Domestic violence and contact orders

Whether and to what extent, if any, the court will take into account the issue of domestic violence when determining contact issues has long been an issue for family courts.

The President of the Family Division and Head of Family Justice made effective on 9 May the following practice ­directions in relation to the ­determination of these cases.

The practice direction applies to any family proceedings in the High Court, a county court or magistrates’ court in which an application is made for a ­residence or contact order in respect of a child under the Children Act 1898, or the Adoption and Children Act 2002, or in which any question arises about ­residence or contact between a child and a parent or other family member.

It is to be followed in any case in which it is alleged, or there is reason to suppose, that the subject child or a party has experienced domestic ­violence perpetrated by another party or that there is risk of such violence.

The term ‘domestic violence’ includes physical violence, threatening or ­intimidating behaviour and any other form of abuse which, directly or ­indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm (‘harm’ in relation to a child means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another; sections 31 (9) and 105 (1) of the Children Act 1989).

General principles

The court must, at all stages of the ­proceedings, consider whether ­domestic violence is raised as an issue, either by the parties or otherwise, and if so it must:

• Identify at the earliest opportunity the factual and welfare issues involved;
• Consider the nature of any ­allegation or admission of domestic violence and the extent to which any domestic violence which is admitted, or which may be proved, would be ­relevant in deciding whether to make an order about residence or contact and, if so, in what terms; and
• Give directions to enable the ­relevant facts and welfare issues to be determined expeditiously and fairly.

The court may direct a report under section 7 of the 1989 act either orally or in writing before it makes its ­determination.

Issuing of proceedings

The issuing of an application for ­residence or contact order, or the acknowledgement of an application, will trigger a referral to CAFCASS, which will carry out an initial screening in accordance with its safeguarding policies. The designated family judge, or in the magistrates’ court the ­justices’ clerk, will ensure prompt delivery of documents to CAFCASS. Any information and any risk ­assessments prepared by CAFCASS will be placed before the appropriate court for consideration and directions.

Where any information provided to the court before the first hearing ­indicates that there are issues of domestic violence which may be relevant to the court’s determination, the court may give directions about the conduct of the hearing and for written evidence to be filed by the parties before the hearing.

First hearing

At the first hearing, the court shall inform the parties of the content of any screening report or other ­information which has been provided by CAFCASS unless it considers that to do so would create a risk of harm to a party or the child.

The court must ascertain at the ­earliest opportunity whether domestic violence is raised as an issue and must consider the likely impact of that issue on the conduct and outcome of the ­proceedings. In particular, the court should consider whether the nature and effect of the domestic violence alleged is such that, if proved, the decision of the court is likely to be affected.

Admissions

Where, at any hearing, an admission of domestic violence to another person or the child is made by a party, the ­admission should be recorded in writing and retained on the court file.

Directions for a fact-finding ­hearing

A fact-finding hearing in relation to any disputed allegation of domestic ­violence may be necessary before the court can proceed to consider any final orders for residence or contact. Where the court determines that a fact-finding hearing is not ­necessary, the court shall record the reasons for that decision.

Where the court considers that a fact-finding hearing is necessary, it must give directions to ensure that the ­matters in issue are determined ­expeditiously and fairly, and in ­particular it should consider:

• Whether it is necessary to file ­written statements;
• Whether material is required from third parties; and
• Whether any other evidence is required to enable the court to make findings of fact.

Reports under section 7

Where domestic violence is raised as an issue, the court should consider ­directing that a report on the question of ­contact, or any other matters ­relating to the welfare of the child, be prepared under section 7 of the 1989 act by a CAFCASS officer, unless the court is ­satisfied that it is not ­necessary to do so to safeguard the child’s interests. The court may, at this stage, consider the extent to which it is appropriate to obtain information on the child’s wishes and feelings before findings of fact have been made.

Representation of the child

Subject to the seriousness of the allegations made, and the difficulty of the case, the court shall consider whether it is appropriate for the child, who is the subject of the application, to be made a party to the proceedings and be separately represented. In such an instance, magistrates’ court proceedings may be transferred to a county court. Following any such transfer, the county court will give directions for the further conduct of the case that it considers appropriate.

Interim orders before ­determination of relevant facts

Where the court gives directions for a fact-finding hearing, the court should consider whether an interim order for residence or contact is in the child’s interests. In particular, it should ­consider whether the safety of the child and the residential parent would be secured before, during and after contact.

The court should take into account the matters set out in section 1(3) of the 1989 act or section 1(4) of the 2002 act (‘the welfare checklist’), as appropriate. It will give particular ­consideration to the likely effect on the child of any contact and any risk of harm, whether physical, emotional or psychological, which the child is likely to suffer as a consequence of making or declining to make an order.

Provisions are also now in place where the making of an interim contact order is being considered. These include:

• Arrangements to ensure that any risk of harm to the child is minimised;
• Whether the contact should be supervised or supported, and if so, where and by whom;
• The availability of appropriate ­facilities for that purpose;
• Whether it is in the best interests of the child to make an order for indirect contact.

The fact-finding hearing

At the fact-finding hearing the court should, wherever practicable, make findings of fact as to the nature and degree of any domestic violence which is established and its effect on the child, the child’s parents and any other relevant person.

At the conclusion of any fact-finding hearing the court should consider whether it is in the best interests of the child for the court to give further directions about the preparation or scope of any report under section 7. The court should also consider whether it might be assisted by any social work, ­psychiatric, psychological or other assessment of any party or the child, and if so (subject to any ­consents) make directions for such assessment to be undertaken and for the filing of any consequent report.

Any findings of fact on disputed ­allegations must at any subsequent hearing be listed before the same judge or, in the magistrates’ court, by at least one of the same justices, unless to do so would be impractical or cause undue delay.

In cases where domestic ­violence has occurred

Following any determination of the nature and extent of domestic ­violence, the court should consider whether any party should seek advice or treatment as a precondition to an order for ­residence or contact being made, or as a means of assisting the court in ­ascertaining the likely risk of harm to the child from that person.

Residence or contact orders in all cases where domestic violence has occurredThe court will, in the light of any ­findings of fact, apply the individual matters 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 any harm which the child has suffered as a consequence of that ­violence. It should also consider any harm which the child is at risk of ­suffering if an order for residence or contact is made. The court should only make an order for contact if it can be satisfied that the physical and ­emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact.

In every case where a finding of domestic violence is made the court will take into account the following:

• The effect of domestic violence on the child and on the parent with whom the child is living;
• The extent to which the parent seeking the residence or contact order is motivated by a desire to promote the best interests of the child, or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;
• The likely behaviour during the ­contact of the parent who is seeking contact and its effect on the child;
• The capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child; and
• The attitude of the parent seeking residence or contact for past violent conduct by that parent, and in ­particular whether that parent has had the capacity to change and to behave appropriately.

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, the court will consider what, if any, directions or conditions are required to enable the order to be ­carried into effect. In particular, the court will consider:

• Whether or not the contact should be supervised and, if so, where and by whom;
• Whether to impose any conditions to be complied with by the party in whose favour the order has been made;
• Whether such contact should be for a specified period;
• Whether or not there needs to be a review of the operation of the order. If so, the court will set a date for the review and give directions to ensure that all relevant information is available to the court on the review date.
• Where the court does not consider direct contact to be appropriate, it shall consider whether it is in the best interests of the child to make an order for indirect contact.

In its judgment or reasons, the court must always make clear how its ­findings on the issue of domestic ­violence have influenced its decision on the issue of residence or contact. In particular, where the court has found domestic violence proved but nonetheless makes an order, the court should always explain, whether by ­reference to the welfare checklist or otherwise, why it takes the view that an order it has made is in the best interests of the child.

In Re L (A Child) (Contact: Domestic Violence); Re V (A Child) (Contact: Domestic Violence); Re M (A Child) (Contact: Domestic Violence); Re H (Children) (Contact: Domestic Violence), four separate appeals heard together on 21 and 22 March 2000 and 19 June 2000, the Court of Appeal had to deal with issues relating to proven violence or threats of violence, where the fears of the resident parent were reasonable, and where serious issues arose as to the risks of ­emotional harm to the children.

In this case, dismissing the four appeals, it was held, among other things, that family courts needed to have a heightened awareness of the existence and consequences for ­children of the exposure to domestic violence between their parents or other partners. It did not consider, however, that as a matter of principle domestic violence could of itself ­constitute a bar to contact. It was ­simply a factor in the difficult and ­delicate balancing exercise of the court’s discretion. The court’s guidance in this case appears to have formed the basis of the practice direction.

In the recent case of Re N (Children) (Contact) [2008] EWCA Civ 207, the Appeal Court had to consider, among other things, whether or not the judge had erred in failing to adjourn the final hearing in a contact application where the mother had not been in ­attendance for that hearing. She had written to the court explaining her position and her objections to the making of a shared residence order but she had not made a formal ­application for an adjournment.

The judge heard evidence about some of the allegations of domestic violence and expressed a view that the main allegation that had led to the father being charged in the criminal courts with common assault had not been that serious and was not a part of a pattern of domestic violence. The father had, in fact, been acquitted in the criminal courts.

The mother submitted, in her appeal, that the judge had not made a proper attempt to investigate the domestic violence. The mother’s appeal, in this case, was dismissed as it was determined that the judge had not been so egregiously lacking in his sense of fairness in failing to adjourn the matter. Moreover, he had been fully entitled to view the common assault matter as isolated and not deeply affecting the children.

In Re K and S (Children) (Contact: Domestic Violence) [2005] EWCA Civ 1660, the court considered, on appeal, among other things, whether the judge had erred in failing to make any findings, one way or another, on the crucial issue of violence and harassment, involving not just the mother but also the children.

It is to be hoped and assumed that, following the implementation of the most recent practice direction, a greater degree of clarity will ensue in dealing with these very difficult and sensitive cases.