Balancing Act: Navigating a child’s right to be able to have access to their father amid his history of domestic violence and the UK family courts’ obligation to safeguard the child’s welfare.
This topic raises several complex and sensitive issues surrounding a child’s right to maintain a relationship with their father, against the potential risk posed by the history of domestic violence. The assertion that the UK family courts should deny a child their right to see their father when he has a history of domestic violence, underpins the dilemma between safeguarding the safety of the child, and respecting a child’s right to private and family life under Article 8 of the Human Rights Act 1998 (HRA 1998).
This essay will be critically evaluating the legal issues, that shape the parameters of such decisions within the UK legal system through examining relevant statutes and case law. By exploring the balance between protecting children and upholding their rights, this essay aims to explore the current literature surrounding this debate and conclude the appropriateness of denying access based on a history of domestic violence.
The UK family courts approach when having to assign child custody between parents does not fall into the rights of the parent but that of the child’s. In addition to this, the precedent case of Re L, laid down the guidelines for the UK family courts and professionals in contact cases to use, where allegations of domestic violence are found to be true. These are found under Practice Direction 12J as the general principles of child custody arrangements. It states that, ‘Domestic abuse is harmful to children, and puts children at risk of harm… by witnessing one of their parents being violent or abusive to the other parent… children may suffer direct physical, psychological and/or emotional harm from living with… domestic abuse [as it] impairs the parenting capacity of either or both of their parents’.
This principle clearly shows that the UK family courts must prioritise the safety of the child over granting custody to a domestically violent father. This is not only because that the safety of the child has to be prioritised by family courts but also because the ‘parenting capacity of either or both of [the] parents’ will have to be assumed by the family courts as ‘impaired. This assumption of imparity indicates that the UK family courts should deny a child’s right to see their father, when he has a history of domestic violence as, the family courts will also be endangering the child by allowing them to be released into the custody of parents who cannot fulfil the child’s needs.
Moreover, it is Sections 1 and 8 of the Childrens Act 1989 (CA 1989) that governs the welfare of children. Section 1 directs what circumstances the court should consider in order to grant an application for a child arrangement order or any other orders with respect to children. Section 8 of the CA 1989 directs what type of child arrangement orders and any other orders with respect to children should be issued. Under Section 8(1)(a)-(b) a child arrangements order is defined as ‘an order regulating arrangements relating to any of the following with whom a child is to live, spend time or otherwise have contact with. These two Sections are vital guidelines for the UK family courts to use when having to decide the custody of a child.
Within S1 of the CA 1989 there are three main general principles the courts use when navigating their decision to grant custody, these are: the welfare paramountcy principle, the no-delay principle and finally the non-intervention principle. The welfare paramountcy principle is when the court should consider the welfare of the child as the paramount factor in relation to his/hers upbringing. Under S1(3) of the CA 1989 the welfare checklist is provided for the courts use as the sole statutory mandate to follow.
Furthermore, in the case of Re M, Wilson J considered whether the fundamental emotional need of every child needing a relationship with both of their parents was outweighed by the depth of harm. In this case, it was found that if the risk of harm to the child was too high no contact should be allowed and thus the father’s appeal to have contact with his child was dismissed.
Moreover, it is just as important that the courts do not delay in their decision, as any unnecessary delay may harm the welfare of the child. This is known as the no-delay principle. This principle’s main aim is to ensure that the bond formed between a child and its parents is not disrupted. As a study conducted by child psychologists, found that significant harm can occur to a child’s psyche if they are removed from their parents.
This is seen in the case of Elsholz v Germany where it was found that if the courts were to restrict the child’s right to see his father, this would infringe upon his Article 8 HRA 1998 right to private and family life and that it would be in the best interest of the child if contact was allowed. This case juxtaposes the aim of the welfare principle as contact between the parent and child is prioritised and demonstrates that UK courts should not restrict a child’s right to see their father.
Conversely, the precedent case of Sahin v Germany held that domestic courts have a positive responsibility and paramount concern to always prioritise the welfare and safety of the child, and this principle should aways outweigh any other interest. Although, these decision by the European Court of Human Rights (ECtHR), do not bind UK family courts and they are not obligated to follow them.
However, the welfare paramountcy principle under S1 of the CA 1989 lays out the same concept. In addition to this, a study conducted by another child psychologist found that the original attachment theory created by Goldstein et al was untrue. Eekelaar’s findings were that it was not the amount of visits between the child and parent that mattered but the quality of the visit that impacted the child more.
These studies and rulings from the ECtHR, show that although the bond between a child and their parent is significant, this must not outweigh the welfare of the child. Therefore, the UK courts should restrict a child’s right to visit their domestically abusive father.
Finally, the last principle the UK family courts may consider when deciding whether or not to grant a child’s right to have contact with their domestically violent father is the non-intervention principle. This is when the court decides that not intervening is the best interest of the child. This principle is used when the parents tell the family courts that they have decided upon a custody agreement cordially between them and there is no need for the courts to decide their child’s custody arrangement.
Although, the courts will not take this avenue if domestic violence issues have been raised in regard to the children’s parents. This is because, the courts decided in the precedent case of Re L that more weight has to be distributed to the safety and welfare of the child rather than in favour of parental involvement. Therefore, this principle demonstrates that although UK family courts are given the option to explore parental involvement and consider a child’s Article 8 HRA 1998 right to private and family life, they must restrict a child’s right to have contact with their father if he is found to be domestically violent in order to protect the welfare of the child.
In four seminal cases heard in England and Wales, the Court of Appeal (CoA) set out a two-stage test the courts should apply when a request for contact is made but there is an allegation of domestic violence. The four cases all concerned fathers who had domestically abused the mothers and children concerned in the cases but were all dismissed. This was because, the CoA stressed that the abuse that the fathers had committed should not restrict them from having custody of their children but it should be an important factor on the success of their applications.
The test is that at the initial stage if an allegation of domestic violence is issued, then the courts must investigate, in order to determine whether it is true. The initial investigations should consist in finding out the facts and bringing them to the attention of the court. Secondly, if the alleged abuse is proved and the fear that the child will be further harmed if custody is granted, the court has to weigh up the risks involved and its impact on the child against any potential benefits of allowing contact. This two-stage test clearly demonstrates that the welfare and safety of the child has to be the utmost concern of UK family courts when deciding whether a child’s custody right should be revoked. This is because, the courts go to the great extent of conducting an investigation into the domestic abuse allegations in order to be to fully confirm the risk of harm toward the child and evaluate thoroughly on how to manage these risks when faced with whether or not custody should be restricted.
Furthermore, this two-step test is seen to be adopted in the case of AB v BB where the father was found guilty of domestic violence toward the mother and was sentenced to prison for his assault, but still made an application for direct contact of his children. However, when the court applied this test they concluded that the application had to be denied as direct contact would not benefit the children even if he was supervised.
On the other hand, this approach of the test can be contrasted with the case of Re A where the father was found to have not only hit the mother of the child but to have also sexually abused their daughter. The CoA dismissed the mother’s appeal to revoke the daughters direct contact order with the father. This is because, the Judge had chosen to separate the two types of abuse that had occurred. He held that the physical abuse toward the mother did not pose a large risk toward the daughter even though the sexual abuse had been committed by him.
This case vividly demonstrates no adherence to the welfare principle and the two- stage test as the safety and welfare of the child can be seen as not being a priority. Instead, granting contact was the determining factor. In addition to this, another problem seems to arise, this being an inconsistent set of judgements in how UK family courts should navigate the two-step test.
Furthermore, the current case of Re H-N and Others did not establish any new legal precedent but did give the CoA an opportunity to demonstrate to UK family courts on how cases concerning allegations of domestic abuse should be handled. The case concerned itself with four appeals of private law children cases and where one parent alleged domestic abuse against the other. The judgment gave guidance on four key issues, the first being how important the need for a fact-finding hearing was in cases such as these. The second and third being that a Scott Schedule must be produced and if the fact-finding hearing is deemed necessary a plan must be introduced into how these allegations will be dealt with. A Scott Schedule is used in in family court proceeding where allegations of domestic abuse have arisen and need to be set out clearly. Finally, the fourth point of guidance was that Hickinbottom LJ highlighted that, ‘…importation of concepts from the Criminal Courts to the Family Court’ is ’inappropriate, unnecessary and unwise, and should be avoided….’
This leads on to a literature review on domestic abuse and private law children cases, which was conducted by the UK Ministry of Justice, specifically Dr Adrienne Barnett of Brunel University London in 2020. Its main aim was to analyse the risks that children and parents are subject to in private law children cases of domestic abuse, whilst also aiming to review the literature on how these risks are managed by the UK family courts. The review found that the UK family courts, ‘strongly promote ongoing relationships between children and both of their parents following separation, even in circumstances of domestic abuse.
These findings clearly goes against the courts focus of protecting the welfare of children and it was also found that a consistent theme emerged from the research literature. This was that a ‘selective approach’ was taken to children’s views in court proceedings. Children’s views were found to be taken seriously and were even determinative if they wanted contact with their fathers. However, when they were opposed to contact their views were more likely to be disregarded and discounted and treated as ‘problematic’.
This literature review shows that UK family courts should restrict a child’s right to see their father if the father is found to be domestically violent. However, the review’s findings also demonstrates that this factor is clearly not translated into practice. This can be seen through the UK family courts continuing to prioritise contact and disregarding the wishes of the children who are opposed to contact, with their domestically violent parent. This literature review highlights that there is not enough safeguarding considerations in place due to the courts lack of understanding of domestic violence and its mental/psychological effects upon a child.
The review also found that qualitative studies were undertaken both before and after the 2014 revisions to Practice Direction 12J, to determine what positive/negative changes this provision had caused by being brought into domestic law. It was found that judges had gained a better understanding of the harmful consequences that domestic abuse can have on its victims, but that this increase did not necessarily mean it showed in their rulings. This was because, only a few trial judges took the coercive and controlling aspects of domestically violent perpetrators’ behaviours into consideration.
The review also found that it was physical violence that judges considered relevant when having to decide whether a child’s right to have contact with their domestically violent father should be granted. The coercive and controlling behaviours of the fathers were not important factors that needed to be considered. Additionally, step one of the two-stage test, which is conducting an investigation into the allegations of domestic abuse was found by the literature review, to be held in less than ten percent of cases involving allegations of domestic abuse. The study into this Practice Direction indicated to the review that the welfare factors that are explicitly laid out under the provision were being inconsistently applied and contact was being prioritised over safety of the child.
In conclusion, UK family courts are not in violation of domestic law when they choose to deny a child’s right to see their father, when the father is found to be domestically violent. This is because, all of the relevant statute and common law such as the S1-8 of the CA 1989, the precedent case of Re L and Practice Direction 12J all demonstrate that the safety and welfare of the child has to be the determining and most important factor. This can also be seen in the two-stage test that shows that the courts must not deal with custody arrangements where allegations of domestic abuse have been made lightly.
However, through the research this concern did not seem to be translated into the rulings of cases where domestic violence was seen to be present. The 2020 literature review shed light on the issue that the UK family courts were not taking the safety of the children of domestically violent fathers or their wishes to not have contact with their fathers into consideration. This raises a new concern, that although UK courts may not be in violation when they deny a child access to their domestically violent father, they may be in violation of not enforcing it more regularly.
This inconsistency of judgments clearly demonstrates that the UK family courts do not have an approach suitable to use when deciding whether an abusive father should be able to have contact with their children. The reasons for this is the courts distorted perception to domestic violence and believing that the priority should be contact with the child regardless of their safety.
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Bibliography:
Primary Sources-
Acts of Parliament:
Childrens Act 1989 Human Rights Act 1998
Practice Direction 12J - - Child Arrangements & Contact Orders: Domestic Abuse and Harm
Cases:
AB v BB [2013] All ER (D) (Fam)
Elsholz v Germany [2000] 2 FLR 486; 25735/94 ECtHR
Re A (A Child) (Supervised Contact Order: assessment of impact of domestic violence) [2015] EWCA Civ 486
Re L (Contact: Domestic Violence) [2000] 2 FCR 404
Re M (Contact: Welfare Test) [1995] 1 FLR 274 Re V (A Child) [2001] Fam 260
Re H (Children) [2001] Fam 260
Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448
Sahin v Germany [2002] 3 FCR 321; [2001] ECHR 30943/96 ECHR
Secondary Sources-
S. Macdonald G, ‘Domestic Violence and Private Family Court Proceedings: Promoting Child Welfare or Promoting Contact?’, (2015), 22, Sage Journals
