HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
INFORMATION ON ALLEGATIONS OF DOMESTIC ABUSE IN CHILD ARRANGEMENT ORDERS
RESPONSIBILITY OF A LITIGANT IN PERSON
Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.
This information provides an overview on how the Court considers allegations of domestic abuse in child arrangement proceedings.
Domestic Abuse can take many forms including physical, emotional, psychological, sexual or financial abuse.
When a party raises domestic abuse in child arrangement proceedings, the court will need to decide whether it is necessary and proportionate to list the matter for a finding of fact hearing, which is a separate hearing before the final hearing on the child arrangement order.
Given the complexity of a fact finding hearing, you are strongly advised to seek legal advice. Your barrister can provide legal advice and guidance on the preparation of your case, evidence and drafting and represent you at the hearing.
Practice Direction 12J
Practice Direction 12J sets out the approach of courts in any application for contact, residence and child arrangement where there is alleged or admitted domestic violence or abuse or risk of this by a party to the case.
This Practice Direction was amended in October 2017. In this context, domestic violence includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.
Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, ‘honour-based’ violence, dowry-related abuse and transnational marriage abandonment.
‘Controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
‘Coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.
The presumption of contact (contained within the Children and Families Act) has to be carefully considered in this Practice Direction where there is an allegation or admission of domestic abuse to the child or parent or there is a risk of domestic abuse to the child or parent. The court was only required to evaluate harm or risk of harm to the child in previous revisions whereas consideration must now be given to the other parent.
The court adopts the position, relying on the recommendation of Cafcass and the other party’s position whether to order supervised contact, until the court can determine all of the evidence in the case and undertake a proper evaluation of the risk of harm from domestic abuse.
Your barrister can help you with legal advice and case preparation of the evidence on allegations of abuse or indeed help you counter allegations against you.
First Hearing Dispute Resolution Appointment (FHDRA)
At all stages of the court process, particularly in the First Hearing Dispute Resolution Appointment (FHDRA) the court must consider whether domestic violence is raised as an issue and:
identify the factual and welfare issues involved
consider the nature of the concern and their relevance to child arrangements
give directions to hear contested factual and welfare issues in a prompt and fair way
where violence or abuse is admitted or proven, ensure that child arrangements protect the safety and wellbeing of the child and other parent and does not expose them to risk of further harm. Any contact ordered with a perpetrator of violence or abuse must be safe and in the best interests of the child.
ensure that any interim arrangements are in the best interests of the child and consider whether the safety of the child and the other parent can be secured before, during and after contact.
In any case where a risk of harm to a child arising from domestic abuse or violence is raised as an issue, the court should consider directing a section 7 report by CAFCASS or children’s services unless this is not necessary to safeguard a child’s interests.
For the first time, this Practice Direction raises a presumption against interim contact in cases involving domestic abuse and thus places the onus on the parent who is the subject of the allegations to satisfy the court that such contact will not expose the child and/or the parent to an unmanageable risk of harm.
This is significantly different from the former provision, which only applied where the court ordered a fact-finding hearing, whereas the revised wording applies when a fact-finding has been directed or ‘where disputed allegations of domestic abuse are otherwise undetermined’.
The court should find information about local facilities for victims and perpetrators of domestic abuse. The court can direct that a party seek advice, treatment or other intervention before having any contact with a child.
The court will order that parties have an opportunity to respond to the s.7 report. Your barrister can help you with legal advice and guidance on the drafting of a response to ensure that you make full use of that opportunity to challenge that report.
The court may make a Contact Activity Direction such as requiring a perpetrator to attend a Domestic Violence Perpetrator Programme (DVPP) in the appropriate case.
More information on DVPP courses can be found on the Cafcass website.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister