Where there is history of domestic abuse, the law in relation to contact with children could be quite surprising to some.
The Children Act 1989 sets out that there is a presumption of parental involvement. It will be presumed, unless shown to the contrary, that involvement of some kind, either direct or indirect, from each parent will be beneficial for the child. Contact will only be permitted if it does not pose a risk to the child.
The type of order that is required to deal with contact arrangements is a Child Arrangements Order (CAO). This Order sets out whom a child shall live with and when and how they are to have contact with the non-resident parent.
When considering an application for a CAO there are three principles that the Court will follow:
- The welfare principle – the child’s welfare is the Court’s paramount consideration
- The no delay principle – any delay should be avoided as this would be detrimental to the child’s welfare
- The no order principle – the Court will only make an order if it would be better for the child than no order at all
The Court will also apply the welfare checklist, the aim of which is to promote a consistent approach and to provide a framework for the Courts. The factors that the Court consider when applying the checklist are:
- The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in their circumstances;
- The child’s age, sex, background and any characteristics of the child which the Court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each of the child’s parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting the child’s needs; and
- The range of powers available to the Court under the Act in the proceedings in question.
The leading case law in relation to contact and domestic abuse is the combined cases of L.V.M.H . All four initial applications failed and all four decisions were appealed.
Following these cases, the general approach taken where allegations of domestic abuse are raised is:
- Any allegations must be investigated and proved or not proved;
- If proved, the fear is deemed justified and not just a case of implacable hostility (see article on this topic here);
- The Court will then consider the following:
- The conduct of the parties towards one another;
- The conduct of the parties towards the child;
- The effect of violence on the child;
- The effect of violence on the resident parent; and
- The motivation of the parent seeking contact
In some Children Act cases a welfare report is ordered, known as a s7 report. If this is the case, the Court Order should contain specific directions to the reporter to address the issue of domestic abuse.
On making a Child Arrangements Order where there is proof of domestic abuse, the Court should consider what directions or conditions should be attached to the Order for example whether contact should be supervised and whether the Order should be reviewed at a later date.
When dealing with Children Act cases, each case will be decided on its own facts.
If you require more information or have any questions in relation to this or any other Family Law issue, please contact us for an initial discussion to see how we can assist.