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Article 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.

The 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 potentially thinks.

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 'good enough'

The threshold for harm is 'significant harm'

With respect to 'time spent' with a parent, the options are :

a) No direct or indirect contact.

b) Only indirect contact such as letters

c) Contact Centre supported or supervised

d) Support or supervision in the community

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 not.

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.

The below table outlines the frequent types of allegations made and the typical

responses and recommendations by Cafcass and the court.

Allegation Possible Management and Final Order
   
Claims of controlling and manipulative behaviour and emotional abuse with only generic and unspecific evidence. Very 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.
   
Financially controlling Very little if any. Parties are now separated. Both to attend the SPIP
   
Verbally abusive and controlling (not in presence of children) If the 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.
   
Verbally abusive (in presence of children) Likely to 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.
   
Physical assaults, pushing shoving, not in presence of children. Likely to 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 arrangements.
   
Physical assaults, pushing shoving, in presence of children. Likely to 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.
   
Allegations 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. A Section 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 parenting.

More Seriouse Allegations

Significant, physical, verbal, emotional and sexual abuse, perhaps with Police, Social Services involvement, criminal convictions. This is 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

Threats, harassment and intimidation. This is 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

Excessive drinking, recreational drug use. The court 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 Orders

Useful tools. Where 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 of court.

In more serious cases, the victim can apply for a Non-Molestation Order which carries a power of arrest if breached.