Children are often the incidental victims of abusive adult relationships, and domestic violence can impact on how the courts make child arrangement orders.
Being exposed to violent behaviour from a young age can have serious developmental and behavioural effects on children, and the courts strive to make orders that strike a balance between maintaining contact and/or a relationship with both parents, with meeting the welfare needs of the child.
The government’s definition of domestic violence is acts occurring between intimate partners or family members over the age of 16, inclusive of abuse whether psychological, physical, sexual, financial or emotional, and any form of controlling, coercive or threatening behaviour.
The potential harm this can cause in relation to children is then outlined in s.31(9) of the Children Act 1989 (CA 1989) as any ill-treatment or impairment of health or development including any impairment suffered from seeing or hearing the ill-treatment of another. Children can suffer psychological, physical or emotional harm from living with violence or abuse, especially if the violence serves to impair the care provided by their parents.
When the Court are considering arrangement orders for children, the child’s welfare is paramount (s.1(1) CA 1989), and it is presumed that parental involvement in the child’s upbringing supports the child’s welfare and emotional well-being. However, this is not the case if the courts consider that the child or the other parent could be at risk of harm.
What is no contact child arrangements?
The case of Re L and others (Contact: Domestic Violence) Fam. 260 discussed the need for the Court to consider domestic violence and its harmful impact on children. An experts’ report by child psychologists was referenced, which outlined circumstances in which it would be appropriate to make an order for no contact, including where the offending parent fails to take responsibility for the violence, and expresses no desire to make amends.
Therefore, when the courts are considering whether or not to grant contact between parents and children, they have to consider the child’s welfare and whether the risks of granting contact outweigh the benefits of having a relationship with one or both parents. In this way, in P v D and others EWHC 2355 (Fam.) where the father had been imprisoned for violence against the child’s mother and siblings, contact posed a serious risk of emotional and psychological harm to both the mother and child, so contact was denied.
Potential impact of no contact
The experts’ report considered in Re L and others also looked at the negative impact of no contact orders being granted in more general cases. The report outlines issues including the importance for children to have a relationship with both parents, and the opportunity to know their extended family, the ability of the child to form and understand their personal identity, and the opportunity to rebuild relationships with parents and other family members.
The decision to deny a parent contact with their child is not something the courts will take lightly, as they actively try to maintain parental relationships with children if at all possible. Therefore in children proceedings the courts are looking to establish the accuracy of the facts and welfare issues, and the truth of the domestic violence allegations at the earliest opportunity. The evidence presented is reviewed, and separate hearings for specific issues are often directed so that a solution can be reached as soon as possible. When the courts are in a position to make a child arrangements order in cases of proven domestic violence, the order will reflect the necessary level of protection for the child and the other parent.
When domestic violence is raised as an issue in children proceedings the court will consider whether an experts’ report is required to advise as to the relevant environmental factors, and to assist in identifying the most appropriate solution for the care and welfare of the child.
Where domestic violence is proved but the court considers that the risk of harm to the child does not outweigh the need for contact and a relationship with both parents, the courts will consider to what degree contact should be permitted. In this way, the court will consider whether the order should be for supervised or unsupervised contact, whether the amount of contact should be limited to weekly, monthly, or annual visits, and whether it needs to be direct or indirect. In some cases where direct contact is inappropriate the courts will consider to what extent indirect contact should be implemented. If no solution can be reached that is in the child’s best interest, the court will make an order for no contact.
The same process can be followed on an interim basis to consider contact arrangements for the child and both parents while proceedings are taking place, or while allegations of harm are being assessed.
The courts strive to reach direct contact between children and both parents even in cases where domestic abuse has occurred against one of the parents, and all options will be considered before an order for indirect or no contact is granted. If sufficient protection of the child and the other parent can be put in place for visitation, such as supervised contact, then the courts will look to maintain the child’s relationship with both parents.
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