court allowed contact despite the mother’s claim that she would rather go to prison than allow the father contact. These cases show a huge amount of uncertainty regarding whether allegations of violence would amount to a denial of contact and with these inconsistencies, it’s no wonder widespread concern has been growing form various sides for many years.
Home Office reports show that there were 392,000 incidents of domestic violence in 2010/11# and a huge 95,500 contact orders were made in 2010#. Women’s Aid also claims that domestic violence was an issue in 70% of cases, yet contact was only denied in 1% of cases#. From this it can be said that a presumption is unnecessary since the court already seem to have a view that contact benefits all parties and rarely disagree with this.
Add to that the estimated economic cost of this violence at £15.7 billion# and it is clear this area is in need of serious review.
The Government seem to agree, as they launched a consultation in December 2011 into whether the definition of domestic violence should remain unchanged#.
This definition fails to consider children as primary victims or relationships that involve coercive control and those under 18.
The CPS also recognises the “devastating effect”# domestic violence has on children and reinforces the belief that the rights and interests of a child will be a pivotal consideration in domestic violence cases.
It’s not just the Government and its departments that advocate change in this area. Concerns have come from different sides. The UK’s largest children’s charity has had an important role to play after they published a report criticising a flawed legal system that fails to convict parents accused of child murders#.
Another UK based charity Gingerbread opposes the informal court presumption of contact and gives five reasons why there it should not be favoured#. One of the reasons given is that the introduction of a presumption would be a divergence from the paramountcy principle seen in the Children Act 1989. I agree with this belief since to automatically presume that contact is always in a child’s best interest, is to ignore his/her interests entirely. This is contrary to the creation of the 1989 Act, since the focus is no longer on the welfare principle, but rather on preserving a fragmented family unit and appearing to give a decision that benefits the parent seeking contact and the child.
This draws us back into the debate on whether the courts are deciding cases in the child’s interest or that of the parent and since the enactment of the Human Rights Act#, it may appear as though the boundary between the two has become blurred. However, contact is the right of the child, not the parent and Article 8 does not affect this fact.
Rather, the courts should not advocate direct contact if the child is at risk of ‘inhuman or degrading treatment or punishment’#, but if appropriate, seek to use an alternative form of contact as previously mentioned.
Felicity Kaganas# believes that feminism played a huge part in changing the way the judiciary and the legislature view domestic violence and claims that because of feminist discourse, “measures are being taken to ensure that child contact is safe”#.
The head of the Children and Family Court Advisory and Support Service (CAFCASS), Anthony Douglas#, also emphasised safe contact and acknowledged the pressure that the courts is under to grant swift contact orders whilst also ensuring that the checks run are thorough. He stated that courts must change their mentality from thinking “‘contact is always the appropriate way forward’, to ‘contact that is safe and positive for the child is always the appropriate way forward’”#.
I agree with Douglas’ modified presumption and commend him for highlighting Black and Minority Ethnic victims, who face a fear of violence and additional challenges of racism, lack of social support and social exclusion#. These challenges were prominent when I attended court and heard the statement of a Pakistani woman, who will be referred to as A#, who was subjected to abuse from her husband and spoke of feeling isolated from the British society she had recently entered and her relatives in Pakistan that she had left behind. The exclusion was so great that A felt conflicted between reporting her abuse and her loyalty to her husband, who she referred to as the only person that she spoke to besides her children. I think it’s extremely important to understand BME groups such as South East Asian communities, in which victims generally have strong loyalties to their community and culture. In societies such as these, victims risk rejection for speaking out against violence. Cultural practices such as forced marriage and honour killings are nothing new# and courts should be very sensitive when deciding whether or not to grant an order.
One myth regarding domestic violence is that it ends on separation and doesn’t affect children. As studies show, 1/3 of abuse occurs post-separation# and children who are victims of domestic violence and those who witness it suffer adverse effects. Another study shows that 75% of children who had contact with abusive parents were abused themselves#, the effects ranging from embarrassment, shame, low self-esteem and an inability to open up about the abuse. There is also a fear that younger children may feel as if they are to blame for the violence being committed against them or their parent#. If these children are not protected, there is concern that they themselves would be involved in a cycle of abusive relationships and may become abusers themselves in adulthood#.
Of course courts will take into account the views of children whenever possible, but too often when dealing with young children, they seem to resort to what resembles a substituted judgement, in which they decide what they think the child would choose for themselves. However, generalising that contact should be made cannot be the norm since each case put before the court are unique, extreme, yet rare incidents and should be judged in respect to its facts, not by use of a generic rule.
Despite this risk of harm to children, there is still a tendency to allow contact with abusive parents. If Joan Hunt# is to be believed, this is because most children want contact with their non-resident parent and although the courts presume this, they fail to consider the differing needs of younger and teenage children such as higher frequency of visits and ensuring visits fit with a teenager’s social/work commitments#. Hunt also listed the negative experiences of contact such as “torn loyalties, exposure to conflict, harassment or abuse, being used as a go-between, managing relationships with a parent’s new partner, missing the resident parent, boredom, and the stress of moving between two homes”#, not to mention the disappointment if the non-resident parent cancels or turns up late to the meeting.
These are the practical considerations that I think the court should take into account, along with the immediate psychological effects mentioned above.
Another area that Hunt refers to is the controversial existence of Parental Alienation Syndrome (PAS), when a child is turns against and rejects the parent, and its effects on the parent/child relationship. However, PAS is not a universally recognised condition, and therefore the courts may not regard it as a potential effect of ordering contact. This was the approach taken in Re L, who rejected PAS for not being a scientifically proved syndrome.
An open letter was written to the Judiciary by a group of domestic abuse victims in which they criticised the courts for not applying the Re L factors, which they described as “the beacon of hope”#. Surprisingly, they did not emphasise statutory reform but simply that the existing law be applied correctly. The group also criticised courts for what they believe to be a “double standard”# when dealing with children protection publically and privately, since had social services brought allegations of domestic violence, the child would be put in care, but when a claim is brought by the mother, the courts allow the alleged abuser to maintain contact with the child. I completely agree with this assertion and believe the double standard to be another example of the courts paternalism, seeking always to convey a message of family cohesion at the detriment of those involved. The group suggests that domestic violence specialists are used to help train CAFCASS and share their knowledge on safe contact, and that there be no unsupervised contact and risk assessments in all cases in which there has been abuse since “the onus should be on the abuser to convince the judge that he can be trusted with the children”#.
Of course, it is also important to acknowledging the experience of fathers. A poll published in early 2012 found that 70.5% of people did not think that fathers have sufficient access rights under the current law#, so while resident parent mothers might feel as though their concerns about domestic violence is not taken seriously enough or adequately addressed, their non-resident counterparts may feel as if they as being discriminated against by a biased legal system.
It seems the father fighting for contact is facing a hard two-sided battle; on one side, he aims to cooperate with the mother and maintain a good relationship with her whilst facilitating a now changed relationship with his children. This can be difficult for a number of reasons, but as Simpson et al found, and I believe it is applicable in many marriages, “the role of the father is mediated by the mother” and post-separation, with the removal of the mother figure, the father lacks the “knowledge, information or emotional insight, to be able to relate to children on his own terms”#.
Some Fathers’ Rights groups may claim that domestic violence has taken over the contact agenda, but ultimately, they fail to actually regard domestic violence and contact. Instead, the emphasis is shifted from male perpetrators to female attackers#. This does nothing to resolve the contact question. Fathers’ Rights groups need to participate in this discussion; not just as a means of publically renouncing abusers but in order to discourage men who abuse from seeking contact but rather encouraging them to seek help.
Despite statutory rules requiring the court to regard the welfare of the child as paramount, the court’s approach has been that contact is in the best interest of a child. Although there are exceptions to this presumption, the courts have favoured this approach too often.
Concern has mounted from the Government, charities and academics and the resounding opinion on all sides being that there cannot be a presumption of contact, rather each case must be decided on its individual facts and if safely controlled, contact should and can be made.
I have no doubt that contact with an abusive parent has a detrimental effect on children, who suffer emotionally, physically and in worst cases, the price of their young lives. Although there is no consensus surrounding how contact is administered, I agree with the proposals stated by the Children’s Voices in Family Law group. Direct contact with an abuser would not be justified in any other context, yet the courts demoralise domestic violence victims by encouraging contact in these cases. Domestic violence should not be an automatic bar to contact, but how far an abuser accepts fault should influence the kind of contact being ordered. Can an abuser who has yet to accept his behaviour or show signs of improvement be allowed unsupervised access to young children? Contact must benefit the child, yet be safe for all parties involved.
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