In cases where parents cannot agree on living or contact arrangements for their children, it is often for the courts to decide what will be in the best interests of the children. This is a subject the Rt Hon Sir Andrew McFarlane, President of the Family Division and Chair of the Family Justice Council discusses in this BBC Interview.
Where accusations of domestic abuse or domestic violence are present, the task becomes even more complex with the Judge tasked with weighing up the risk and impact on the child against that of not seeing a particular parent.
In cases where accusations exist but have yet to be proven, further investigation will need to be carried out to ascertain the facts behind such claims. This can make the process of then determining if a child should see that parent, and under what circumstances or conditions, much longer as evidence will need to be heard before a judgment can be given by the court.
Weighing up the risks
Once an allegation of abuse or domestic violence has been put forward as an argument for having stopped or limited contact, the courts are responsible for weighing up any risks to the child. Evidence will need to be presented and considered by the court before it can be decided what the best course of action is for the child or children involved.
The Judge will take into account the past relationship history and any incidents of domestic violence and corresponding complaints of abuse or police reports provided for the court file. They will also consider what might happen in the future and determine if there is risk of further incidents.
Parents are not stopped (by the court) from seeing a child based on accusations alone, but even if the abuse wasn’t physical or directly aimed at the child or children, allegations of abuse must be investigated to determine what arrangements are in the best interests of the child/children.
Alerting the court to abuse
If you are due to go to family court to decide who a child should live with or agree contact arrangements, it is essential that you make the court aware of any history of abuse in the relationship.
This can be done by filling out court form C1A ‘Allegations of harm and domestic violence’ and sending it to the court along with your own application or as your response to an application from the other parent.
Form C1A gives you the opportunity to outline previous abuse as well as detailing any extra support or protection you believe necessary for the wellbeing of your child and yourself. Before the first court hearing, Cafcass will carry out safeguarding checks to establish any potential harm. Their findings will be relayed back to the court.
Your solicitor will be able to help you fill this form in properly and ensure that it is submitted in a timely manner as making allegations further on during the process can delay matters significantly.
Where charges or cautions of abuse have already been recorded or have been accepted by the other party in court, the Judge will not need to hold a separate hearing to see if there is a basis to the allegations.
In situations where no conviction or admissions of abuse are present, a separate fact-finding hearing may have to take place to hear oral evidence and review paper evidence. This part of the process may involve third party agencies such as social services who will be able to tell the Judge anything that they have seen or heard during their dealings with the family.
Although it is not the place of these third parties to make a decision on reports of abuse, their evidence can prove invaluable in helping the Judge reach a decision once all relevant information has been collected.
In many cases, witness statements, GP records and photos of previous injuries are also used alongside any police reports.
The final ruling
Once any fact-finding hearings have taken place and the Judge has given their decision, future decisions for the children in the family court will be based on those findings.
Many parents find the approach of the courts upsetting, but it is vital the legal process is carried out in a completely impartial manner in order to reach a decision as to whether parental contact should be permitted or prohibited with a potentially abusive parent.