Norman Hartnell responds to news of a call for inquiry into access to children for abusive parents.
"The focus on the protection of victims of domestic violence is very welcome.
However, it will come as no surprise to hear that there are already detailed procedures in place to deal with such matters. These are the Family Procedure Rules 2010 PD 12 J that were recently revised to give greater protection to victims of domestic violence.
As with the law’s approach to all contested matters, the first step is to establish what has happened (the facts) before a decision is made about what should happen in the future.
Domestic violence is a scourge on our society and harms not only individual victims (male and female) but also their children. It is often difficult to prove unless there is corroborative evidence such as reports to the police or GP. Often the victim is controlled by fear of violence or financial dependence.
It is, however, possible for false allegations to be made. This is why the law has to be careful to balance the potential harm that might be caused to victims of domestic violence and their children where violence has occurred with the possibility of the children losing a relationship with a parent against whom a false allegation is made.
An unjustified withholding of contact to an innocent parent is also extremely harmful to a child.
Strong emotions are engendered in each case. We often see examples of both, it is not a case of there being only one or the other. What is reported in the press tends to be either one swing of the pendulum or the other.
The law provides immediate protection for domestic violence victims under the Family Law Act, where injunctions can be obtained and legal aid is available, subject to a means assessment. The court can deal with child contact issues at the same time. The court will take account of what risks are alleged and, for example, provide for a risk assessment and for contact to take place either indirectly or in a supervised setting whilst such risk assessment is undertaken.
The questions are:
What is the risk alleged to both the child and the other parent?
Is it based on established fact, i.e. has it actually happened?
How can any risk be managed (if at all) so that contact between the child and the other parent is both safe and beneficial to the child?
One of the main problems at present is that there is significant delay built into the system which creates its own problems. It takes eight weeks to get a preliminary hearing as the court insists on getting police and social services checks through Cafcass (Children and Family Court Advisory and Support Service) before it makes any orders. Even then the court usually won’t make any short term orders. Instead, it will make procedural directions for the filing of statements and any hearing to determine what has happened often takes place many months later.
We have long been arguing that this is far too long and leads to frustration. If a child hasn’t seen their other parent for five or six months due to these delays, they may well express a view that they now don’t want to see them at all. This means that the justification for no contact changes from fear of domestic violence to acquiescing to the child’s wishes.
I would urge the government to adopt the suggestion of an early first ‘triage’ type hearing to take place within seven days of any court application, to expedite the information being made available by social services and the police direct to the court. The court should then make urgent decisions about making safe arrangements for contact if appropriate and determining what has or has not happened."
If you need help with any of the issues raised please contact The Family Law Company. Your first appointment is always free.