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‘Assessing Risk of Harm to Children and Parents' – a reset for disputes involving children?

Posted on 26 June 2020

The Government has on 25 June announced an "overhaul" of family courts to protect victims of domestic abuse, in particular those involved in private law children cases (usually disputes between parents). The announcement follows an expert panel report ("the Report") which followed an extensive public consultation and which identified systemic issues with the way in which the Family Court deals with domestic abuse.  It notes that "Every day some of the most vulnerable people in our society come before the family courts, where difficult decisions are made in often highly emotive cases, and so it is crucial that the system is able to protect them from further harm and the risk of harm."

The proposed changes are numerous, wide-ranging and likely to be far-reaching from the point of view of the treatment of private law children cases by the Family Court.

Protections for victims attending court

"Special measures" are provisions that may be available to assist a vulnerable party participating in a court hearing. They include matters such as providing a separate entrance to the court building and separate waiting area and the use of screens in the courtroom. However, until now, they have not automatically been available – rather a judge must consider whether they are appropriate. Evidence provided during the consultation suggested that some judges felt reluctant to permit special measures in case it was seen as giving "preferential" treatment to the vulnerable party. The Government has now indicated that it will seek an amendment to the Domestic Abuse Bill currently passing through Parliament to ensure that victims of domestic abuse are automatically eligible for special measures in the Family Court.

Changes to approach in cases involving children

Unlike many of its continental counterparts, the English justice system is based on an "adversarial" approach – each party will present their case to the Judge, who will decide between them. Although cases involving children have always required Judges to have regard to the child's welfare, they still proceed on the basis of each parent presenting their own position and suggestions as to the best outcome for the child.

The Report notes that for many parents proceeding through the family justice system, and particularly those where abuse has been an issue, the adversarial approach heightens tension and can move focus onto the adults, rather than the voice and welfare of the child. It recommends that an investigative, problem-solving approach be adopted, with three phases –

  1. an initial investigation and information exchange phase, focussing on understanding what has been happening for the child and the impact of any abuse on the child and family;
  2. an adjudication phase, which would take place if no agreement could be reached after the first stage. This would be judge-led (rather than being based on each parent putting forward a case) and would focus on identifying any harm and risk, problem-solving and securing future welfare;
  3. a follow up phase – proactively following up three to six months after an order is made to see how it is working.

The Government has indicated that a form of investigative procedure will be trialled within the forthcoming Domestic Abuse Courts.

It will be important to see how the proposed investigative process would work in practice. However, the adoption of a less adversarial system for resolving disputes regarding children and a greater focus on the voice of the child should be welcomed. The best outcome for the child should always be at the centre of the court's approach.

Review of the presumption that the involvement of each parent in a child's life will further the child's welfare

Reform to the law in 2014 created a presumption that, unless there was a risk of harm, the involvement of a parent in the life of their child would further the child's welfare. That sentiment had been widely adopted by Judges for many years beforehand. Strenuous efforts were made to ensure that a child had an ongoing relationship with both parents. The reasoning behind this was laudable – where abuse is not an issue, robust protections are important to ensure that a parent with whom the child lives does not wrongfully utilise the system (including the delays that often occur in court proceedings) to damage the relationship between the child and other parent.

The Report sets out concern, however, by survivors of abuse and charities that the Family Court has a strong "pro-contact culture", and that the strenuous efforts to promote and progress contact can result in the court minimising or ignoring the risk of contact itself being used to further abuse. Evidence received during the consultation indicated that the voice of the child was not fully being listened to or heeded, particularly if the child did not want contact to take place. Nor was there sufficient follow-up to see how the child was finding any contact ordered. The Report recommended that the range of options for hearing from and representation and support for children be explored more fully.

Survivors felt that their allegations of abuse were minimised or disbelieved and that the emphasis was on making contact happen. As a result, abusers could continue their abuse by repeatedly bringing court proceedings and through their continued contact with the child.

The Government has confirmed that it will review the presumption of parental involvement in a child's life. It will also consider whether it should be easier to obtain an order that a parent cannot make an application to court without the court's permission. At the moment, such orders are usually only made in "exceptional" circumstances.

It may be that these aspects of the recommendations prove most difficult. Whilst it is of critical importance that an abuser should not be permitted to use the court system, or their contact with the child as a means of furthering abuse, the 2014 changes came into effect in part to combat the problem of an innocent parent that a child didn't live with being marginalised and excluded from the child's life. Although a review may be needed, balancing these potential harms will not be straightforward.

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