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Assessing Risk of Harm to Children and Parents – a wake-up call on the treatment of private law children cases involving domestic abuse

Posted on 14 September 2020

An expert Panel Report on Assessing Risk of Harm to Children and Parents (the "Report") was published in June, alongside a Government implementation plan setting out both immediate and longer term changes that are proposed to private law children proceedings. The Report followed an extensive public consultation and identified systemic issues with the way in which the Family Court deals with domestic abuse. 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.

The Report raises concern about the way that allegations of domestic abuse are treated by the family courts. 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 Report considered there to be four themes underpinning the issues identified, namely:

  1. Resource constraints
  2. A "pro-contact" culture
  3. Working in silos, with different approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and a lack of communication between agencies
  4. The adversarial system, which places parents in opposition, and where there was perceived to be little or no involvement of the child

The recommendations made by the Report includes better protection for survivors of abuse who are participating in proceedings, as well as a new approach to cases involving children where there has been abuse.

In terms of protection for survivors, the Government has confirmed that alleged abusers are to be prevented from cross examining their victims (already a component of the Domestic Abuse Bill), but also that the Government intends to introduce an amendment to the Domestic Abuse Bill to ensure that victims of abuse are to be presumed eligible for special measures (such as providing a separate entrance to the court building, a separate waiting area and the use of screens in the courtroom when appearing in court).

Regarding the approach to cases involving children, 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:

  • 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;
  • 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; and
  • 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.

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. This sentiment had been widely adopted by Judges for many years beforehand.

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.

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.

Barbara Reeves says: "The findings of the Report are a call to everyone working in the family justice system to reconsider the way that cases involving children are resolved where there has been domestic abuse. This is particularly pertinent now, at a time when figures show that over 40,000 calls and contacts were made to the National Domestic Abuse Helpline during the first three months of lockdown. There has long been an emphasis on the importance of a child maintaining a face-to-face relationship with both parents following a relationship breakdown. Where there has been no abuse, that presumption of parental involvement is usually a positive one for the child. However, the report highlights that there are circumstances in which the "pro-contact culture" in the family courts might in fact lead to a continuation of abuse. The Report noted that there had not been sufficient follow-up in any case to see how the child was finding the contact, irrespective of whether abuse was an issue.  It recommended that the range of options for hearing from and representation and support for children be explored more fully. Careful consideration will need to be given to how to balance the competing interests in order to achieve the best outcome for the child and maintain safety for the survivor of abuse. The prospect of making proceedings involving children less adversarial is to be welcomed. Where parents are expected to work together in the interests of their child, often for many years to come, the current adversarial system often reinforces conflict, rather than helping resolve it."

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