The BBC’s Victoria Derbyshire programme recently discussed the problems encountered within the Family Court system in Domestic Abuse cases. It is suggested that some perpetrators use the Family Court to continue coercive control of their former partners. The main headlines were that at least 4 children have been killed by a parent in the past 5 years after the Family Court granted contact, and that more than 120 MPs have written to the government requesting for an inquiry into abusive parents’ contact to their children.
It was a suggested that there was a culture that children should have contact with both parents at all costs within the Family Court system. This is with respect, not the court’s approach. There are many measures in place throughout the course of court proceedings to ensure that children are adequately safeguarded. At the First Hearing, the Judge determines whether the court needs further information about any allegations raised against either parent. If serious allegations are raised these are tested by the court at a Fact Finding Hearing. This is a standalone hearing which gives the parties the opportunity to give oral evidence and to provide supporting evidence (such as police disclosure). If the allegations raised are serious then the court will ensure that any interim contact is adequately supervised or supported.
The court is assisted during the proceedings by CAFCASS (Children and Family Court Advisory and Support Services). CAFCASS are specialist social workers whose aim is to be the voice of the children in the proceedings. CAFCASS make safeguarding enquiries with the Police and Social Services. They can also interview the children and parents to determine the family dynamic. If the court find it necessary they will instruct CAFCASS to prepare a report which provides recommendations to the court and also details their findings (this would include any serious allegations made by either parent and the child). The court may also consider it necessary for the perpetrator to attend a Domestic Violence Programme. This programme has to be completed before any final orders are made.
The court is required to make a judgment based on the evidence provided and the CAFCASS’ recommendations. The paramount consideration of the court is always the welfare of the children and the court will consider the children’s rights over the rights of the mother and father. This may be a difficult concept for the parties to grasp. The court refers to what is called the Welfare Checklist when making its decision.
This is as follows:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- his physical, emotional and educational needs;
- the likely effect on him of any change in his circumstances;
- his age, sex, background and any characteristics of his which the court considers relevant;
- any harm which he has suffered or is at risk of suffering;
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
- the range of powers available to the court under this Act in the proceedings in question.
The Ministry of Justice has released a quote confirming:
“Where there is evidence of domestic abuse, the courts are bound by law to consider potential harm to the child and this over-rides any presumption of parental involvement. But we will continue to explore how we can improve the way the justice system deals with this horrific crime.”
If you are experiencing disputes or difficulties relating to children matters please contact our GL Family Team.