The Judicial Perspective His Honour Judge John Platt

Contact and Domestic Violence
The Judicial Perspective
His Honour Judge John Platt

Whose right is it ?
Contact is the right of the child NOT the
parent
NO mention of parents’
rights in the
Children Act; but
Parents rights are included in the rights
guaranteed by Article 8 of the EHRC
Where there is a conflict children’s s welfare
interests will prevail

The starting point
Every child has a right to grow up with a
loving relationship with both parents
– It will only be curtailed or denied if there are
cogent and compelling reasons to do so
– It is the responsibility of parents to take the
practical steps to ensure that this happens
– Assisted if necessary by the Family Court and
its support services

Cogent and compelling Reasons
The decision of the Court of Appeal in Re L,V,M
and H [2000] 2FLR 334 marked a sea change in
the attitude of the courts towards Domestic
Violence
Recognition of indirect effects on children
– Children may become victims simply by witnessing
Domestic Violence
– Women may be so seriously traumatised by Domestic
Violence that their own parenting ability is or will be
adversely affected if contact is ordered.
Domestic Violence is not an automatic bar to
contact but is recognised as a very important
factor in the decision making process whether to
order contact and if so what kind of contact

The 2008 Practice Direction
Applies to
– all cases where any question arises about
residence or contact between a child and a
parent or other family member – AND
– Where it is alleged or there is reason to
suppose
that a child or a party has
experienced Domestic Violence or there is a
risk of Domestic Violence

What is Domestic Violence ?
No precise definition but includes:
– Physical violence
– Threatening or intimidating behaviour
– Any other form of abuse
– which may have directly or indirectly caused harm to
the other party or may give rise to the risk of harm.
Harm in relation to a child means ill treatment or
the impairment of health or development
including impairment suffered from witnessing
the ill treatment of another.

How does the court respond ?
Once an issue of domestic violence arises
the court must:
– Identify the factual and welfare issues involved
– Consider the nature of any allegation or
admission and the extent to which this will be
relevant to the issues or residence and
contact before the court
– Give directions to enable those factual and
welfare issues to be determined fairly and
expeditiously.

Taking a proactive role
The court will decide whether a proposed
consent order meets the welfare test in
section 1(1) of the CA 1989
Unless the parties are present in court, the
court must be satisfied that there is no risk
of harm to the child in making an order
before it makes a consent order or allows
an application to be withdrawn.

The first hearing
The Court will have received the initial
screening report from CAFCASS
The parties will be told what is in the report
unless the court considers that disclosure
would create a risk of harm to a party or a
child
Court will decide whether allegations or
admissions of Domestic Violence will be
likely to affect the decision of the Court ?

Fact finding
Once the court has identified that there are
relevant contested issues of Domestic
Violence it will usually direct a separate
fact finding hearing with directions for
– Statements from parties and witnesses
– Information from police or medical records
– Evidence from other sources

The fact finding hearing
The court will record its findings in writing
and serve a copy on the parties and
CAFCASS
Any admission of Domestic Violence
whenever made will be put in writing and
kept on the court file
The judge who conducts the fact finding
will also normally conduct any final hearing

Section 7 reports
These will normally be ordered in any case
where Domestic Violence is raised as an issue
Normally not expected to be filed until the
completion of the fact finding hearing
Following the fact finding hearing the court will
re-consider the scope of any section 7 report
ordered and CAFCASS may be invited to
comment before a decision is made

Impact on the decision making
process
Findings of Domestic Violence are directly
relevant to section 1(3) checklist
– harm or risk of harm (section 1(3)(e)
Orders for contact should only be made if
the court is satisfied that the physical and
emotional safety of the resident parent and
the child can so far as possible be secured
before during and after contact

Relevant factors
The effect on the child and the resident parent of
the Domestic Violence
Is the application genuinely motivated or simply
being used as a process of continued
harassment
Can the applicant be trusted to behave during
contact ?
Does the perpetrator appreciate the effect of past
violence and the potential for future violence ?
What is the attitude of the perpetrator towards
past violence and does he have the capacity to
change ?