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Sarah Miller

Posted 20 July 2017
by Sarah Miller

Domestic Violence and Child Arrangements

Sharing the care of children inevitably presents emotionally-charged challenges to the courts. But how do the courts deal with cases where there is a proven record of domestic abuse, but where the child has not been the subject of it?

A recent, anonymous, High Court case has drawn attention to this exact dilemma being faced by judges.

Prior to the case being heard in the High Court, the father had previously appealed  allegations made against him that he had perpetrated domestic abuse. The court found sufficient evidence to prove that he had been physically and verbally abusive, including in the presence of the child, resulting in his appeal being dismissed.

Following this, the judge proceeded to deal with the father’s contact with the child. Before judgment was given, the court heard a report from a CAFCASS officer. The report stated that the father should undertake a domestic violence perpetrator programme, apologise and accept responsibility for his actions before contact with the child could be considered safe.

Despite the warnings in the CAFCASS officer’s report, the judge was of the opinion that, as the child had never been the subject of their father’s abuse, it was important to establish a relationship between father and child. This is in keeping with the family court’s principle that parental involvement with the child will be most beneficial to the child’s welfare.

However, the judge ordered that direct contact should begin between them immediately, without having applied Practice Direction 12J, which must be applied by the court in all cases where domestic violence has taken place, so as to promote the involvement of both parents in the child’s life, while preventing an abusive ex-partner from harming either the other parent or the child. This resulted in the case being taken to the High Court.

The High Court was informed that the father could not afford the £1600 cost of the domestic violence perpetrators programme, that he had not paid his half for drug testing and that he was on benefits. The judge was, however, unable to ignore the CAFCASS report, which argued that direct contact between the father and the child was unsafe.

Taking into account the welfare of the mother and child, and the financial situation of the father, the judge was left with the option of directing the local authority to conduct a section 7 risk assessment report, under the Children Act 1989, which states that:

“7(1) A court considering any question with respect to the child under this Act may…

(b) ask a local authority to arrange for –

(i) an officer of the authority; or

(ii) such other person (…) as the authority considers appropriate to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.”

Such a report will likely take longer than the completion of the domestic violence perpetrators programme, but it may be most appropriate in order to keep lower-income perpetrators of domestic violence in contact with their children in as safe a manner as possible.

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About the author

Sarah Miller

Sarah Miller

Associate member of CILEx

Associate member of CILEx within the family team.