Guidelines
for Good Practice on Parental Contact in cases where there is Domestic
Violence
Prepared by the Children Act Sub-Committee of the Lord Chancellor's
Advisory Board on Family Law April 2002
http://www.dca.gov.uk/family/abfldomviol.htm#top
Court
to give early consideration to allegations of domestic violence
1.1. 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
1.2. 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: -
- consider what evidence
will be required to enable the court to make findings of fact
in relation to the allegations;
- 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;
- 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;
- direct a report
from a children and family reporter on the question of contact
unless satisfied that it is not necessary to do so in order
to safeguard the child's interests;
- 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 Children and Family Reporter in cases involving domestic
violence
1.3. Where
the court orders a welfare 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
children and family reporter 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 children and family
reporter 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 children and family
reporter 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 welfare
report on the circumstances of the residential parent and the child
does not reveal their whereabouts, whether directly or indirectly.
Interim
Contact pending a full hearing
1.4. In
deciding any question of interim contact pending a full hearing
the court should: -
- specifically take
into account the matters set out in section
1(3) of the Children Act 1989 ("the welfare check-list");
- give particular
consideration to the likely risk of harm to the child, whether
physical and / or emotional, if contact is either granted or
refused;
- 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;
- consider whether
it should exercise its powers under section
42(2)(b) of the Family Law Act 1996 to make a non-molestation
order;
- 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
1.5. At
the final hearing of a contact application in which there are disputed
allegations of domestic violence: -
- 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;
- 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
1.6. 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:-
- the effect of the
domestic violence which has been established on the child and
on the parent with whom the child is living;
- 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;
- the likely behaviour
of the parent seeking contact during contact and its effect
on the child or children concerned;
- the capacity of
the parent seeking contact to appreciate the effect of past
and future violence on the other parent and the children concerned;
- 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
1.7 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 in paragraphs
5 and 6 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:
-
- whether or not contact
should be supervised, and if so, by whom;
- 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;
- whether the court
should exercise its powers under section
42(2)(b) of the Family Law Act 1996 to make a non-molestation
order;
- whether such contact
should be for a specified period or should contain provisions
which are to have effect for a specified period;
- 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
1.8 The
court should also take steps to inform itself (alternatively direct
the children and family reporter 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
1.9 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
1.10 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.
