Deciding on the living arrangements for any child following a separation can be an extremely stressful time for children and parents.
It’s a time of uncertainty, with parents keen to ensure they achieve a positive outcome for them and their child.
The stress of the situation can be amplified when there is or has been domestic abuse within the relationship.
The welfare of a child is always the biggest priority of the Court. In assessing what is best for the child, the Judge will have to balance the welfare of the child with any risks posed by the abusive parent.
During the child arrangements hearings, safeguarding orders may have to be put in place to protect the parent and child from experiencing further harm. These orders could include, for example, restricting contact with the child, or only having contact when there is a supervisor present.
What is domestic abuse in the UK?
According to UK law, domestic abuse is “Any incident or pattern of incidents of controlling, threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between those aged 16 or over who are, or have been intimate partners or family members, regardless of gender or sexuality.”
There are also other factors that must be considered when the courts try to decide whether domestic abuse is present in a case.
It’s important to remember that domestic abuse is not just violence, there are other behaviours that are also can be classed as abusive, for example:
- Controlling behaviour: Controlling behaviour is a range of acts that one partner uses on another to make them feel subordinate to or dependent on them. These acts could include isolating them from their support network, making them feel inferior, depriving them of independence, and stopping them from doing certain everyday tasks.
- Coercive behaviour: This is any type of behaviour that can make someone feel intimidated or fearful. They can be made to feel this through aggression, abusive language, humiliation, threats, or physical assaults.
How domestic abuse could affect where a child would live
If issues of domestic abuse are raised, it can have a significant impact on the case.
The first thing a court will decide is whether the abuser is allowed to see their child during the court proceedings. In cases where the court thinks that contact could cause physical or emotional distress to the child, they will not be allowed contact. The Court will also need to take into account the impact on the other parent of allowing such contact, and whether this contact exposes them to the risk of further abuse.
If a parent makes allegations of domestic abuse that are very serious, the Court will need to carefully consider whether these allegations are true, on the balance of probabilities. To do this, the Court will consider all of the relevant evidence and may have a special hearing, known as a ‘fact-finding’ hearing, to decide if the allegations can be proved.
If the Court considers that the allegations are proved, the responding parent will need to show that they understand how their past behaviour has harmed their child’s life and their emotional development. They will also need to demonstrate that they are taking positive steps to address their behaviour and convince the court they pose no threat to the child. The court may limit or deny their contact with their child if they are unable to do either of these. The court will also consider the role that each parent has played in the child’s life so far and the reasons that the abusive parent is seeking either an order for the child to live with them or spend time with them.
If the Court considers that there is a level of risk to the child, then any decision will be made in light of this risk, to ensure the safety of the child. This can involve limited contact or in more serious cases, refusing to allow any contact at all.