on Domestic Abuse and Harm
(Directions Paper 12J)
By Philip Kedge Director of The
McKenzie Friend UK Network
Philip Kedge is not
a lawyer or legally trained. He is a layperson
and his views and opinions are his own from his
experience as a McKenzie Friend and nothing
constitutes legal advice.
Practice Direction of 12J formalised the
procedures around CHILD ARRANGEMENTS &
CONTACT ORDERS: DOMESTIC ABUSE AND HARM' and in
particular the use of Fact Finding Hearings.
This highlights the depressing
frequency that allegations of prior domestic
abuse are raised in Child Arrangement hearings
which in reality, as reflected in over 8 years of
experience, very rarely have any significant
impact on Final Order arrangements.
Unless there are exceptional
reasons why a parent poses a 'significant risk of
harm' to a child, allegations may lead to initial
contact in a contact centre, courses, stepped
orders and safeguarding around handovers.
In these cases it is usually down
to Cafcass trying to manage the anxieties of a
parent rather than there being any real
identifiable risks of significant harm.
When people come to us with
allegations of domestic abuse, my initial
questions are usually 'Why do you feel that is
relvant?' and 'What are you specifically asking
the court to do?' Many people struggle at this
point because they are stuck, focusssed on their
experiences, without understanding the courts
approach to such issues and not rationally and
pragmatically thinking about the relevance of
alegations. There position is usually, I don't
want them to have access to the children'. With
over 8 years experience in Family Court, I can
count on one hand the number of times allegations
of domestic abuse has resulted in an order of no
direct contact with a child.
How Cafcass and the court
The court has only a limited range
of options when deciding on child arrangements.
The first consideration is with
who a child lives and what time they spend with
the other person.
The threshold for parenting is
The threshold for harm is
With respect to 'time spent' with
a parent, the options are :
a) No direct or indirect contact.
b) Only indirect contact such as
c) Contact Centre supported or
d) Support or supervision in the
e) Direct contact without any
support or supervision.
With allegations of harm, these
are genrally resolved with pragmatic safeguarding
considerations. People typically may start off at
(c) whilst waiting for a Section 7 / Imapct
Analysis Report and then progress to a final
order at (e).
The court on rare
occasions may hold a Fact Finding Hearing.
1) To listen to the allegations of
domestic abuse and on the balance of probability
determine whether the alleged events happened or
2) If events of domestic abuse or
harmare found, to determine if they have an
impact on child arrangements.
3) If not found, to ensure that
the case can move on without the allegations
being re-visited at a Final Hearing which
makes it a far smoother process.
Even if findings of fact of
domestic abuse are found at (1), they very rarely
pass the second hurdle at (2), resulting in long
term restrictions to contact.
Where there are allegations or
findings of domestic abuse or harm, then the
court can apply common sense safeguarding
measures, usually with the ultimate aim of being
able to progress contact.
In short, Cafcass often seeks to
apply safeguarding whilst trying to encourage
both parties to put the past behind them and to
engage in positive co-parenting moving forward in
the best interests of any children.
table outlines the frequent types of allegations
made and the typical
and recommendations by Cafcass and the court.
Management and Final Order
controlling and manipulative behaviour
and emotional abuse with only generic and
little impact if any. Few restrictions to
a Final Order. Both parties to attend a
Separated Parents Information Programme
(SPIP), Section 7 Report may be needed
due to acrimony.
little if any. Parties are now separated.
Both to attend the SPIP
abusive and controlling (not in presence
resident parent is particularly anxious,
it may slow down interim contact with a
recommendation for interim contact to
comence in a contact centre or other
supervised / supported contact in the
short term. Cafcass Section 7 report is
likely to be required due to acrimony
between the parties. Such allegations are
unlikely to trigger a Fact Finding.
Safeguarding may be paced around
childhandovers i.e at public places where
there is CCTV.
abusive (in presence of children)
progress interim contact in a contact
centre or other suprvised contact. Likely
to trigger Section 7 report by Cafcass
due to acrimony. Both parties to attend
SPIP. Additional parenting programmes
possible for awareness of behaviour
(anger management / DV awareness etc).
Could trigger a Fact Finding if denied
and serious in nature, likely to result
in handovers being in public and a more
stepped / progressive order to
implementing contact arrangments.
assaults, pushing shoving, not in
presence of children.
progress contact initially through a
contact centre or a delay in permitting
direct contact pending aCafcass Section 7
Report. Both parties to attend SPIP.
Additional parenting programmes for
awareness or behaviour (anger management
/ Domestic Abuse perpetrators course etc)
is likely. Could trigger a Fact Finding
if denied dependent on the alleged
frequency and nature of abuse.
Safeguarding achild round future
handovers and an increased likelihood of
a stepped / progressive order to support
and develop appropriate contact
assaults, pushing shoving, in presence of
progress contact initially through a
contact centre or no contact pending
Cafcass Section 7 Report. Both parties to
attend SPIP. Additional parenting
programmes for awareness or behaviour
(anger management / Domestic Abuse
perpetrators course etc) is likely. Could
trigger a Fact Finding if denied and
dependent on frequency and extent of
abuse, could result in handovers being in
public and more likelihood of a stepped /
progressive order to assist contact and
to monitor parenting.
of non - consensual sex i.e. sex
when I was half asleep and didn't want
to. Was pressurised on a couple of
occasions. No children present.
7 Report is likely due to acrimony
between the parties and to explore the
allegations in more detail. However, even
if found as fact, may not have a
signficant impact on Final Child
Arrangements as both parties separated.
Depending on the anxieties of the
resident parent could lead to initial
contact through a contact centre. Both
parties to do the SPIP, perpetrator to
attend Domestic Abuse Perpetrators
Course, safeguarding around handovers and
the likelihood of a stepped / progressive
order to assist contact and to monitor
More Seriouse Allegations
physical, verbal, emotional and sexual
abuse, perhaps with Police, Social
Services involvement, criminal
likely to lead to a Fact Finding if
denied by the alleged perpetrator. On any
findings of fact, the risk of harm to any
child or parent will be carefully
scrutinised and considered by the court
and Cafcass. The full range of restricted
contact could be considered including
Final Orders of no contact.
Other - Threats / Harassment /
Intimidation / Significant Acrimony
harassment and intimidation.
unlikely to lead to a Fact Finding, both
parties to attend SPIP, other parenting
programmes, likely to be a Cafcass
Section 7 report due to acrimony, could
result in Contact Centre in early stages.
If a Non Molestation Order is in place
this will need to be managed, often with
a third party for pick ups and drop offs,
even school handovers.
Drink / Drugs
drinking, recreational drug use.
may require drug and / or alcohol tests
by means of testing hair, blood or liver
function tests. Any alcohol / drug abuse
would usually need to 'chronic and
excessive' in nature to reach the
threshold of potential 'significant harm'
with safeguarding interventions. In the
majority of cases, these matters can be
dealt with by the non resident party
giving undertakings that they will not
consume alcohol or illegal drugs 24 hrs
before contact or during contact.
Undertakings and Non-Molestation
allegations of low level harm, domestic
abuse, threats or intimidation have been
made, 'formal undertakings' can be
agreed, often on a no fault or admission
basis, where the party undertakes not to
harm, pester, harass, intimidate or
denigrate the other person. Breaching
such an undertaking would be a contempt
In more serious cases, the
victim can apply for a Non-Molestation
Order which carries a power of arrest if