Children who live in homes where domestic violence is present, often grow up in an unpredictable, tension-filled and fear dominated environment. A case of domestic abuse and violence between parents is a serious matter that is considered by the Court.
Contact with children in cases of domestic violence
During the proceedings, a Judge may determine that contact between the perpetrator of violence and the child should be supervised, reduced or in some cases contact should not take place at all. This article discusses the emotional and physical stress children face in homes of domestic violence, how Courts determine appropriate child arrangements and cases that are shaping today’s UK family Courts.
Children who witness domestic violence are more likely to be victims of abuse and live in constant fear that they are to blame. According to a report undertaken in 2016, Women’s Aid identified that 19 children were killed by their violent fathers in the last 10 years after being granted contact by Judges in Court. Throughout any Court proceedings involving children and their wellbeing; emotional and physical safety should be at the top of the Court’s priority.
What the Court considers – fact-finding hearing
When determining the appropriate child arrangements in homes of domestic abuse, the Court will need to establish the following:
- The past conduct of both parties;
- The impact of the abuse on the children;
- The motivation of the person seeking contact; and
- The ability of the offending parent to recognise their past conduct and be aware of the need to change and make a genuine effort to do so.
Known as a fact-finding hearing, the Judge determines the facts and ascertains the impact on the parties going forward, which, in turn, assists the Judge in making the appropriate child arrangements via a Court hearing.
Provided the Court is satisfied a fact-finding hearing is necessary to progress the case justly, the parties will have the opportunity of having significant allegations of domestic abuse addressed.
Distressing Court case example
The case of Re W (Children) [2012] EWCA Civ 528 helps to demonstrate the essential points considered by the Court.
In this case, the mother applied for a psychological assessment of the father and a further report from CAFCASS (the Children And Family Courts Advisory Support Service) before the Court considered further contact. The Judge refused the mother’s application and ordered that the father could have unsupervised contact outside the contact centre.
On appeal, it was found that the Judge had not considered a practice direction which looked at the following:
- The effect of domestic violence, which has been established on the child and on the parent with whom the child is living;
- The extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or maybe doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;
- The likely behaviour during contact of the parent seeking contact and its effect on the child;
- The capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;
- The attitude of the parent seeking residence or contact to past violence contact by that parent; and, in particular,
- Whether that parent has the capacity to change and to behave appropriately.
As seen in the above case, when a fact-finding hearing decision is made, the Judge may not have sufficient information to consider contact arrangements. Family lawyers are asked to consider these points in every case where a finding of domestic violence is made.
How Nelsons can help
Melanie Bridgen is a Partner in our expert Family Law team.
We have a team of specialist domestic violence solicitors who are experienced in protecting victims of domestic abuse and will respond quickly to your enquiry.
We can help if you are the victim of domestic violence or you are facing allegations of violence, abuse controlling and coercive behaviour. It is very important that you obtain independent advice on these matters as if findings of violence or abuse are made then they could have long term and far-reaching consequences.
If you need advice on any domestic abuse-related matter or have any other family law-related queries, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
Our team understand how distressing abuse is and handle all cases with sensitivity and professionalism. Please contact the team on 0800 024 1976 or contact us via our online form.
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