One of the most difficult things about family law proceedings, whether it be private family law proceedings or care proceedings, is the fear in a parent who has been a victim of domestic abuse when they have just been told that they need to ensure they make the child available for contact with the very person who has been abusing them.
There was a presumption of parental involvement introduced into the Children Act 1989 and reinforced by the Children and Families Act 2014, that required courts to start from the position that a child’s welfare is generally best served by having both parents involved in their life, unless evidence suggested otherwise. In care proceedings, the local authority also has a duty to promote and facilitate contact between parents and their children. This presumption, however, fails to take into account the safety and welfare of the children, which is meant to be paramount in Family Court.
However, such presumption has now been repealed as the presumption often created a “pro-contact culture” that could place children at risk, particularly in cases involving domestic abuse or coercive control.
The Ministry of Justice commissioned a review of the literature of the risk to children and parents involved in private law children cases of domestic abuse and other serious offences. It also aimed to review the literature on how these risks are managed by Family Courts in England and Wales.
In 2020, the final report was published: Assessing Risk of Harm to Children and Parents in Private Law Children Cases. Although this report focuses on private law children cases, this report is also extremely relevant to care proceedings, where the same issues and risks are prevalent.
The final report of the expert panel provides an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences. It makes several recommendations for next steps to be taken forward by the family justice system, focusing on the Children Act 1989, which requires the welfare of the child to be prioritised.
The Harm report notes that children may be affected by domestic abuse both directly, and indirectly when abuse of the child’s parent impacts on that parent’s mental state and their ability to focus on and respond to the child’s needs. There were several accounts of abusers’ behaviour having serious and deliberate impacts on mothers’ parenting capacity, with consequent detrimental impacts on their children.
By the children being forced to have ongoing contact with the perpetrator of abuse against their abused parent prevents the children and that parent from beginning the recovery process. Instead, both child and parent are forced to remain in survival mode, reliving the abuse.
At 10.3.5 of the Harm panel report it describes the “Long-term harm to children”. The panel were told of children experiencing multiple physical injuries, being sexually abused and emotionally devastated; of children developing eating disorders, sleeping problems, night terrors, bedwetting, stomach pains, anxiety, insecurity, hypervigilance, anger, behavioural issues, low self-esteem, ADHD, OCD, PTSD, complex PTSD and depression. The panel also heard how children’s schooling was being affected, children experiencing learning difficulties and being excluded from school. There were many accounts of children self-harming, some of children attempting suicide and, in a few awful cases, of children committing suicide.
Not only has there been reports of emotional and physical damage to a child, but further reports notes that children’s relationships were also distorted by the ongoing abuse they experienced through contact. For example, they were alienated from their primary parent by the abusive parent, exposed to an inappropriate role model and grew up not understanding the difference between healthy and unhealthy relationships. Some children were described as mirroring their abusive parent’s behaviour, becoming controlling, abusive and continuing the cycle of violence, or they formed relationships as adults with partners who abuse them.
It is also noted that those who perpetrated domestic abuse against the primary parent were now abusing their new partners in the same way. This raises further concerns for the safety of children who have been exposed to domestic abuse against their own parent, but now, for those who are visiting the abusive parent, may have their experiences of domestic abuse compounded by witnessed it again.
This report does not conclude that those who have subjected the other parent to abuse cannot ever have contact with their children. It is important to note that the safety and benefit to the child having a relationship with the abusive parent depends upon how well the abusive parent has acknowledged, accepted and reformed their behaviour.
The evidence to the panel discussed within the Final Report suggests that in a large number of cases abusive parents are given contact without being asked to acknowledge, accept or reform their abusive behaviour, and instead it is children and non-abusive parents who are expected to accommodate themselves to contact and to bear the costs, regardless of the harm this may cause.
Ofsted joint targeted area inspection reports of children’s social care responded to domestic abuse further noted that the cumulative effects on children of experiencing domestic abuse are not sufficiently recognised; that there is too much reliance on vulnerable adult victims to keep children safe; and that there is insufficient focus on the perpetrator and the need to change their behaviour.
Of course, it is usually considered in the best interests of the child to maintain a relationship with both parents. However, the possible pain and distress of not having a relationship with the abusive parent is heavily outweighed by the serious harm and trauma that the child will continue to suffer.
It has been reported that where contact is suspended for a period of time, the children were remarkably better off, they were better behaved, calmer, and their traumatic symptoms ceased.
It is important that the outcome of this report is acknowledged and borne in mind throughout a child’s life and especially within Family Law proceedings, where the child may be forced to have contact with the abusive parent. Those who have a duty of care to the child need to remember the harm and trauma a child may have experienced when witnessing and experiencing domestic abuse and what further trauma the child may endure where they are forced to have contact with the abuser, whether it be supervised contact or otherwise. The wishes of the parent is not unimportant but is also not paramount. The child’s welfare is paramount.
With the repeal of the above-mentioned presumption, courts will no longer start from a default position favouring contact. Instead, the court will conduct an open-minded inquiry into what is in the child’s best interests, considering:
- Risk of harm, including physical, emotional, or non-physical abuse
- Quality of each parent’s engagement with the child
- Safety and welfare as the paramount concern
- Alternatives to contact, including supervised visits or no contact if necessary.
The presumption of parental involvement was designed to promote both parents’ participation in a child’s life, but concerns about child safety, particularly in cases of abuse, have led to its repeal. The change shifts family law toward a child-focused approach, prioritising the welfare and safety of the child over automatic parental contact, while still allowing courts to facilitate meaningful relationships where safe and appropriate.
