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When a relationship breaks down, the parties will have to try to make satisfactory arrangements concerning many issues – but none more important than those for their children. Discussions on this issue can be fraught with difficulty and differences of opinion as to what is in the best interests of the children. Nothing, however, is likely to produce greater tension than if one of the parties alleges that they have been subject to domestic abuse from their former partner.
New rules have just come into force which guide the court in the approach that should be taken in finding a solution to such cases if the parties are not able to resolve them themselves.
The issues to be decided
On a separation, where there are children, the primary issues which the parents will have to consider are:
- Are the children to split their time between parents now living in separate households?
- If so, how are the practicalities of such an arrangement to be worked out?
The welfare test
In any disagreement between parents about the arrangements which should be made concerning their children, it is the best interests for the welfare of each of the children which must prevail.
How are the best interests of a child worked out?
The best interests of a child are established by looking at all the relevant factors relating to their physical and emotional well-being and include:
- the wishes and feelings of the child, in so far as they can be established
- the physical, emotional and educational needs of the child
- the likely effect of a change of arrangements
- their age, sex, background and other characteristics which are relevant
- any harm already suffered by the child or that the child is likely to suffer
- the capability of each parent of meeting the needs of the child
The starting point
The new rules specifically lay down that, in any court proceedings relating to a child, the court must presume that the welfare of the child will be best served by the involvement of both parents, unless there is good reason to the contrary.
In order to decide whether such “good reason” exists, the court must consider carefully “any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm”.
A history of domestic abuse is, of course, not the only factor to be taken into account but the sad reality is that many cases that have to be decided by the courts involve claims that there has been abuse of some sort. Consequently, the courts now regard it as their duty to investigate in every case involving children any evidence that abuse has taken place.
What follows is a brief description of some of the most important steps that the court will take if it decides that there has been an allegation of such abuse.
Attending a court hearing
If there is any suggestion that one of the parties might be at risk from meeting a former partner then the court must ensure, so far as is possible, that appropriate arrangements are made for the hearing, including entering and leaving the court building and in the waiting area.
The first court hearing
In every case where the parties are looking to the court to settle a dispute about arrangements for a child, CAFCASS (the court welfare service) will be asked to undertake investigations at the outset and produce a report (known as a safeguarding report) as to whether domestic abuse is already or is likely to become an issue in the case. If that report is not available by the time of the first hearing, then the judge must adjourn that hearing until the safeguarding report is available. The parties both have the right to read that report.
Generally speaking, the court will not consider it appropriate to make any court order relating to the child (e.g. contact) until the safeguarding report has been completed and read by the judge.
Once the safeguarding report is available, the judge will include in any court order made a statement as to whether or not an allegation of domestic abuse is relevant to the case.
Fact-finding hearing
Where there is an allegation of domestic abuse which is not admitted, the court is required to have a hearing (known as a fact-finding hearing) of the evidence concerning the allegation. At the conclusion of that hearing, the court will make a formal finding in relation to each such allegation as to whether it is proved or not proved.
If the court decides that the evidence does not support the allegation then it will be found “not proved”, which means that for the rest of the case the allegation will be treated as if it had not happened.
If however, the allegation is found “proved” then the court will take it into account when making a final decision on the case and part of the overall “welfare” of the child.
Interim orders prior to outcome of fact-finding hearing
Pending the outcome of a fact-finding hearing, the court will generally not make an interim order, (e.g. for contact) unless the court decides (and such a decision would be unusual) that an order would be in the best interests of the child and would not expose the child to any risk.
Important points about procedure at fact-finding hearing
It is generally regarded as undesirable that the alleged victim of domestic abuse should be questioned in court directly by the person said to have been the aggressor.
To avoid such a situation arising, and particularly as so many parties are nowadays not represented by a lawyer, the court will usually restrict the questions that can be asked, require each party to put such questions in writing and the questions will be asked by the judge.
Court orders
It may sound like a statement of the obvious, but the law specifically sets out that no court order should be made which exposes a child to unmanageable risks of harm but should, rather, be in the best interests of the child.
Having said that, the court is also obliged, when considering what, if any, court order to make, to take into account the conduct of both parties towards each other and the child.
Any court order must consider any harm which the child and the parent with whom the child is living has suffered as a result of domestic abuse. The court will only make an order for contact if it is satisfied that the physical and emotional safety of the child and the parent can be protected before, during and after contact, and that there is no serious risk of further abuse
Summary
Disputes concerning a child where there are allegations of domestic abuse are some of the most difficult. There are many factors that have to be considered and it is always the best interests of the child that will be paramount. Legal proceedings concerning such disputes can be complicated and emotions tend to run high. We always recommend that legal advice is taken at an early stage. We have experts in this area of family law who are trained to give straightforward and practical advice.
For more information or some preliminary confidential advice, please contact our Family Team.
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