Child Contact in Families surviving Domestic Abuse
in the UK
This is for information for people in England and
Wales and is not a formal legal guide. People should ALWAYS take
proper legal advice on their own situation. Valid as of June 2006.
When relationships break apart because of domestic
abuse (also called “domestic violence”), families often have the
difficult task of sorting out what happens to the children.
The law in England and Wales says that children have the right
to safe, loving contact with their parents. The
parents do not have the “right” to demand to see their children,
and a violent parent may not have the right to see their child at
all.
Children can be very badly affected by domestic violence, either
by witnessing it, overhearing it, or having the parent being violent
or abusive to them. It is a form of child abuse to be abusive to
a partner in front of children or within hearing range of them,
and it’s amazing what children do see and hear, even when parents
are trying to be careful.
Keeping children safe from abusive behaviour is the top priority.
No child should be forced to see a parent in a way that leaves them
or their “resident parent” (the one who normally looks after them)
in danger.
What is a typical child contact pattern
when families separate?
Most families do manage to sort out a sensible child contact pattern.
If it were an ordinary divorce/separation with no domestic violence
involved, many parents choose together to let the children stay
with one parent most of the time, but stay with the other parent
every second weekend, one evening a week, and half the holidays,
for example, (although many families choose different patterns).
Do children’s views matter?
The child’s views are important, and if they are old enough to
say what they truly feel, this should be taken into account by people
including the courts. Some partners will claim that the resident
parent is poisoning the children’s minds against them for no reason,
and this is occasionally done by either the man or the woman. No
loving parent should choose to speak badly of the other parent in
front of the children, no matter what. Private negative opinions
of them should be kept away from the kids.
My partner was violent to me – but the children
love them - can they see the children?
Many children do want to see a parent who has been violent or abusive
to them or to their resident parent, and sometimes it is possible
to make contact safe, or to ask the courts for “indirect contact”
in which the other parent is only allowed phone calls or letters
or photos at first, maybe building up to seeing their children when
it is sure that this can be safe for the child and the resident
parent.
My violent partner says they will get the
kids if we separate
Many abusive partners try to blackmail their partner, saying, “if
you leave, I’ll get the children”. This is not true. The law says
that violent parents cannot dictate who gets their child. It is
up to a court to decide, not the violent parent. Children have the
right to be safe, and to have a life that is as normal as possible
after separation. That usually means being with a safe parent they
are used to spending the most time with. If one parent is happy
to spend 95% of their time away from the kids before the separation,
they should not be surprised that the court expects the children
to live with the parent who has spent all that time with them.
I’ve suffered depression or anxiety –
will it be used against me in court?
Many people who suffer domestic violence go on to have some mental
health problems possibly including (for example) depression or anxiety
or post-traumatic stress disorder. A well managed mental health
condition is not normally a barrier to you being a loving parent,
and a court or social services will not take the children away just
because you’re taking tablets or seeing a counsellor. They will
usually think that is very sensible, and a sign of a good parent.
If anyone has any concerns, they would normally involve social services
who cannot afford to just take kids away. After all, if they took
kids away from everyone who’s ever been anxious or depressed, they’d
have football-stadiums full of them across the whole of the country.
They’ll try to support families wherever possible.
How do I get child care right?
A good parent who is looking after their children will ensure that
the children are safe, well fed, well cared for, have appropriate
toys, are shown right and wrong in safe and sensible ways, can see
their friends and relatives, gets proper medical care if they need
it, gets a proper education, be able to le them enjoy their cultural
and religious needs safely, and talk to and see the other parent
and their wider family if it is safe to do so. If your child does
not see the other parent, can you arrange for them to see the other
parent’s grandparents, uncles, aunts (if safe)? Court like to see
children enjoying as much family contact as possible.
How can child contact go wrong?
Not all parents are safe and loving. Child contact may be (for
example):
-
An opportunity for abusive partners to harass, follow, intimidate,
blackmail or be violent to the resident parent.
-
An opportunity for one parent to deliberately try to turn the
children against the other parent by lying to them about things
that happened.
-
An opportunity for a parent to snatch the children and go to
some other part of the country or even abroad.
-
An opportunity for that parent to harm the children, either
emotionally or physically, or by neglect and isolation from
friends and family, perhaps stopping them getting the essential
food and exercise that every child needs, or keeping them in
poverty, cold, thirsty, stopping them seeing a doctor when they
need one, or having essential medicines.
There may also be problems with finance, with one parent refusing
to pay child support and therefore leaving the child in poverty.
The Child Support Agency or the Courts can, in theory, help the
resident parent with this, but it is not always easy, fast or straightforward
for either the resident parent or the other parent.
"I was forced by my abusive partner/the
emergency situation to leave my children behind - how can I get
them back? "
You will need to take legal advice on the situation as soon as
you can. Women's Aid, Refuge and other groups dealing with domestic
violence will also know the right contacts for support groups for
people in your situation. It may well have to go to court for a
judge to decide what's best for the children. For example, the judge
may say that the children should stay put, and your partner should
leave the house instead, or they may work with (for example) the
police or social services teams so that they can transfer the children
back to you if they are at risk from the other parent.
I am worried about the child contact arrangements
– what can I do?
If you are worried about the safety of your child or yourself before,
during or after child contact sessions, you need to get good advice
from an expert, usually from a solicitor who is
trained to deal with family law. There is a link on the internet
which can help you find the nearest family law solicitor:
http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law
Some are better than others. Many offer a free half hour of advice
in which you can find out about them and see whether you feel comfortable
dealing with that firm.
Many Women’s Aid groups offer free legal advice from solicitors.
It is worth contacting your nearest group (see http://www.womensaid.org.uk/
which lists local groups) to find out what they offer.
You can sometimes get free legal advice from your local Citizens
Advice Bureau for free, and they may be a good source of advice
about all sorts of other issues like housing and benefits too. The
internet link to find one is:
http://www.citizensadvice.org.uk/index/getadvice.htm#searchbox
I can’t afford a proper solicitor!
You may be able to get ‘legal aid’ – discounted or free legal help.
A solicitor can check for you. Or, if your children are old enough
or the court says so, they may be able to get a free solicitor for
themselves. It may be cheaper in some cases to ask a Barrister instead
of a solicitor. The barrister normally stands up in court to talk
to the judge on behalf of your solicitor, but some will now work
directly for you. If you have a really tricky or interesting case,
some Barristers will work for free (it’s called “pro bono”) and
again you may be able to ask your solicitor about this.
You can also choose to do your own case in court, but this is tricky
unless you are quite an expert, or have asked the court if you can
bring an adviser with you, (who is called a ‘McKenzie Friend’).
This adviser cannot talk to the judge – they can only hand you notes
in court. The judge will do their best to help you, though. If you
are up against a top legal team, this may not be enough, and it
may be better to pay a solicitor if you can manage to find a way
to do this.
What is likely to happen next?
If you cannot agree safe and appropriate contact
for your child, it is very likely that the other parent will want
to go to court to ask for them to decide what happens, or you may
decide to go to court to ask them to stop unsafe contact.
What sort of Court?
There are all sorts of courts. Most child contact cases are heard
in the County Courts, also called “Civil Courts”, by a judge. If
it’s criminal law, like police arresting a partner for violence,
that’s normally heard in the Magistrate’s Court or the Crown Court.
If people disagree with the court’s answer, they may be able to
ask the judges in the High Court or the Court of Appeal or even
the House of Lords. Again, a solicitor can tell you if this is possible
or not.
How long might it take?
The courts are trying to work faster. A child contact case might
be in court for several years, but they will (hopefully) try to
come to a first set of sensible decisions in a matter of weeks.
The rest of the time they may be reviewing things every year or
six months to see if it is working.
How much will it cost?
That all depends how long it takes and how much your solicitor/barrister
charges, plus the court’s own charges. It can be anything from £1,000
to £50,000 or more for very long, complicated cases, which is why
it is worth asking about how to keep the costs down and making sure
your solicitor keeps you informed about how much this is costing
you. Many people think that child safety matters should be free
for the parent who is escaping violence, but the law hasn’t changed
enough to make this possible yet.
What can I do to prepare?
Read up as much as you can. Find out if your ex-partner has put
in a Statement, and see if you can get a copy. Prepare a careful
answer for your solicitor, and make sure they really understand
the issues about safety. The case of “Re H” on 22nd November
2005 in the Court of Appeal is very useful on the subject of child
safety and contact. Make sure you and your solicitor has read it.
What about safety on the day?
If you are going to court about a child contact situation, you
need to plan ahead if you can. This may not be possible if you are
going in as an emergency, but it is often a good idea to ask your
solicitor about safety at court. They may be able to offer you a
separate safe entrance and exit, away from your partner. They may
be able to offer a separate waiting room. They may even be able
to offer you a video link or screens to separate you from the perpetrator.
It’s worth asking. The Court Manager is often a good person to ask
for about any of this, or you can ask to contact Victim Support,
a charity who work in courts to help victims of violence. It might
be worth trying to visit the court beforehand just so you can see
where you will be.
Can I take the children?
It is best to arrange child care on the day of the court Hearing,
as most courts are very badly thought-out for children, and you
cannot take them into court with you.
They’ve offered us Mediation – should
I accept?
No. Mediation is not safe for domestic violence cases. Most abusive
partners use the sessions to intimidate their partner, and few survivors
feel confident about speaking out in front of the perpetrators.
Couples counselling isn’t usually any good either, for the same
reason. If you are scared of being with your partner, do not agree
to either of these.
They’ve offered my partner Anger Management
training – is that good?
No. Anger management courses are for people who lose control with
anyone and everyone. It can make domestic violence perpetrators
worse, as it teaches them new ways to control and
use anger against their partner. What domestic violence perpetrators
need is a proper domestic violence perpetrator course, which works
in parallel with support for you so that you know what’s happening
and what’s being taught. See http://www.dvip.org/
for an example of this. There are few of these, though.
What happens at court?
If you can, dress in a sensible and business-like way, and ask
your solicitor or the court Usher (the person who tells you to go
into the court rooms) what to call the judges. In a Magistrates
Court it is usually Sir or Madam. In other courts it may be Your
Honour or Your Lordship/Ladyship.
When the Judge or Magistrates arrive, everyone stands up. Watch
for what the court people do. Sit down when they do. There will
be more standing up when they leave again.
Do not look at the person who was violent to you unless you are
sure you can handle it. Look at the judge or your solicitor or anywhere
you feel comfortable, even when answering questions.
Whatever happens, whatever really bizarre things your ex-partner
or their solicitor may say, (and they certainly will!) do not yell
out or swear or shout. It is called “contempt of court” and you
will end up being removed from the court or maybe even being put
in the cells, and giving a very bad impression to the judge. No
matter how hard it is, you must not get angry in there. All you
need to do is slowly shake your head. That’s what judges are trained
to look for. It is so hard to hear things that aren’t true, and
we all want to yell “that’s a lie!” but we have to wait until it’s
our turn and then explain what really happened. Take a notebook
and write down questions or things you want to say, though they
probably won’t let you read out from that notebook when it’s your
turn to give evidence. It’ll give you something to talk to your
solicitor about during breaks though. Leave the court rather than
yell out. Crying is OK if it gets too much for you. If you need
to stop for a break because it’s getting too much, say so. If you
need a question repeated, say so. Take your time to answer things.
If you get something wrong, just say so and explain what you actually
meant. The idea is to give the judge the truth, and none of us is
perfect at remembering everything we want to say, even the expert
witnesses.
We went to court and I’m still not getting
the right contact for them!
It can be very saddening for a loving, safe parent if they have
fought long and hard for contact with their children and nothing
happens because the other parent refuses to do what the court says.
It might be that a parent who has demanded to see the kids doesn’t
bother to turn up to contact after all. It might be that a parent
who has promised to let the children see their mum/dad doesn’t let
them do so, for no good reason, or either parent messes about with
timing or location until it’s impossible for the other one. Always
take legal advice, and see if it can go back to court so the courts
can reconsider what to do. They may be able to get your ex-partner
to attend parenting courses, or find some other way to deal with
the situation.
I’ve done everything right but my ex keeps
taking me back to court!
Some perpetrators use courts to harass their partners, cost them
money, and stress everyone out (including the children). If they
are caught doing this, they can be stopped by courts. Your
solicitor can tell the judge that they think your ex-partner is
being a “vexatious litigant” – in other words, using court to spite
you, not to care about the children, and if the court thinks you’re
right, they can insist that your ex-partner only gets a court hearing
if he/she can convince a judge that they actually need one.
Useful Court Case:
On 22nd November 2005, after considerable concerns about
child safety where there has been domestic violence, the Court of
Appeal once again published their Guidelines on Contact and Domestic
Violence so that all family courts understand the law better.
The link is: http://www.hmcourts-service.gov.uk/judgmentsfiles/j3553/ali_guidelines_1105.htm
and I have summarised it here, in
English rather than legalese! It may help people to understand
their rights and responsibilities for child contact when there has
been domestic violence. Remember, though, that you must get
proper legal advice for yourself.
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