Report
to the Lord Chancellor by the Children Act subcommittee of the advisory
board on family law on the question of parental contact in cases
where there is domestic violence April 2002.
http://www.dca.gov.uk/family/abfla/dvconreport.pdf
SECTION
5
In every
case in which domestic violence is put forward as a reason for refusing
or limiting contact the court should at the earliest opportunity
consider the allegations made (and any answer to them) and decide
whether the nature and effect of the violence alleged by the complainant
(or admitted by the respondent) is such as to make it likely that
the order of the court for contact will be affected if the allegations
are proved.
Steps to
be taken where the court forms the view that its order is likely
to be affected if allegations of domestic violence are proved
Where the
allegations are disputed and the Court forms the view that the nature
and effect of the violence alleged is such as to make it likely
that the order of the court will be affected if the allegations
are proved the court should:
(a) consider
what evidence will be required to enable the court to make findings
of fact in relation to the allegations;
(b) ensure
that appropriate directions under section 11(1) of the Children
Act 1989 are given at an early stage in the application to enable
the matters in issue to be heard as speedily as possible; including
consideration of whether or not it would be appropriate for there
to be an initial hearing for the purpose of enabling findings
of fact to be made.
(c) consider
whether an order for interim contact pending the final hearing
is in the interests of the child; and in particular that the safety
of the child and the residential parent can be secured before
during and after any such contact.
(d) direct
a report from a court welfare officer on the question of contact
unless satisfied that it is not necessary to do so in order to
safeguard the child's interests;
(e) subject
to the seriousness of the allegations made and the difficulty
of the case consider whether or not the children in question need
to be separately represented in the proceedings; and, if the case
is proceeding in the Family Proceedings Court whether or not it
should be transferred to the County court; if in the County Court
whether or not it should be transferred to the High Court for
hearing.
Directions
to the Court Welfare Officer in cases involving domestic violence
Where the
court orders a welfare officer's report under section 7 of the Children
Act 1989 in a disputed application for contact in which it considers
domestic violence to be a relevant issue, the order of the court
should contain specific directions to the court welfare officer
to address the issue of domestic violence; to make an assessment
of the harm which the children have suffered or which they are at
risk of suffering if contact is ordered; to assess whether the safety
of the child and the residential parent can be secured 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.
Where the
court has made findings of fact prior to the court welfare officer
conducting his or her investigation, the court should ensure that
either a note of the court’s judgment or of the findings of
fact made by the court is made available to the court welfare officer
as soon after the findings have been made as is practicable.
Where in
a case involving allegations of domestic violence the whereabouts
of the child and the residential parent are known to the court but
not known to the parent seeking contact; and where the court takes
the view that it is in the best interests of the child or children
concerned for that position to be maintained for the time being,
the court should give directions designed to ensure that any court
welfare officer’s report on the circumstances of the residential
parent and the child does not does not reveal their whereabouts,
whether directly or indirectly.
Interim
Contact pending a full hearing
In deciding
any question of interim contact pending a full hearing the court
should: -
(a) specifically
take into account the matters set out in section 1(3) of the Children
Act 1989 ("the welfare check-list")
(b) give
particular consideration to the likely risk of harm to the child,
whether physical and / or emotional, if contact is either granted
or refused.
(c) consider,
if it decides such contact is in the interests of the child, what
directions are required about how it is to be carried into effect;
and, in particular, whether it should be supervised, and if so,
by whom; and generally, in so far as it can, ensure that any risk
of harm to the child is minimised and the safety of the child
and residential parent before during and after any such contact
is secured.
(d) consider
whether it should exercise its powers under section 42(2)(b) of
the Family Law Act 1996 to make a non-molestation order;
(e) consider
whether the parent seeking contact should seek advice and / or
treatment as a precondition to contact being ordered or as a means
of assisting the court in ascertaining the likely risk of harm
to the child from that person at the final hearing.
Matters
to be considered at the final hearing
At the final
hearing of a contact application in which there are disputed allegations
of domestic violence: -
(a) the
court should, wherever practicable, make findings of fact as to
the nature and degree of the violence which is established on
the balance of probabilities and its effect on the child and the
parent with whom the child is living;
(b) in
deciding the issue of contact the court should, in the light of
the findings of fact which it has made, apply the individual items
in the welfare checklist with reference to those findings; in
particular, where relevant findings of domestic violence have
been made, the court should in every case consider the harm which
the child has suffered as a consequence of that violence and the
harm which the child is at risk of suffering if an order for contact
is made and only make an order for contact it can be satisfied
that the safety of the residential parent and the child can be
secured before during and after contact.
Matters
to be considered where findings of domestic violence are made
In each
case where a finding of domestic violence is made, the court should
consider the conduct of both parents towards each other and towards
the children; in particular, the court should consider;
(a) the
effect of the domestic violence which has been established on
the child and on the parent with whom the child is living;
(b) whether
or not the motivation of the parent seeking contact is a desire
to promote the best interests of the child or as a means of continuing
a process of violence against or intimidation or harassment of
the other parent;
(c) the
likely behaviour of the parent seeking contact during contact
and its effect on the child or children concerned;
(d) the
capacity of the parent seeking contact to appreciate the effect
of past and future violence on the other parent and the children
concerned;
(e) the
attitude of the parent seeking contact to past violent conduct
by that parent; and in particular whether that parent has the
capacity to change and / or to behave appropriately.
Matters
to be considered where contact is ordered in a case where findings
of domestic violence have been made
Where the
court has made findings of domestic violence but, having applied
the welfare checklist, nonetheless considers that direct contact
is in the best interests of the child or children concerned, the
court should consider (in addition to the matters set out above)
what directions are required to enable the order to be carried into
effect under section 11(7) of the Children Act 1989 and in particular
should consider:
(a) whether
or not contact should be supervised, and if so, by whom;
(b) what
conditions (for example by way of seeking advice or treatment)
should be complied with by the party in whose favour the order
for contact has been made;
(c) whether
the court should exercise its powers under section 42(2)(b) of
the Family Law Act 1996 to make a non-molestation order;
(d) whether
such contact should be for a specified period or should contain
provisions which are to have effect for a specified period;
(e) setting
a date for the order to be reviewed and giving directions to ensure
that the court at the review has full information about the operation
of the order.
Information
about local facilities
The court
should also take steps to inform itself (alternatively direct the
court welfare officer or the parties to inform it) of the facilities
available locally to the court to assist parents who have been violent
to their partners and / or their children, and, where appropriate,
should impose as a condition of future contact that violent parents
avail themselves of those facilities.
Reasons
In its judgment
or reasons the court should always explain how its findings on the
issue of domestic violence have influenced its decision on the issue
of contact; and in particular where the court has found domestic
violence proved but nonetheless makes an order for contact, the
court should always explain, whether by way of reference to the
welfare check-list or otherwise why it takes the view that contact
is in the best interests of the child.
NOTE
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.
THE
BOARD’S SUMMARY OF THE CURRENT LAW
(1)
INTRODUCTION
Applications
by parents for contact to their children are heard at every level
in the Family Justice System. They are thus heard by lay justices
and stipendiary magistrates in the Family Proceedings Court, by
selected circuit judges, district judges, recorders and assistant
recorders in the county court, and by judges of the High Court.
In London, applications are also heard by the district judges of
the Principal Registry.
There is
general agreement amongst the judiciary at every level that contact
applications are often the most difficult to decide. Each case has
to be decided on its particular facts: in each case many different
factors have to be balanced against each other in the context of
what is often a highly complex family dynamic.
Our consultation
has confirmed the existence of a perception in many quarters that
the Children Act 1989 and the cases decided under it place too much
weight on the importance of parental contact with children after
the relationship between their parents has broken down; and that
as a consequence the courts do not properly address the issue of
domestic violence when it is raised in the context of an application
for contact.
There is
a further perception, also confirmed in a number of responses to
the consultation, that the courts do not properly understand the
effect of domestic violence on residential parents and their children,
and therefore do not give it sufficient weight when deciding whether
or not contact is in the children's interests.
We understand
these concerns, and our recommended good practice guidelines are
designed to address them. At the same time, it remains our view
that the current law, properly understood, does enable the court
to address the issue of domestic violence and that the current framework
of the Children Act 1989 contains all the necessary mechanisms for
dealing with domestic violence where it is raised as a reason for
preventing, limiting or terminating contact.
We therefore
set out our views on the current law in some detail.
(2)
THE STATUTORY FRAMEWORK
The Children
Act 1989 (hereinafter called "the Act") does not mention
domestic violence, nor does it set out any presumption in favour
of, or against, parental contact with children. The Act provides
an essentially neutral, enabling framework which, at the same time,
in section 1, gives basic guidance to the courts on the way in which
a judicial discretion must be applied to questions relating to the
upbringing of a child. Contact by a non-residential parent with
a child is, of course, such a question.
Thus, when
the court determines the question of contact, "the child's
welfare shall be the court's paramount consideration" (section
1(1)), and the court must have regard to the general principle that
any delay in determining the question of contact is likely to prejudice
the welfare of the child (section 1(2)).
When the
court is considering whether to make, vary or discharge a contact
order (and the application is opposed) the court must have regard,
in particular, to what has become known as "the welfare check-list”
under section 1(3),
namely: -
(a) the
ascertainable wishes and feelings of the children concerned (considered
in the light of their age and understanding);
(b) their
physical, emotional and educational needs
(c) the
likely effect on them of any change in their circumstances
(d) their
age, sex, background and any of their characteristics which the
court considers relevant
(e) any
harm which they have suffered or are at risk of suffering;
(f) how
capable each of their parents is of meeting their needs and
(g) the
range of powers available to the court under the Act in the proceedings
in question.
The court
must not, however, make a contact order unless it considers that
doing so would be better for the child than making no order at all
(section 1(5): the "no order principle").
The court's
jurisdiction to make contact orders is contained in sections 10
and 11 of the Act (private law proceedings) and section 34 of the
Act (public law).
Private
law jurisdiction
A "private
law" contact order (that is to say an order made in proceedings
between children's parents or members of their wider families and
others in which there is no question of a local authority seeking
a care or supervision order in relation to the child) is defined
by section 8 as follows:
"A
contact order" means an order requiring the person with whom
a child lives, or is to live, to allow the child to visit or stay
with the person named in the order, or for that person and the child
otherwise to have contact with each other."
Under section
42 of the Family Law Act 1996, the court hearing an application
for contact can also make a nonmolestation order against a parent
in favour of the other parent or the person with whom the child
resides, or the child, even though no application for such an order
has been made by the other parent. This is an important and perhaps
under-used provision, to which we draw attention in our main report.
However,
by section 9(1) and (2) of the Children Act the court cannot make
a contact order under section 8 with respect to a child who is in
the care of a local authority.
Contact
with children in care is governed by section 34 of the Act.
Section
10 of the Act identifies the classes of persons who are entitled
to apply for contact orders as of right, and those who need the
permission of the court to make an application. The parent of a
child does not require the permission of the court to apply for
a contact order. In this context a father can apply for contact
whether or not he is married to the mother, and irrespective of
the fact that he does not have parental responsibility for the child
or children in question.
Under section
11(7) of the Act, the court has power to give directions about how
a contact order is to be carried into effect. By virtue of section
11(2) it can impose conditions which must be complied with by any
person (i) in whose favour the order is made; (ii) who is a parent
of the child concerned; (iii) who is not a parent of the child in
question but who has parental responsibility for the child; or (iv)
with whom the child is living and to whom the conditions are expressed
to apply.
Under section
11(7)(c) and (d) of the Act the court can make a contact order which
is to have effect for a specified purpose, or contain provisions
which are to have effect for a specified period; and can also make
"such incidental, supplemental or consequential provision as
it thinks fit."
Comment
In our opinion,
the statutory provisions relating to contact give the courts an
unfettered discretion to make orders which are in the best interests
of the child. In particular, the provisions of section 11(7) are
extremely wide and enable the court to impose a whole range of conditions
designed to ensure children's safety and wellbeing during contact.
In the context
of allegations of domestic violence, it therefore seems to us that
the provisions of particular relevance are: -
(1) the
paramountcy of welfare principle contained in section 1(1) of
the Act;
(2) section
1(3)(e) in the welfare checklist; and in particular any harm which
the child has suffered or is at risk of suffering;
(3) the
power of the court to impose conditions on a contact order under
section 11(7) and
(4) the
power on a contact application to make a nonmolestation order
under section 42 of the Family Law Act 1996.
Public
Law Jurisdiction
Parental
contact with children in care is governed by section 34 of the Act.
As this consultation is primarily concerned with private law applications,
we simply point out that under section 34(1) local authorities have
a duty to allow children in their care to have reasonable contact
with their parents, but may refuse contact for up to seven days
if they are satisfied that it is necessary to do so to safeguard
or promote the children's welfare and if the refusal is decided
upon as a matter of urgency. Any further or permanent refusal of
contact must be authorised by the court under section 34(4). Section
1 of the Act and the "welfare check list" under section
1(3) apply to applications for contact with children in care.
Contact
under the Family Law Act 1996 (the 1996 Act)
The provisions
of the 1996 Act (Part II of which is not yet in force) are in marked
contrast to those of the Children Act 1989, although any proceedings
for contact between spouses or former spouses are still governed
by the Children Act.
Section
1 of the 1996 Act is already in force, and section 1(c) provides
that where a marriage has broken down and is being brought to an
end, that objective should be achieved
(i) with
minimum distress to the parties and the children affected;
(ii) with
questions dealt with in a manner designed to promote as good a
continuing relationship between the parties and any children affected
as is possible in the circumstances; Section 1(d) provides: -
that any risk to one of the parties to a marriage, and to any
children, of violence from the other party should, so far as reasonably
practicable, be removed or diminished.
Under section
11 of the 1996 Act, where there are proceedings for divorce or separation,
and children of the family of the divorcing or separating spouses,
the court has a duty imposed on it to consider whether it should
exercise any of its powers under the Children Act (which, of course,
include the power to make or to refuse to make contact orders) in
relation to those children. In that process, by section 11(4)(c)
the court must have particular regard, on the evidence before it,
to (amongst other factors) (c) the general principle that, in the
absence of evidence to the contrary, the welfare of the child will
be best served by -
(i) his
having regular contact with those who have parental responsibility
for him and with other members of his family; and
(ii) the
maintenance of as good a continuing relationship with his parents
as is possible.
Section
11(4)(d) also requires the court to have regard to any risk to the
child attributable to (a) where the residential parent is to live;
(b) any person with whom the residential parent is living or proposes
to live; or (c) any other arrangements for his care and upbringing.
The 1996
Act does not directly affect the manner in which the courts deal
with contact applications under section 8 of the Children Act. It
is to be noted that section 11 of the 1996 Act does not require
the spouses to have made satisfactory arrangements for their children
as a condition precedent to a divorce or separation order being
made: all it requires is that the court should consider the exercise
of its powers. Where the court then takes the view that the circumstances
of the case require it (or may require it) to exercise any of its
powers under the Children Act and it is not in a position to exercise
any of those powers without giving further consideration to the
case and where it considers that there are exceptional circumstances,
it may direct that a divorce or separation order be not made until
the court orders otherwise. In deciding whether or not the circumstances
are or may be such as to require intervention, the welfare of the
child is paramount.
Section
11 of the 1996 Act is designed, accordingly, to put in place a protective
filter, designed to identify those cases in which the welfare of
children has not been properly considered by their parents in the
context of divorce or separation. Its application, however, is limited.
Whether or not it will be any more effective than the current statutory
provisions remains to be seen.
Section
11 will only come into force if Part II is implemented. As will
shortly be apparent, it does not seem to us that the general principle
expressed in section 11(4)(c) of the 1996 Act adds anything to the
principles established by the case law on the subject of contact.
It is moreover
clear to us that since all applications for contact are governed
by the Children Act 1989, the same principles must apply to contact
between the children of former cohabitants and their parents as
apply between the children of spouses or former spouses.
Before turning
to the case law, it is worth pointing out that Part IV of the Family
Law Act 1996, which is already in force, deals comprehensively with
the court's powers to protect spouses, cohabitants, former cohabitants,
and their children against domestic violence. It also gives the
courts wide powers to regulate the occupation of property.
Whilst there
may be issues of concern relating to the operation of Part IV, we
are of the view that it provides a coherent and comprehensive code
designed to protect parents and children against domestic violence,
and for that reasons we did not invite comments on the operation
of Part IV in the context of this consultation.
For completeness,
the Protection from Harassment Act 1997 makes it a criminal offence
to pursue a course of conduct amounting to harassment of a person,
or which causes a person to fear that violence will be used against
that person. The Act also creates a civil cause of action, for which
a "restraining harassment order" may be sought.
THE
CASE LAW
There is
a plethora of reported cases on contact. Perhaps because of this,
there is, in our view, a danger that the principles underlying the
attitude of the courts to contact where there is domestic violence
may have been misunderstood.
One of the
best expositions of judicial thinking in relation to contact generally
is that by Latey J in M v M (Child: Access) [1973] 2 All ER 81 at
88 where he said:
"....
where the parents have separated and one has the care of the child,
access by the other often results in some upset in the child.
Those upsets are usually minor and superficial. They are heavily
outweighed by the long term advantages to the child of keeping
in touch with the parent concerned so that they do not become
strangers, so that the child later in life does not resent the
deprivation and turn against the parent who the child thinks,
rightly or wrongly, has deprived him, and so that the deprived
parent loses interest in the child and therefore does not make
the material and emotional contribution to the child's development
which that parent by his companionship and otherwise would make."
This approach
has led to the current test about whether or not there should be
contact by a separated parent with a child being stated by the Court
of Appeal as follows:
"are
there here any cogent reasons why this father should be denied
access to his children?; or, putting it another way: are there
any cogent reasons why these two children should be denied the
opportunity of access to their natural father?": - Re H (Minors)
(Access) [1992] 1 FLR 148 per Balcombe LJ.
Given that
contact has been held to be the right of the child, not the parent,
the second question is now generally recognised to be the correct
one.
The reference
to "cogent reasons" is significant, since domestic violence
which has adversely affected the child and / or the child's mother
is clearly capable of being a "cogent reason" for refusing
contact.
One of the
difficulties faced by the courts in dealing with domestic violence
in the context of contact is that domestic violence varies so significantly
in nature, degree and effect. At one extreme, a minor scuffle leading
to a blow on the face struck in anger and frustration at the end
of a relationship lasting many years is undoubtedly domestic violence;
at the other, murder, rape, and psychological intimidation are also
all domestic violence.
As a consequence
of the infinite variations in the nature, degree and effect of domestic
violence, the English courts have taken the view that, in the context
of an application for contact, domestic violence cannot, of itself,
be said as a matter of principle to constitute a bar to contact.
Each case must inevitably be decided on its facts, and domestic
violence is usually one aspect of a very complex family dynamic.
There will be contact cases in which domestic violence is decisive
against contact. There will be others in which it will be peripheral:
see Re H (Contact: Domestic Violence [1998] 2 FLR 42 at 56A to D.
The most
recent comprehensive expression of the principles involved in contact
applications comes in a decision of the Court of Appeal, Re O (Contact:
Imposition of Conditions) [1995] 2 FLR 124 at 128, in which Sir
Thomas Bingham, Master of the Rolls (as he then was) set out, in
what he described as "a reasonably compendious way" some
"very familiar but none the less fundamental principles"
relating to contact. We print the full extract from the judgement
as Appendix 3 to this consultation paper.
In Re P
(Contact: Supervision) [1996] 2 FLR 314, the principles enunciated
by the Master of the Rolls in Re O (A Minor) (Contact: imposition
of conditions) [1995] 2 FLR 124 were summarised as follows: -
(1) Overriding
all else, as provided by s 1(1) of the 1989 Act, the welfare of
the child is the paramount consideration, and the court is concerned
with the interests of the mother and the father only in so far
as they bear on the welfare of the child.
(2) It
is almost always in the interests of a child whose parents are
separated that he or she should have contact with the parent with
whom the child is not living.
(3) The
court has power to enforce orders for contact, which it should
not hesitate to exercise where it judges that it will overall
promote the welfare of the child to do so.
(4) Cases
do, unhappily and infrequently but occasionally, arise in which
a court is compelled to conclude that in existing circumstances
an order for immediate direct contact should not be ordered, because
so to order would injure the welfare of the child.
(5) In
cases in which, for whatever reason, direct contact cannot for
the time being be ordered, it is ordinarily highly desirable that
there should be indirect contact so that the child grows up knowing
of the love and interest of the absent parent with whom, in due
course, direct contact should be established.
The phrase
used by Sir Thomas Bingham in the formulation of the second principle
is "almost always". In supporting it, the Master of the
Rolls cited the judgement of Balcombe LJ in Re J (A Minor) (Contact)
[1994] 1 FLR 729, 736B-C which is in these terms:
"But
before concluding this judgement I would like to make three general
points. The first is that judges should be very reluctant to allow
the implacable hostility of one parent (usually the parent who
has a residence order in his or her favour), to deter them from
making a contact order where they believe the child's welfare
requires it. The danger of allowing the implacable hostility of
the residential parent (usually the mother) to frustrate the court's
decision is too obvious to require repetition on my part."
Within the
fourth principle set out by the Master of the Rolls is a citation
from the judgement of Waite LJ in Re D (A Minor) (Contact: Mother's
Hostility) [1993] 2 FLR 1, 7G:
"It
is now well settled that the implacable hostility of a mother
towards access or contact is a factor which is capable, according
to the circumstances of each particular case, of supplying a cogent
reason for departing from the general principle that a child should
grow up in the knowledge of both his parents. I see no reason
to think that the judge fell into any error of principle in deciding,
as he clearly did on the plain interpretation of his judgement,
that the mother's present attitude towards contact puts D at serious
risk of major emotional harm if she were to be compelled to accept
a degree of contact to the natural father against her will."
Sir Thomas
Bingham MR drew attention to Waite LJ's reference to a serious risk
of major emotional harm. He went on:
“The
courts should not at all readily accept that the child's welfare
will be injured by direct contact. Judging that question the court
should take a medium-term and longterm view of the child's development
and not accord excessive weight to what appear likely to be short-term
or transient problems. Neither parent should be encouraged or
permitted to think that the more intransigent, the more unreasonable,
the more obdurate and the more uncooperative they are, the more
likely they are to get their own way.”
Finally,
the Master of the Rolls said of section 11(7) that it: -
"...
confers a wide and comprehensive power to make orders which will
be effective to ensure contact between the child and the non-custodial
parent where to do so is judged to promote the welfare of the
child."
Although
this description of section 11(7) emphasises its function as a means
of ensuring that contact of a given nature takes place, the section
is also plainly apt to ensure that, where contact is deemed to be
in the interests of the child, safeguards to protect the child's
welfare can be put in place. It is also wide enough, in our view,
to cover pre-conditions to contact taking place - for example that
a violent parent seek medical advice or psychotherapy or attend
a perpetrator programme before contact is considered.
Since the
decision in Re O (A Minor) (Contact: imposition of conditions) [1995]
2 FLR 124, the judges of the Family Division have sought to dispel
the misapprehension that "implacable hostility" automatically
means "irrational implacable hostility", with the possible
consequence that a woman who has good reason to be adamantly opposed
to contact is deemed to be irrational in her opposition. Thus in
Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48 at 53, Hale
J (as she then was) sitting with Staughton LJ in the Court of Appeal
said: -
"It
is important to bear in mind that the label 'implacable hostility'
is sometimes imposed by the law reporters and can be misleading.
It is, as Miss MacGregor points out, an umbrella term that sometimes
is applied to cases not only where there is hostility, but no
good reason can be discerned either for the hostility or for the
opposition to contact, but also to cases where there are such
good reasons. In the former sort of case the court will be very
slow indeed to reach the conclusion that contact will be harmful
to the child. It may eventually have to reach that conclusion
but it will want to be satisfied that there is indeed a serious
risk of major emotional harm before doing so. It is rather different
in the cases where the judge or the court finds that the mother's
fears, not only for herself but also for the child, are genuine
and rationally held; as indeed the court did in this case."
In our view,
Hale J was making a very important point which courts at first instance
hearing contact applications need to bear constantly in mind.
In Re P
(Contact: Discretion) [1998] 2 FLR 696 at 703-4, Wilson J helpfully
divided the concept of a mother's hostility to contact into three
main categories, as follows: -
"It
seems to me that a mother's hostility towards contact can arise
in three different situations. The first is where there are no
rational grounds for it. In such a case the court will be extremely
slow to decline to order contact and will do so only if satisfied
that an order in the teeth of the mother's hostility would create
a serious risk of emotional harm for the child. The second is
where the mother advances grounds for her hostility which the
court regards as sufficiently potent to displace the presumption
that contact is in the child's interests. In that case the mother's
hostility as such becomes largely irrelevant: what are relevant
are its underlying grounds, which the court adopts. The third
is where the mother advances sound arguments for the displacement
of the presumption but where there are also sound arguments which
run the other way. In such a situation, so it seems to me, the
mother's hostility to contact can of itself be of importance,
occasionally of determinative importance, provided, as always,
that what is measured is its effect upon the child."
In Re M
(Minors) (Contact: Violent Parent) [1999] 2 FCR 56, 68, the court
dismissed a father's appeal from justices who had refused to make
an order for contact in favour of a violent father. In doing so,
the court said:
"Often
in these cases where domestic violence has been found, too little
weight in my judgement is given to the 83 need for the father
to change. It is often said that, notwithstanding the violence,
the mother must nonetheless bring up the children with full knowledge
and a positive image of their natural father and arrange for the
children to be available for contact. Too often, it seems to me,
the courts neglect the other side of that equation which is that
a father, like this father, must demonstrate that he is a fit
person to exercise contact; that he is not going to destabilise
the family; that he is not going to upset the children and harm
them emotionally. This father needs to mend a very large number
of bridges. It is a slow, difficult and painful process. It may
involve him in apologies. It may involve him looking very hard
into himself to understand what is the origin of the violence
and the excessive consumption of alcohol.... it is very much for
the father to make the first move."
The most
recently reported cases add little to the debate except to highlight
the points discussed in our report and to re-emphasise the difficult
and intractable nature of the problem: - see In Re M (Contact: Family
Assistance: McKenzie Friend) [1999] 1 FLR 75; In Re W (Contact:
Parent’s Delusional Beliefs) [1999] 1 FLR 1263, Re K (Contact:
Mother’s Anxiety) [1999] 2 FLR 703; M v M (Parental Responsibility)
[1999] 2 FLR 737; Re P (Contact: Indirect Contact) [1999] 2 FLR
893.
As our main
report is being prepared for publication, however, we await the
outcome of consolidated appeals heard by the Court of Appeal on
22 and 23 March 2000, in which judgment has been reserved. The Lord
Chancellor, to whom our report was delivered on 29 February, kindly
agreed that it should be available to the Court of Appeal and to
the legal representatives of the parties to those appeals, and to
the Official Solicitor, who was invited by the Court of Appeal to
instruct leading counsel as amicus curiae in them. It is thus to
be anticipated that further guidance will very shortly be forthcoming
from the Court of Appeal.
We are of
the view that in cases where physical or psychological domestic
violence has been directed by a father at the mother and not at
the children, but where the children have witnessed the violence
or are aware of it, the court needs carefully to consider the effect
of that conduct on the children, and the messages, both open and
covert, which the father may be giving to the children in contact.
The traditional concept may have been that a father who abuses his
children's mother could, nonetheless, be a "good father"
to his children. That concept needs to be questioned. The same point
can be made where the mother is the perpetrator. We are increasingly
aware of intergenerational factors in which children learn violent
habits from their violent parents.
Whether
continuing or stopping contact will make any difference to that
process is a question that only research can attempt to answer,
but it is a point which needs to be borne in mind. It is to be observed
that in Re M (Minors) (Contact: Violent Parent) [1999] 2 FCR 56,
64, the evidence was that the child (a boy) returned from contact
with his father on one occasion and told his mother that when he
was a daddy, he could also strike her.
Summary
of the case law
It seems
to us that in the context of domestic violence, the propositions
to be derived from the case law on contact can properly be summarised
as follows: -
(1) Whilst
there is no legal presumption in favour of contact following parental
separation, the courts take the view that it is "almost always"
in the interests of children to have contact with the parent with
whom the child is not living for the reasons given by Latey J
in M v M (Child: Access) [1973] 2 All ER 81 (above). Parental
separation involves a loss to the child, and it is desirable that
that loss should so far as possible be made good by contact with
the non-residential parent: - see Re O (Contact: Imposition of
Conditions) [1995] 2 FLR 124 at 128, cited in full in Appendix
2. Contact will therefore be granted unless there are "cogent
reasons" against it.
(2) Domestic
violence is unacceptable. However, because it varies so significantly
in nature, degree and effect, it cannot be said as a matter of
principle that domestic violence by a father to the child's mother
of itself constitutes a bar to contact. Each case must inevitably
be decided on its facts including any harm the child has suffered.
Domestic violence can only be one factor in a very complex equation.
There will be contact cases in which it is decisive against contact.
There will be others in which it will be peripheral.
(3) Domestic
violence is undoubtedly capable, however, of being a "cogent
reason" why contact should not be ordered in a given case.
It may also be a "cogent reason" for refusing face to
face contact and ordering indirect contact - for example by means
of letters, cards and presents.
(4) A
mother who has suffered significant domestic violence should not
be perceived as irrationally "implacably hostile" but
should rather be seen as within the second or third of the categories
proposed by Wilson J in Re P (Contact: Discretion) [1998] 2 FLR
696 at 703-4.
Protecting
the child: Supervised contact; Contact Centres; Family Assistance
Orders; Conditions of Contact and Undertakings
In cases
in which the court comes to the conclusion that contact is in a
child's interests despite the fact that domestic violence has been
established, the question arises of the safeguards which may need
to be put in place to protect the child in question and the parent
who is caring for the child from further physical violence, harassment
or abuse. A common safeguard is for the contact to be supervised
either by a professional person or by a third party known to the
parents and trusted by both of them.
Where a
court welfare officer's report is ordered under section 7 of the
Children Act, the welfare officer frequently likes to see the children
concerned with both parents and/or individually for the purpose
of making an assessment of the relationship between the children
and their parents. Sometimes, the court directs a period or periods
of contact supervised by the court welfare officer as part of its
decision making process. Sometimes, where the court wishes to have
a trial period of supervised contact prior to a review and overall
reassessment, the court will order periods of contact supervised
by the court welfare officer who will then report to the court at
the end of the trial period.
Such orders
do not, however, provide a mechanism for long term supervision of
contact where that is found to be necessary. The only specific mechanism
in the Children Act 1989 for professional supervision of contact
is the Family Assistance Order in section 16: - see Leeds County
Council v C [1993] 1 FLR 269. Such an order requires "(a) a
probation officer to be made available; or (b) a local authority
to make an officer of the local authority available, to advise,
assist and (where appropriate) befriend any person named in the
order".
The persons
who may be named in the order are "(a) any parent or guardian
of the child; (b) any person with whom the child is living or in
whose favour a contact order is in force with respect of the child;
(c) the child himself."
Before a
family assistance order can be made the court must be satisfied
that the circumstances of the case are exceptional and that it has
obtained the consent of very person to be named in the order other
than the child. The order can only have effect for six months or
less. These provisions plainly limit the scope of such orders. We
are advised by the Court Service statistics branch that the highest
number of family assistance orders made in any one year was 1060
in 1996: since then the numbers have declined to 1009 in 1997 and
864 in 1998. No details of the circumstances in which these orders
were made is available.
A local
authority can only be required to make an officer available if it
agrees, or if the child lives within its area. Furthermore, if the
local authority says it does not have the resources to operate a
family assistance order, there is no mechanism to require it to
do so: - see Re C (Family Assistance Order) [1996] 1 FLR 425.
It follows
that if long term supervision of contact is required, the parties
themselves, usually with the assistance of their lawyers, have to
devise a system which depends on the good will of a third party.
Contact
Centres
According
to the Annual Report for 1998 of the National Association of Child
Contact Centres, there are 260 Child Contact Centres in England
and Wales, staffed by over 4,000 volunteers and used by 2000 children
every week. The Association describes Child Contact Centres as "neutral
places where children of separated parents can meet with their non-resident
parent, and sometimes with other family members, in a safe and comfortable
environment when there is no viable alternative". This concept
has become known as “supported contact”.
There is
no doubt that contact centres provide an extremely valuable service.
However, they are, in the main, unable to provide supervised, as
opposed to supported contact, and the court should never impose
a requirement of supervision by a contact centre unless that service
is specifically offered.
Most contact
centres are run by volunteers. They offer a supportive environment
in which contact can take place. They are particularly useful in
cases where one parent finds it difficult to come into direct contact
with the other and requires a safe handover point.
As His Honour
Judge Victor Hall points out in the 1998 Annual Report, the courts
need to select with care the cases which are suitable for contact
at a contact centre. He gives a number of reasons why the potentially
disruptive cases should be excluded. Apart from the fact that they
are staffed by volunteers, he says that the Centres have to cope
with:
"the
most diverse and complicated human emotions, sometimes with ethnic
or cross community overtones which have to be accommodated in
as harmonious a way as possible. To introduce into that hotchpotch
a potentially disruptive element is something against which a
court should set its sights.... Many of the children who are having
contact at a Centre will have experienced bad parental conduct.
To inflict on a child in family A the boorish behaviour of a parent
from family B can hardly be said to be consistent with the principle
that a child's welfare is paramount as contained in the Children
Act 1989....disruptive conduct can have a very unnerving and unsettling
effect on those others in the Centre who are there for the purpose
of seeing their children in a calm and rational way. Thus the
court has to be vigilant before invoking the services of this
most previous resource to have regard to the overall scheme of
things within the Centres in its area...."
Conditions
under section 11(7) of the Children Act 1989 and undertakings
As made
clear above, it is this subsection of the Act which plainly provides
the most scope for the protection of parents and children in cases
where there has been domestic violence, but contact is nonetheless
held to be in the interests of the child. Apart from directions
about how a contact order is to be carried into effect (eg supervision,
neutral handover points), the sub-section is apt for imposing conditions
which must be fulfilled before contact takes place.
A further
mechanism available to the courts is to require parents who are
to have contact to give undertakings either about their conduct
during contact, or that they take specific steps as pre-conditions
to contact taking place.
Under this
heading would come the parent seeking contact obtaining a medical
or psychiatric report on themselves or attending a particular domestic
violence perpetrator programme.
Discussion
For the
reasons given in our report, it remains our opinion, at the end
of the consultation, that the combination of the essentially neutral
language of the Children Act and the relevant case law enables the
court fully to address the issue of domestic violence in the context
of contact, and to refuse contact in cases where there is domestic
violence and the totality of the evidence makes it contrary to the
interests of the child to have contact with the violent parent.
In particular,
the combination of the various factors in the welfare check list
under section 1(3) and the power to impose conditions under section
11(7) give the court the ability not only to make orders designed
to protect the child from harm in cases where, despite domestic
violence, the court decides contact should take place; it also enables
the court to impose conditions designed to ensure that contact will
not take place unless and until the parent who is to have contact
has addressed the issue of violence and the court can be satisfied
that neither the parent caring for the child, nor the child is at
risk of further violence. It is for these reasons that we remain
of the view that domestic violence in the context of contact is
capable of being properly addressed by the court without a change
in the substantive law.
The question
at the heart of the consultation is whether or not a statutory code
is required to counteract what many of our respondents perceive
as the shortcomings of the present case law, so that the court has
a specific obligation, imposed by statute, to address the issue
of domestic violence. That is why we asked the question: if the
Children Act 1989 needs amendment, do we need a rebuttable statutory
presumption against contact where domestic violence is proved?
The consultation,
however, also addressed broader questions. Is our approach to contact
generally the right one? Is the principle expressed in section 11(4)(c)
of the Family Law Act 1996 and in the reported cases correct? And
in cases where there is domestic violence, do we give sufficient
weight to the effect of that violence on the children concerned,
and the risk that continuing contact with a violent parent may contribute
to the development of intergenerational patterns of violent behaviour?
These, accordingly, are the questions which we address in our report.
Extract
from the judgement of Sir Thomas Bingham MR in Re O (A Minor) (Contact:
imposition of conditions) [1995] 2 FLR 124.
It may perhaps
be worth stating in a reasonably compendious way some very familiar
but none the less fundamental principles. First of all, and overriding
all else as provided in s 1(1) of the 1989 Act, the welfare of the
child is the paramount consideration of any court concerned to make
an order relating to the upbringing of a child. It cannot be emphasised
too strongly that the court is concerned with the interests of the
mother and the father only in so far as they bear on the welfare
of the child.
Secondly,
where parents of a child are separated and the child is in the day-to-day
care of one of them, it is almost always in the interests of the
child that he or she should have contact with the other parent.
The reason for this scarcely needs spelling out. It is, of course,
that the separation of parents involves a loss to the child, and
it is desirable that that loss should so far as possible be made
good by contact with the non-custodial parent, that is the parent
in whose dayto- day care the child is not. This has been said on
a very great number of occasions and I cite only two of them. In
Re H (Minors) (Access) [1992] 1 FLR 148 at p 151A, Balcombe LJ quoted,
endorsing as fully as he could, an earlier passage in a judgement
of Latey J in which that judge had said:
`... where
the parents have separated and one has the care of the child,
access by the other often results in some upset in the child.
Those upsets are usually minor and superficial. They are heavily
outweighed by the long-term advantages to the child of keeping
in touch with the parent concerned so that they do not become
strangers, so that the child later in life does not resent the
deprivation and turn against the parent who the child thinks,
rightly or wrongly, has deprived him, and so that the deprived
parent loses interest in the child and therefore does not make
the material and emotional contribution to the child's development
which that parent by its companionship and otherwise would make.'
My second
citation is from Re J (A Minor) (Contact) [1994] 1 FLR 729 at p
736B-C, where Balcombe LJ said:
'But before
concluding this judgement I would like to make three general points.
The first is that judges should be very reluctant to allow the
implacable hostility of one parent (usually the parent who has
a residence order in his or her favour), to deter them from making
a contact order where they believe the child's welfare requires
it. The danger of allowing the implacable hostility of the residential
parent (usually the mother) to frustrate the court's decision
is too obvious to require repetition on my part.'
Thirdly,
the court has power to enforce orders for contact, which it should
not hesitate to exercise where it judges that it will overall promote
the welfare of the child to do so. I refer in this context to the
judgement of the President of the Family Division in Re W (A Minor)
(Contact) [1994] 2 FLR 441 at p 447H, where the President said:
`However,
I am quite clear that a court cannot allow a mother, in such circumstances,
simply to defy the order of the court which was, and is, in force,
that is to say that there should be reasonable contact with the
father. That was indeed made by consent as I have already observed.
Some constructive step must be taken to permit and encourage the
boy to resume contact with his father.'
The President
added:
`I wish
to make it very clear to the mother that this is an order of the
court. The court cannot be put in a position where it is told,
"I shall not obey an order of the court".'
Fourthly,
cases do, unhappily and infrequently but occasionally, arise in
which a court is compelled to conclude that in existing circumstances
an order for immediate direct contact should not be ordered, because
so to order would injure the welfare of the child. In Re D (A Minor)
(Contact: Mother's Hostility) [1993] 2 FLR 1 at p 7G, Waite LJ said:
`It is
now well settled that the implacable hostility of mother towards
access or contact is a factor which is capable, according to the
circumstances of each particular case, of supplying a cogent reason
for departing from the general principle that a child should grow
up in the knowledge of both his parents. I see no reason to think
that the judge fell into any error of principle in deciding, as
he clearly did on the plain interpretation of his judgement, that
the mother's present attitude towards contact puts D at serious
risk of major emotional harm if she were to be compelled to accept
a degree of contact to the natural father against her will.'
I simply
draw attention to the judge's reference to a serious risk of major
emotional harm. The courts should not at all readily accept that
the child's welfare will be injured by direct contact. Judging that
question the court should take a medium-term and long-term view
of the child's development and not accord excessive weight to what
appear likely to be shortterm or transient problems. Neither parent
should be encouraged or permitted to think that the more intransigent,
the more unreasonable, the more obdurate and the more unco-operative
they are, the more likely they are to get their own way. Courts
should remember that in these cases they are dealing with parents
who are adults, who must be treated as rational adults, who must
be assumed to have the welfare of the child at heart, and who have
once been close enough to each other to have produced the child.
It would be as well if parents also were to bear these points in
mind.
Fifthly,
in cases in which, for whatever reason, direct contact cannot for
the time being be ordered, it is ordinarily highly desirable that
there should be indirect contact so that the child grows up knowing
of the love and interest of the absent parent with whom, in due
course, direct contact should be established. This calls for a measure
of restraint, common sense and unselfishness on the part of both
parents. If the absent parent deluges the child with presents or
writes long and obsessive screeds to the child, or if he or she
uses his or her right to correspond to criticise or insult the other
parent, then inevitably those rights will be curtailed. The object
of indirect contact is to build up a relationship between the absent
parent and the child, not to enable the absent parent to pursue
a feud with the caring parent in a manner not conducive to the welfare
of the child.
The caring
parent also has reciprocal obligations. If the caring parent puts
difficulties in the way of indirect contact by withholding presents
or letters or failing to read letters to a child who cannot read,
then such parent must understand that the court can compel compliance
with its orders; it has sanctions available and no residence order
is to be regarded as irrevocable. It is entirely reasonable that
the parent with the care of the child should be obliged to report
on the progress of the child to the absent parent, for the obvious
reason that an absent parent cannot correspond in a meaningful way
if unaware of the child's concerns, or of where the child goes to
school, or what it does when it gets there, or what games it plays,
and so on. Of course judges must not impose duties which parents
cannot realistically be expected to perform, and it would accordingly
be absurd to expect, in a case where this was the case, a semi-literate
parent to write monthly reports. But some means of communication,
directly or indirectly, is essential if indirect contact is to be
meaningful, and if the welfare of the child is not to suffer.
GUIDANCE
TO AREA PROBATION SERVICES ON FAMILY COURT WELFARE SERVICE AND DOMESTIC
VIOLENCE
This guidance
is located within the framework of the ACOP Position Statement on
Domestic Violence (May 1996). It seeks to reinforce and extend that
statement in the context of the work of the Family Court Welfare
Service. The guidance is Family Court Welfare Service-specific and
practical and complements the wider discussion of domestic violence
available within the ACOP statement. It addresses operational issues
which face both FCWOs and first line managers; it does not set out
to address strategic management issues in respect of domestic violence.
The guidance provides a starting point for the creation of more
detailed local policies. Services should ensure that consideration
of domestic violence is an integral part of their management of
risk strategy.
Context
Although
domestic violence has been the subject of academic study and interest
since the late 1970s(1) it is only in the last five years or so,
that there has been wider concern in society. FCWOs have become
increasingly aware of the widespread nature and significance of
domestic violence within separation and divorce. Work by Mullender
and Morley(2) and others has attuned the Family Court Welfare Service
to the deleterious effects of domestic violence on children, who
either witness it or themselves become victims of it. Similarly,
work by Radford and Hestor(3) has heightened awareness of how issues
of residence and contact can be used to sustain and continue a violent
spousal relationship. FCWOs, therefore, need to approach their work
in a careful and organised way.
Definition
This paper
uses the definition suggested by the ACOP Position Statement, using
the Home Affairs Committee definition:
“Any
form of physical, sexual or emotional abuse which takes place
within the context of a close relationship. In most cases, the
relationship will be between partners (married, cohabiting or
otherwise) or ex-partners”.
It goes
on to say:
“Domestic
violence also takes place within gay or lesbian relationships,
intergenerationally, and very occasionally in heterosexual relationships
when the man is the victim. However, research indicates that in
the great majority of cases the abuser is male and the victim
female. This statement will therefore focus on the issue of violence
and abuse towards women by men. It is important that any intervention
by Probation Services does not reinforce gender stereotypes. It
is equally important to recognise that women from ethnic minority
groups may face particular difficulties that result from a combination
of sexism and racism”.
Objectives
of Guidance
To ensure
that FCWOs approach domestic violence issues in a sensitive and
informed manner, and give parties and their legal representatives
confidence that the issue is considered important, and that fears
of further violence are being heard and taken into consideration.
To help
Service managers to promote best practice and by creating a safe
environment to:
(i) minimise
risk of violence
(ii) reduce
fears of violence
To promote
understanding of the wide-ranging and negative effects of domestic
violence on children and their behaviour.
To promote
understanding of the impact of violence on women and their ability
to care for their children.
To ensure
that children are protected.
Principles
Domestic
violence is an abuse of power which will not be condoned.
Services
need to work actively towards implementing antioppressive practices.
In accordance
with National Standard parties will be informed clearly and in writing
that it is their right to be seen separately from their former partner
without detriment to their case.
The FCWS
recognise that there can, in some circumstances, be a conflict between
the interests of the child, and the interests of the survivor of
domestic violence. In the interests of the child, child protection
procedures may need to be invoked.
General
FCWOs should
be alert to the possibility of domestic violence even when it is
not alleged. It is recommended that FCWOs use a ‘screening
schedule’ (examples to follow), which will facilitate disclosure
of domestic violence, in their work. FCWS staff should be aware
of the effects of domestic violence on children and the correlation
of domestic violence and child abuse.
FCWOs’
judgements and assessments in respect of domestic violence will
be affected by racism, their level of understanding, where they
position themselves on issues of race, ethnicity and culture. Managers
and FCWOs have a responsibility to ensure that intervention is based
on sound assessment which avoids prejudice and misunderstanding.
Agreements
with Courts
Written
agreements with courts should refer to the need to be alert to issues
of domestic violence and make provision for the routine collection
and exchange of information relating to domestic violence.
First
Directions Hearings
FCWOs should
review the court file to see whether there are any indicators of
violence between the parties.
Where domestic
violence is thought to be present the FCWOs should plan with the
District Judge/Court Clerk how the directions appointment is to
be handled. The safety of the woman and the children must be secured.
Where the
survivor is unrepresented it is particularly important for the FCWO
to see her first. The FCWO should explain what will take place and
check that the woman has knowledge of information and resources
to make herself and her dependants safe. She should be advised to
seek legal representation and advice.
It is not
generally appropriate in these circumstances to see the parties
together or to attempt conflictresolution, whether on a privileged
or non-privileged basis. Referral for medication is not generally
appropriate. There will, however, be occasions when the woman concerned
states a preference for a joint meeting; in such circumstances her
preference should be acknowledged and acted upon.
Allocation
of Court Welfare Report
Where an
FCWO has been in court at the time a court welfare report is ordered,
she/he should ensure that information regarding domestic violence
reaches the office/unit responsible for allocation, alongside the
court order. They will always take note of:
¨
Allegations of and convictions for violence by either party.
¨
Injunctions and other court orders issued in proceedings between
the parties which stem from allegations of violence.
¨
Objections to joint interviews.
¨
Non-disclosure of addresses.
Other
Directions Hearings
FCWOs should
recognise that they are able and have a responsibility to return
matters to court for further directions, where orders or arrangements
appear to place women and/or their dependants at risk.
SFCWOs will,
at the point of allocation, make as full an assessment of risk as
possible. In cases where the woman’s address is not disclosed,
the manager responsible for allocation should take action to ensure
that necessary action is taken to ensure that the address is not
discovered.
There will
be occasions when it will be necessary to make arrangements for
a report to be completed out of area in order to protect a party’s
address. Such arrangements should be made in accordance with Appendix
1 attached.
Statements
Allegations
of domestic violence which are included in parties’ statements
must always be taken seriously, and should inform the way in which
the case is handled.
Facilities
The FCWS
should take reasonable steps to provide accommodation which offers
a safe environment for parents, children and staff. Accommodation
is seldom purpose-built and Services should make every attempt to
maximise the safety aspects of any accommodation used. No absolute
guarantee of personal safety is, of course, possible.
Interviews
FCWOs should
ensure that women know that they have the choice to be seen on their
own and without detriment to their case. (National Standards 4.12
and 4.13). Where domestic violence is present, managers should give
due consideration to who will carry out the interviews with the
woman; generally it will be more appropriate for a female FCWO to
undertake the task. Where the FCWOs work in pairs there should never
be a pairing of two males working on the case. FCWOs should consider
whether it might be helpful for the woman to bring a supporter to
the interview with them. Where a supporter is in attendance, the
FCWO should have due regard to the confidential nature of information
discussed and ensure that those present at the interview are apprised
of issues relating to confidentiality. They should also be aware
of how the presence of a supporter is likely to affect the overall
management of the particular case.
If a joint
interview is agreed by the parties, it should be planned with regard
to the safety of the woman eg who to invite; timing of arrival;
separate rooms for waiting; supporter (friend, relative, Woman’s
Aid worker); woman to leave premises safely; coping strategies should
violence erupt. Gender and cultural implications should be considered
as an integral part of the planning process.
Home visits
should be planned with the same degree of forethought and consideration
of risk. Information about duration and location of home visit should
be left with the Service.
FCWOs need
to be familiar with dynamics which often flow from domestic abuse:
¨
Woman internalises negative views of self as mother.
¨
Intimidation results in only partial information about mother’s
arrangements for children.
¨
Reluctance to disclose future arrangements through fear of abuse
or threats.
Generally
questions should be framed in a way which allows women to reveal
the presence of violence or threat.
Refuges
and Other Resources
FCWOs should
beware viewing a woman’s proposed arrangements less favourably
if she is living in a refuge, as this is likely to be her first
step towards protecting herself and her dependants.
FCWOs should
have knowledge of supports for those subject to domestic violence
and help women to gain access to them.
Perpetrators
Wherever
possible, FCWOs should discuss the nature of their violence, their
attitudes to women and children with perpetrators and the effect
on women, as this will be central to an assessment of the case.
Referral
to an appropriate agency (where available) should be offered and
followed up.
Court
Welfare Reports
Reports
should provide an assessment of the effects of past domestic violence
on the woman and her dependants; future risk of domestic violence
should also be explicitly addressed.
FCWOs should
be aware of the effect domestic violence has on children, and this
should be addressed within the ‘welfare checklist’ (Section
1.3 Children Act 1989), with particular reference to harm.
Contact
In considering
the issue of contact, FCWOs need to be aware of possible misuse:
(a) Contact
with children may be used by a man to gain access to the woman.
(b) Contact
may be used in order to obtain the woman’s address.
(c) Contact
with children may allow the man to abuse or threaten them.
FCWOs should
be wary of using other family members for contact arrangements as
research has shown this can often result in the perpetrator gaining
access to the woman and so continuing the violence.
Where contact
is seen to be in the best interests of the children but there remains
a danger to the mother, supervised contact (ie by FWCO or social
worker, or at a contact centre designated specifically for that
purpose) is to be considered.
Where contact
centres are run ‘in-house’, managers must ensure guidance
to staff at the centres is available and understood. Contact centres
run through partnership should have guidance and procedures in place
as a contractual obligation, wherever possible.
Partnership
More generally
with regard to Partnership arrangements, Services should ensure
that the practice of Partnership agencies is consistent with and
reflects the aspirations of this guidance.
Services
should consider making screening for domestic violence a contractual
obligation on the part of the Partnership agency.
Consumer
Feedback
Family Court
Welfare Service should develop systems to provide consumer feedback.
The information obtained should be used to assess the success or
otherwise of local practices and to plan future provision.
REFERENCES:
(1) Dobash
and Dobash (1979)
‘Violence
Against Wives: A case against the Patriarchy’
(2) Mullender
and Morley (1995)
‘Domestic
Violence and Children: What do we know from Research?’
(3) Radford
and Hester (1992)
‘Domestic
Violence and access arrangements for children in Denmark and Britain’
