05th Oct 2017

Domestic Violence, Divorce and Children

By Helen Greenfield

The Children and Families Act 2014, s11, introduced a rebuttable presumption that the involvement of each of the child’s parents in the life of the child will further the child’s welfare where it is safe and in the children’s best interests.

There is, however, growing awareness about the harm caused to children by being exposed to domestic violence.  The court therefore find themselves faced with the responsibility to balance the need for children to spend time with both parents whilst safeguarding them from harm.

Mrs Justice Butler Sloss (as she then was) alluded to this dilemma in Re L (a child) (contact: domestic violence); “As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion….. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to have been violent and the child.”  

This quote is taken from the leading case on the principles on which contact should be decided in cases of domestic violence. It concerned four separate appeals by fathers to the Court of Appeal, heard together. The appellant fathers were appealing to allow them direct contact with their respective children against a background of domestic violence between the spouses or partners. The Court of Appeal dismissed the four appeals against orders which allowed them indirect contact, but refused them direct contact.  The Court of Appeal held that there were no presumptions for or against contact to a violent parent. The only principle applicable was the welfare of the child as the paramount consideration as set out in the Children Act 1989;

  1. the effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by judges and advisers alike;
  2. it follows that alleged domestic violence is a matter that ought to be investigated and on which findings of fact should be made because if it is established, its effect on children exposed to it and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
  3. in assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he has done, and the steps taken to correct the deficiency in the perpetrator’s character;
  4. there should however be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor among many which may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the judge applying the welfare principle and the welfare check list.

Family Proceedings Rules 2010 (FPR 2010) PD 12J provides the procedural framework within which the court must consider the relevance and impact of domestic violence as the Court of Appeal advised in Re L. It applies to any family proceedings in the Family Court in which an application is made for a child arrangements order (CAO), or in which any question arises about where a child should live, or about contact, where the court considers that an order should be made, in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.

PD 12J provides that domestic violence and abuse is harmful to children, and/or puts them at risk of harm, whether they are subjected to violence or abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which violence or abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with violence or abuse, and may also suffer harm indirectly where the violence or abuse impairs the parenting capacity of either or both of their parents.

PD 12J underlines that, at all stages of the proceedings, the court must consider whether domestic violence is raised as an issue, and, if so, must:

  1. identify at the earliest opportunity the factual and welfare issues involved;
  2. consider the nature of any allegation, admission or evidence of domestic violence or abuse, and the extent to which it would be likely to be relevant in deciding whether to make a CAO and, if so, in what terms;
  3. give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; and
  4. ensure, where violence or abuse is admitted or proven, that any CAO in place protects the safety and wellbeing of the child and the parent with whom they are living, and does not expose them to the risk of further harm—in particular, the court must be satisfied that any contact ordered with a parent who has perpetrated violence or abuse is safe and in the best interests of the child.

It is heartening that such issues have now made their way into the statute book.  Courts now have the difficult job of applying such thinking to all decisions relating to CAOs.