Child Contact Where Domestic Abuse is Alleged: Recent Changes
Domestic abuse is a serious social problem. It is perpetrated both by and against men and women of all races, classes and sexual orientation. It is not limited to physical violence, but includes coercive or controlling behaviour, sexual, financial and emotional forms of abuse.
When parties separate, and children are involved, the spectre of past domestic abuse is frequently one courts must grapple with, particularly when the alleged abuser denies such allegations.
A report by Mr Justice Cobb and the Women’s Aid Federation of England in 2016 makes for sombre reading, looking at 19 child homicides where contact with the perpetrator was arranged through the family court.
In response to this, on 2 October 2107 amended court rules on dealing with allegations of domestic abuse (which had already been in place for some time) came into force.
On 16 September 2017, Francis Gibb in The Times reported “children must not be allowed to have contact with a parent if there is any risk of psychological or physical abuse”. Do to the new rules really provide this?
The first thing a court must do is identify whether abuse is in issue. Parties, at the very outset, have the chance to set out if they believe there is a risk, so the court is aware at the very earliest opportunity. This has to be in a specific fashion, and not merely a vague, unspecified allegation.
The court is then required to consider the circumstances and must ask about any referrals to organisations such as Social Services. It may be at this stage that the alleged perpetrator admits what is said, and this should be recorded. If it is still denied, the court must consider how to proceed.
It may be that there has to be a separate hearing (known as a fact find) to establish if the allegations are made out, or proceed (in which case the matters must be dealt with later).
Another court hearing may be some time away, so the question usually then arises about what, if any contact, takes place in the mean time. The amended rules provide that “the court should not (order contact) unless it is satisfied that .. the order would not expose the child or the parent to an unmanageable risk of harm”. This is more nuanced than The Times article suggests, and contact can take place, so long as any risk can be managed.
Quite what that means will vary from case to case, and what may be available to manage that risk. Unfortunately, this may result in contact being denied to children whose parents are wrongly accused of abuse for some time, but the focus has shifted to protecting children, while these issues can be properly explored.
A similar procedure is in place if abuse is admitted by the perpetrator, or should the court find allegations of abuse to be true. The court must consider what the risk is of harm, and how that might be managed.
This may not mean stopping contact altogether, as that is a measure of last resort, but it may mean some form of supervision, or some kind of indirect contact. Again, that will vary from case to case.
You can also find out more information on the family pages of our website on all of these options. The family team at Whitehead Monckton have a wealth of experience providing guidance and advice in all areas relating to separation or divorce. If you wish to discuss any of the points raised in this article, please contact a member of the Family team.
Written by Jonathan Miller