The crucial rules of contact

16 Nov 2016

by Amy Starnes, Mills & Reeve

Practice Direction 12J governs the interaction of domestic violence issues and child arrangement orders, but evidence suggests its clear guidelines are not always being followed

Where courts are considering making a child arrangements order (CAO) and domestic violence is an issue, Practice Direction 12 (Child arrangements and contact orders: domestic violence and harm) sets out the process and rules to be followed.

Family courts often have to contend with complicated facts and, at times, seemingly competing principles in circumstances where there are issues of domestic violence in the context of child arrangements orders. Recent case law suggests that the Practice Direction might not always be followed by the judiciary and for some, this failure to implement the Practice Direction has potentially disastrous effects.

Women’s Aid published a report at the start of the year entitled “Nineteen Child Homicides”, which tells the stories of 19 children who were killed by a parent who was also a perpetrator of domestic abuse in circumstances relating to formal and informal child contact arrangements. Women’s Aid and the All-Party Parliamentary Group on Domestic Violence have recommended that there is an independent, national oversight into the implementation of the Practice Direction.

Whilst the Women’s Aid report has not gone uncriticised, together with recent case law it does, at least, provide a good reminder to practitioners involved in cases concerning domestic violence and CAOs to ensure that the process, rules and guidelines of the Practice Direction are brought to the court’s attention.

Definition

In 2014 the Practice Direction was revised to include a wider definition of domestic violence. Domestic violence now includes controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners. This includes psychological, physical, sexual, financial or emotional abuse. It includes both a one-off incident and a pattern of incidents.

General principles

In considering arrangements for children where domestic violence is involved, a child’s welfare is the court’s paramount concern. In addition, courts have to balance two – at times seemingly competing – principles. Namely:

  • The presumption of parental involvement, which was introduced in October 2014. This presumption means that unless the contrary is shown, the court will presume that some kind of involvement from both parents will further a child’s welfare (s11 Children Act 1989).
  • The acceptance that being subjected to domestic violence or witnessing domestic violence is harmful to children. This includes the harm that a child may suffer indirectly where domestic violence impairs the parenting capacity of either or both of their parents.

The court’s consideration

Where domestic violence is raised as an issue, the Family Court must do the following:

  • Identify at the earliest opportunity the factual and welfare issues involved.
  • Consider the nature of any allegation, admission or evidence of domestic violence and the extent to which it is relevant when deciding whether to make a CAO (and if so in what terms).
  • Give directions to enable contested relevant factual and welfare issues to be tried as early as possible and fairly (eg by way of a fact-finding hearing).
  • Where domestic violence is admitted or proven, ensure that any CAO in place protects the safety of the child and any parent with whom the child is living, and does not expose them to risk of further harm. The court must be satisfied that any contact ordered with a parent who has perpetrated domestic violence is safe and in the best interests of the child (this may include direction of expert risk assessment).
  • Ensure that any interim CAO is only made where it is in the interests of the child, taking into account the welfare checklist. Particular consideration must be given to securing the safety of the child and the parent who has made the allegation before, during and after any contact, and the likely effect on the child and the parent who has made the allegation of any contact and any risk of harm (again, this may include direction of expert risk assessment).

Whether to make a CAO where domestic violence has occurred

The court should ensure that any order for contact will be safe and in the best interests of the child.

Under paragraph 36 of the Practice Direction, the court should weigh the individual factors in the welfare checklist, with particular consideration to any harm suffered by the child and the parent with whom the child is living, and any risk of harm if a CAO is made. An order should only be made if the court can be satisfied that the physical and emotional safety of the child and the relevant parent can, as far as possible, be secured and that the relevant parent will not be subjected to further controlling or coercive behaviour by the other parent.

The court should also consider the conduct of both parents towards each other and towards the child and, in particular, the following:

  • the effect of the domestic violence on the child and the arrangement for where the child is living;
  • the effect of the domestic violence on the child’s relationship with the parents;
  • whether the parent against whom findings have been made is motivated by a desire to promote the best interests of the child or is using the process to continue a campaign of violence, abuse, intimidation, harassment or controlling or coercive behaviour against the other parent;
  • the likely behaviour during contact of the parent against whom findings have been made and its effect on the child; and
  • the capacity of the parents to appreciate the effect of past violence and the potential for future violence.

If contact is to proceed then the court should consider what, if any, directions or conditions are required and, in particular, the following:

  • whether contact should be supervised and, if so, where and by whom;
  • whether to impose any conditions and, if so, the nature of those conditions;
  • whether contact should be for a specific period or should contain provisions that are to have effect for a specified period; and
  • whether it will be necessary to review the operation of the order.

If direct contact is not considered appropriate then the court should consider whether it is safe and beneficial for the child for there to be indirect contact.

Case law

Re W (Children: Domestic violence) [2012] EWCA Civ 1619 confirms that the PD12J represents good practice and should be followed in every case involving domestic violence (this case was prior to the Practice Direction being revised as part of the Child Arrangements Programme 2014). More recently, the Practice Direction was referred to and endorsed in Re V (A child) [2015] EWCA Civ 274 and in Re A (A child – Wardship – Fact finding – Domestic violence) [2015] EWHC 1598 (Fam).

However, there is recent case law that suggests that the Practice Direction is not always followed by the judiciary.

In Re P (Children) [2015] EWCA Civ 466 a mother appealed against a child arrangements order on the basis that the lower court had failed to give proper consideration to the Practice Direction and the risk of domestic violence to the children. The appeal was allowed. The Court of Appeal concluded that the lower court had failed to take into consideration as an important factor the history of domestic violence and had failed to carry out an assessment of the risk, which particularly impacted on the supervision of contact. The Court of Appeal endorsed paragraph 36 of the Practice Direction (as set out above).

In Re K (Children) [2016] EWCA Civ 99 the father made an appeal against a CAO that granted him indirect contact with his two children. The Court of Appeal allowed the appeal and concluded that the lower court had failed to properly consider the Practice Direction.

In coming to its decision and considering contact in light of domestic violence, the Court of Appeal reiterated the President’s decision in Qv Q [2015] EWCA Civ 991 as follows:

  • Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
  • Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.
  • There is a positive obligation on the state, and therefore on the court, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The recorder has a positive duty to attempt to promote contact. The court must grapple with all the available alternatives before abandoning hope of achieving some contact. It must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
  • The court should take both a medium-term and long- term view and not accord excessive weight to what appear likely to be short-term or transient problems.
  • The key question, which requires “stricter scrutiny”, is whether the court has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
  • All that said, at the end of the day the welfare of the child is paramount; “the child’s interest must have precedence over any other consideration”.

Women’s Aid and APPG

As noted at the start of this article, national domestic abuse charity Women’s Aid have called for urgent independent, national oversight into the implementation of the Practice Direction. For Women’s Aid, the reasons for the Practice Direction not being implemented seem to be wrapped up in – what it considers to be – a deeply embedded culture of “contact at all costs”. The charity suggests that contact arranged through the courts and domestic violence suffered by one parent are often seen as separate issues rather than intrinsically linked. Women’s Aid calls for a challenge to this culture and recommends a focus on putting children first in the family courts, as stated in the legal framework and guidance.

Following Women’s Aid’s report, the All-Party Parliamentary Group (APPG) on Domestic Violence held a Parliamentary hearing on domestic abuse, child contact and family courts. At the hearing, the APPG highlighted a clear consensus as to the patchy implementation of the Practice Direction.

The majority of the panellists at the hearing were in agreement about a lack of, or ineffective, implementation of the Practice Direction. For the APPG this inconsistent implementation and, in its view, the embedded culture of “contact with the child, no matter what” has been shown to lead to unsafe child contact. The APPG supported the recommendation made by Women’s Aid for an independent, national oversight group overseeing and advising upon the implementation of the Practice Direction.

As noted, there have been some criticisms of the Women’s Aid report, but leaving these to one side, what it does do is add to discussions about implementation of the Practice Direction. The report, the APPG and recent case law all suggest that the Practice Direction is not always implemented and practitioners should ensure that in relevant cases it is always brought to the forefront.

In cases involving issues of domestic violence, practitioners may wish to consider as early as possible the following:

  • whether a fact-finding hearing is necessary;
  • whether expert evidence is necessary and, if so, ensuring that this is applied for correctly;
  • the range of programmes on offer to parents in the circumstances; and
  • keeping abreast of and considering the use of local initiatives and arrangements at local contact centres.