There are particular rules the court has to follow in cases concerning children when there has been domestic violence. These are set out in Practice Direction 12J. You may find it helpful to read it in full. You can find a copy here: Practice Direction 12J
What is Practice Direction 12J?
Practice Direction 12J is part of the Family Procedure Rules. These are rules that set out the way the court should deal with family cases. Judges must refer to it in any application relating to children where there are allegations that a party or child has experienced domestic violence by another party.
What is domestic violence?
Domestic abuse includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse. This can include psychological, physical, sexual, financial, or emotional abuse.
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; 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;
How are allegations of domestic violence raised?
In Children Act proceedings anyone alleging domestic abuse must complete a Form C1A. The importance of this form cannot be over-stated whether you are the one making the allegations or the one responding to them.
A Cafcass officer will speak to you before the first hearing. When you speak to them, make sure you are ready to discuss with them any allegations and what you say about them.
In Practice Direction 12J, the court has a responsibility to think about whether domestic violence is an issue in the case. If it is alleged that there has been domestic violence in the relationship, the court must go on to analyze what happened and whether the allegations, if true, should impact on decisions about the children.
The court should only order contact if it is satisfied that a parent or children will not be exposed to the risk of harm. The Court is risk averse about this.
What should happen at court?
Before the first hearing, Cafcass should contact you and the other parent to discuss the application. They will also complete what are called safeguarding checks. This is where they contact social services and the police to see if they have ever been involved with your family. You are entitled to know what the outcome of these checks are.
At the first hearing, if the safeguarding checks are not available, and no other reliable safeguarding information is available, the court must adjourn the first hearing (this means put it off until a later date) until the results of safeguarding checks are available. The court should not make any orders for contact without the safeguarding information from Cafcass unless the order is to protect your children.
When will the court have a fact finding hearing?
If the allegations of domestic violence are denied, then the court will not be able to rely on them until the court has heard the evidence and decided whether it believes they did or did not happen. The hearing when the court will listen to the evidence from you, the other side and any witnesses you have, is called a fact finding hearing. Under Practice Direction 12J, the court should have a fact finding hearing if the allegations will make a difference to the court’s final decision. The decision the Court should be thinking about is whether, as a result of the allegations, there is a risk of harm to a party or your children as a result of the domestic violence. It will consider the following factors:
- the views of the parties and of Cafcass
- whether there are admissions by a party
- if a party is in receipt of legal aid, what was the evidence used for legal aid purposes
- whether there is other evidence available to the court
- whether decisions can safely be made without a fact-finding hearing;
- the nature of the evidence required to resolve disputed allegations;
- whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.
You must think about what you want to achieve at court and whether the alleged domestic violence is genuinely relevant to the decision the court has to make. Detailed legal advice on the implications of this can make all the difference to the future for you and your children.
Practice Direction 12J says that if the court believes that it is necessary to have a fact finding hearing, the court should not order that contact takes place unless they can be satisfied that your children and you would not be exposed to an unmanageable risk of harm.
In order to make this decision, the court should think about the effect of contact on you and your children whether that is emotional, physical or psychological. The court should think about whether there may be arrangements that would make contact manageable, such as contact with someone else present, video contact, or the other side sending letters or cards.
How will the court make final decisions about contact where there has been domestic violence?
In every case where domestic violence has been established, the court should consider the conduct of both parents towards each other and towards the child and the impact of this behaviour. In particular, the court should consider:
1. the effect of the domestic abuse on the child and on the arrangements for where the child is living
2. the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents
3. whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent
4. the likely behaviour during contact of the abusive parent and its effect on the child
5. the capacity of the parents to understand the effect of past domestic abuse and the potential for future domestic abuse.
Where there has been domestic violence and this is either accepted by the other side or found to be true by the court at a fact finding hearing, the court can still make an order for the other side to have contact.
There are factors that the court considers in every application to do with the upbringing of a child. This is called the welfare checklist. They are:
1. Your child’s wishes and feelings in the light of his or her age and understanding.
2. Your child’s physical, emotional and educational needs
3. The likely effect on your child of any change in his or her circumstances
4. Your child’s age, sex, background and any relevant characteristics
5. How capable both parents are of meeting your child’s needs
6. The range of powers available to the court
However, there are additional factors that the court must think about before they make an order for contact. The court should take steps to obtain information about the facilities available locally to assist any party or the child in cases where domestic abuse has occurred. This may be domestic violence support services, perpetrator programmes for the other side, contact centres or other facilities that they believe are relevant.
Here at Stantons we hope that this explanation highlights the complexity of this decision making process and its potential impact on your lives. This is where our expertise can truly count.
If the court makes an order, the court must always explain why it takes the view that the order will not expose the child to the risk of harm and is beneficial for the child.
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