Guidelines for Good Practice proposed by the Children
Act Sub-Committee of the Advisory Board on Family Law
A 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 below, 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.
Summary
Courts (usually County Courts, not criminal courts)
are supposed to take into account any allegations of domestic violence
as soon as possible, not years afterwards.
The court should, at the earliest opportunity, consider
the allegations made (and any answer to them from your partner)
and decide whether (if it’s true) it would make it likely
that the child would be in danger during contact.
If the other parent denies being violent/abusive, the court should
work out how to find out the facts, fast. They should also give
clear instructions (using section 11(1) of the Children Act 1989)
on whether or not there should be a speedy court hearing about this
so they can find out what probably really happened.
They may choose to make an “order for interim contact pending the
final hearing” – in other words, set up an arrangement for contact
until they do the full court case. But they must make sure whatever
they choose is in the interests of the child; and “in particular
that the safety of the child and the resident parent can be secured
before during and after any such contact”. This is important,
because this isn’t just about the safety of the child. If the resident
parent is scared witless for a very good reason, or in danger, it
will affect the children too, and the courts are better at realising
that now.
The court then normally asks for a report from a children and family
reporter (CAFCASS) on child contact. They will
visit both parents separately, and also talk to the children before
going back to the courts with their report.
If it’s a very tricky case, or if they think the children’s views
are different from both mum and dad, they may decide the children
can have their own solicitor. They can also decide that the case
should be transferred to the County court; or transferred to the
High Court.
Directions to CAFCASS
a. Where the court orders a “welfare report under section
7 of the Children Act 1989” in a disputed contact/ domestic
violence case, the CAFCASS person is supposed to find out about
possible harm to the children and the resident parent before,
during and after contact, and to “make particular efforts to ascertain
the wishes and feelings of the children concerned in the light
of the allegations of violence made”. In other words, they have
to interview the children properly and fairly if they’re old enough
to have a view.
b. Where the court has found out there is domestic violence,
they must let CAFCASS know all the right information as soon as
possible.
c. If there is domestic violence and the resident parent and
children are in a refuge/safe house, the court must be careful
not to let the other parent know where they are (unless there
are very good reasons why).
If the courts decide to allow Contact before a full hearing
They have to take into account the matters set out in section
1(3) of the Children Act 1989 (" the welfare check-list"
); This is, basically:
-
the known wishes and feelings of the child concerned (taking
into account his age and understanding). Basically, courts won’t
take a lot of notice of two year olds saying they can’t be bothered
to see a parent, but they will let teenagers decide for themselves,
for example, and most believe that children of age 10 know their
own minds well enough to be listened to.)
-
his physical, emotional and educational needs
-
the likely effect of any change in his circumstances
-
his age, sex, background and any characteristics of his which
the court considers relevant
-
any harm which he has suffered or is at risk of suffering
-
how capable each of his parents, and any other person in relation
to whom the court considers the question to be relevant, is
of meeting his needs. They are looking for major problems, not
“he lets them stay up an hour later than I agreed to” or “she
feeds them sweets on Fridays and I don’t agree with sweets as
I think they encourage bad eating habits”. It’s not a parenting
contest. The court wants to know if the parent is either safe
or dangerous, and knows the basics of looking after a
child.
The court must consider the likely risk of harm to the child,
whether physical and / or emotional, if contact is either
granted or refused.
The court must also consider, if it decides contact is in the interests
of the child, how to go about this. Whether it should be supervised,
and if so, who by. The court must do what they can to ensure that
the child and the resident parent are as safe as possible before
during and after any contact.
The court should also consider whether it should use section
42(2)(b) of the Family Law Act 1996 to make a “non-molestation
order” – in other words, order that the other parent must
not go near the family or harass them.
The court should also consider whether the parent asking for contact
should seek advice and / or treatment before contact can happen,
or to help the court find out the likely risk of harm to the child
from that person at the final hearing.
The final hearing
The court should, wherever possible, find out the facts of what
happened regarding domestic violence. They don’t need to prove it
to Criminal Law standards. They can instead work out the probability
of it being right, and its effect on the child and the resident
parent.
The court needs to consider the welfare checklist again. See above.
It also needs to make sure the child and resident parent are safe
before, during and after contact.
The court needs to check whether or not the reason the parent is
seeking contact is really a desire to do the best for their child,
or whether they are using the courts and contact as a way of continuing
violence or intimidation or harassment of the other parent. Some
do. If they do, it’s possible to get the courts to stop them in
some cases.
The courts should find out if the parent seeking contact understands
the effect of past and future violence on the other parent and the
children concerned.
and in particular whether that parent has the ability to change
and/or to behave appropriately. A violent parent demanding to see
the children is not enough. The courts may expect them to show how
they’re going to change, and to prove that they are safe
now.
Matters to be considered where contact is ordered in a case where
findings of domestic violence have been made
If there has been violence, but the courts hear all the evidence
and think that contact can still happen in some way, the courts
should still carefully decide:
a. whether or not contact should be supervised, and if
so, by who. ( It’s worth checking that this is always going to
be a qualified person, not someone who has no experience and no
clue about domestic violence.)
b. what advice or treatment should happen for the person who
was violent and who is asking for contact.
c. whether the court should use Section 42(2)(b) of the
Family Law Act 1996 to make a non-molestation order to
stop the person from continuing to be abusive to the family;
d. whether contact should be for a short time to see what happens,
then back to court again, or whether we need any other safety
measures.
e. setting a date for the contact order to be reviewed, and making
sure the next court has full information about the contact order.
Information about local facilities
1.8 The court should find out what facilities are available locally
to the court to assist parents who have been violent to their partners
and / or their children, and, where appropriate, should force violent
parents to use those facilities.
Reasons
1.9 The court should always explain how the facts it heard about
domestic violence have influenced what it decided for child contact;
and in particular where the court has found domestic violence but
still makes an order for contact, the court should always
explain why it takes the view that contact is in the best interests
of the child.
Separate Waiting Areas at Court
The court guidelines finishes by saying, “Although not part of
our formal guidelines, we think that all courts hearing applications
where domestic violence is alleged should review their facilities
at court and should do their best to ensure that there are separate
waiting areas for the parties in such cases and that information
about the services of Victim Support and other supporting agencies
is readily available.”
Quite right too.
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