Although the Practice Direction may be said to conflict with some of present case law, the position it sets out is clear. It is generally in line with the law as it is presently recognised by practitioners.

 

The Practice Direction applies to applications for Contact and Residence orders and any residence or contact issues that may arise in public proceedings.

 

If the issue of Domestic Violence is raised at all then the Court MUST:

 

i.                    Identify the factual and welfare issues involved at the earliest opportunity;

 

ii.                  If the allegations are denied then the Court must arrange for the relevant factual issues to be determined ‘expeditiously and fairly’ by timetabling a fact finding hearing, directing the parties to file written particulars of the allegations made and responses.

 

iii.                If the allegations are admitted or proved, the Court must then (according to paragraph 11 Practice Direction) consider the nature of the Domestic Violence and its relevance in deciding the welfare issues involved in considering whether or not contact or residence should be ordered.

 

Practically, the need for detailed instructions at an early stage (in order to see whether you are to be raising issues or whether you can anticipate issues being raised) cannot be stressed enough. This has been the position for some time, as was confirmed in Re: D (Intractable Contact Dispute Publicity) [2004] EWHC 727 (FAM) [2004] 1 FLR 1226 where it was said:

 

“The Court should grasp the nettle. Such allegations should be speedily investigated and resolved, not left to fester unresolved and a continuing source of friction and dispute. Court time must be found – and found without delay – for fact finding hearings. Once findings have been made, everybody must thereafter approach the case on the basis of the facts judicially found.”

 

When considering fact finding hearings Scott-type Schedules are very useful and should, as a matter of practice, be ordered. Laraine dealt this with in detail previously[1]. Insofar as evidence is concerned it is important for advisors to seek evidence at an early stage. A benefit of the early identification of the issue of Domestic Violence is that better evidence may be available. The dicta from Black J in Re: A (Contact: Risk of Violence) [2006] 1 FLR 283 is noteworthy where he said that where a finding of fact was sought, the Court expected and required the best possible evidence on which to make its decision; this was a particular problem in cases involving allegations of domestic violence, which required proving. Full statements and schedules of the matters in issue were specifically endorsed in order to assist in achieving clarity. Where first-hand evidence could be available it should be so made either in witness or documentary form and attention should be specifically drawn to the issue of corroborative evidence or evidence which gave rise to doubt regarding important allegations. Police and medical records often provide such assistance.

 

If there are allegations of Domestic Violence but the Court does not consider that a fact-finding hearing is necessary for whatever reason (i.e. they will impact on the welfare issues) then the Court MUST record reasons for NOT ordering the fact finding hearing (para 13 Practice Direction).

 

If fact-finding is deemed necessary then the Court will direct evidence, disclosure etc and timetable expeditious hearing. Importantly, where the Court fixes a date for a fact-finding hearing to take place it must also fix the date for the determination of the application (para 14 Practice Direction).

The Court must be wary of making orders by consent. To do so the parties must both be present in Court and the Court must satisfy itself that there is no risk of harm to the child. The Court may order a s.7 report before considering a consent order.

 

Initial screening should be done by CAFCASS regardless in all contact/residence applications. It goes without saying that CAFCASS should be informed of Domestic Violence allegations, admissions and findings. The Practice Direction provides that the Court has responsibility for an essentially fast track contact procedure between it and CAFCASS. For instance, paragraph 7 of the Practice Direction provides that CAFCASS SHALL be informed immediately upon the making of applications in order for initial screening.

 

If admissions are made in Court then they must be recorded in writing and if the facts are found in the Magistrates’ Court then the same justices (or at least 1 of the Bench) should remain with the case. This is potentially in conflict with current recognised caselaw such as M v A ( Contact: Domestic Violence)Para 15 of the Practice Direction provides that just 1 member of the bench need remain sitting at the Welfare stage once fact-finding has taken place. [2002] 2 FLR 921 (Fam Div) where it was said that the entire bench should remain since “A hearing before a differently constituted bench was wrong in law and contrary to sound sense. They were part-heard."

 

It seems that the Practice Direction has delay in mind when dealing with hearings and perhaps the change is brought about for that reason, though no indication is given that the matter was given any particular consideration. Plainly the same DJ or HHJ should sit should the matter be proceeding in the County Court.

 

It is likely now that the first time Domestic Violence will be raised will be in the Magistrates’ Court since it is required to be raised at as early a stage as possible. Should serious Domestic Violence be alleged, such as Rape, then the matter should be transferred to County Court and consideration given to whether the children should be separately represented. Unfortunately the Practice Direction is silent insofar as guidance on transfer is concerned so the same rules as previously apply.

 

In applying the Practice Direction the Court will be more wary of making Interim Orders. It is therefore even more important to have proposals for ensuring the security of the residential parent and of the child when considering the issue and making application. If there is any flavour of Domestic Violence to a case then proposals for keeping the parents entirely separate, with no risk whatsoever of their coming into contact (particularly in the presence of the child) will be potentially decisive.

 

The Practice Direction sets out that the Court has power to impose pre-conditions to contact such as a pre-condition that the party seeking contact but accused of Domestic Violence seeks advice and treatment. It seems that that can only arise should admissions be forthcoming.

 

Within fact-finding hearings the Court should seek not only to determine whether the allegations are made out but also wider aspects of the violence. Para 21 of the Practice Direction indicates that the Courts findings should deal with the:

 

Para 27 Practice Direction provides that the Court should consider the conduct of the parties towards each other as well as toward the child. Plainly their conduct toward the child includes, it is submitted, their disregard for the child when engaging in violence etc in the presence of the child. It is important to remember that the definition of “Harm” for the purposes of the 1989 Children Act (s.31(9) and 105(1)) includes “impairment suffered from seeing or hearing the ill treatment of another.”

 

By way of aside, it has recently been confirmed that there is no place for a submission of ‘No Case to Answer’ in a Domestic Violence fact-finding hearing (Re: R (Family Dispute: Evidence)Times, 29^th August 2008, CA, per Thorpe LJ)

 

The Practice Direction (para 26 – 27) sets out the factors which are specifically to be taken into account when determining whether to make residence or contact orders in ALL cases where findings or admissions as to Domestic Violence have taken place. Attitude is important, there is a need for statement evidence to address it in detail.

 

 

Once CAFCASS involvement begins, which should be at an early stage, the updated and improved “Domestic Violence Toolkit” will be utilised. The Toolkit is used by CAFCASS to focus on understanding a child’s response to Domestic Violence. There is a checklist in the kit. It is worth knowing what is in the checklist since it will be the starting point for the report writer. Forewarned is forearmed. Understanding the process used and basis upon which the report writer will reach their conclusions, i.e. what questions are asked, should assist in framing the client’s evidence in the most sensible way.

 

Within the Toolkit, at p.42, is a list of parent assessment questions that are routinely used. The child assessment questions used can be found at p.50

 

The Toolkit, at p.52, addresses tick lists of positive and negative influences under heading “Factors to consider when assessing possible contact arrangements in circumstances of Domestic Violence.”

 

The Toolkit, at p.64, provides a list of “Key Elements for CAFCASS Safety Assessments.”

 

The Toolkit, at p.65 (Appendix 1), provides a MARAC assessment form, useful to incorporate into standard questions on initial instruction.

 

Electronically the toolkit can be found at: http://www.cafcass.gov.uk/English/Publications/policies/Domestic_Violence_toolkit_(Version_2_-_August_2007).doc

(A hard copy of the public document accompanies this handout.)

 

 

The importance of dealing with the factors set out in Re: L (A child) [2001] 1 WLR 339 cannot be stressed enough. There have been a number of decisions where the Court of Appeal has criticised Judges (and also the parties who appeared before the Judge) for not having applied their minds to the specific guidance. Advisors should ensure that the evidence put forward addresses each issue. The way that statement evidence is set out should also ensure that the Court is reminded of each issue and head of consideration.

 

 

The Court of Appeal commissioned research of its own during its consideration of Re: L from Dr Claire Sturge and Dr Danya Glaser whose report stressed that Domestic Violence “involves a very serious and significant failure in parenting”. It particularly highlighted the following:

i.                    Children are affected as much by exposure to violence as to being involved directly in it – the ongoing fear of recurrence is also very emotionally damaging;

ii.                  All children are affected by significant and repeated inter-parental violence, even if they are not directly involved;

iii.                Even when children do not continue in violent situations, emotional trauma continues to be experienced, with the memories of the violence continuing as persecutory images;

iv.                 The context of the overall situation is highly relevant to decision making;

v.                   The contribution of psychiatric disorders to situations of domestic violence and emotional abuse must be considered, such disorders will have put enormous pressures not only on the child but also on the other parent;

vi.                 The child may have post-traumatic anxieties or symptoms which the proximity of the non-resident violent parent may re-arouse or perpetuate;

vii.               There may be a continuing awareness of the fear that the violent parent arouses in the child’s main carer;

viii.             Those situations have a possible effect on the child’s own attitudes to violence, to forming parenting relationships and to the role of fathers, with the attitudes in boys particularly affected.

 

The report recognised that there could be potential detriment to the child of having no direct contact with the non-resident violent parent but said that “there should be no automatic assumption that contact to a previously or currently violent parent is in the child’s interests” it went on to say “if anything the assumption should be in the opposite direction.” 7 factors were listed in the report, without which, in the authors’ opinions, the balance should tip against contact.

 

The 7 factors were:

1.      some (preferably full) acceptance of the violence alleged;

2.      some acceptance (preferably full if appropriate, i.e. the sole instigator of violence) of responsibility for tat violence;

3.      full acceptance of the inappropriateness of the violence, particularly in respect of the domestic and parenting context and the likely Ill-effects on the child;

4.      a genuine interest in the child’s welfare and full commitment to the child;

5.      a wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the resident parent and helping the child to develop appropriate values and attitudes;

6.      an expression of regret and the showing of some understanding of the impact of their behaviour on the resident parent in the past and currently;

7.      indication that the parent seeking contact can reliably sustain contact in all areas.

 

It must be remembered however that the Sturge and Glaser report was simply the basis for the legal principles set down in Re: L. It is thus NOT the law. The principles expounded by the Court of Appeal as law may be summarised as follows:

 

i)              the Court should consider the conduct of both parties towards each other and towards the child, the effect of the violence upon the child and on the residential parent, and the motivation for the parent seeking contact, i.e. is it a desire to promote the best interests of the child or a means by which to continue violence, intimidation or harassment of the resident parent;

 

ii)            on an application for interim contact, when the allegations of domestic violence await adjudication the Court should give particular consideration to the likely risk of harm (physical or emotional) if contact were granted or refused (any risk of harm to the child must be minimised and the safety of the resident parent as well as the child should be secured before, during and after any such contact).

 

iii)          There was not, and should not be a presumption that on proof of domestic violence the offending parent had to surmount a prima facie barrier of no contact. As a matter of principle, domestic violence of itself cannot constitute a bar to contact but is one factor in the difficult and delicate balancing exercise of discretion to be undertaken by the Court.

 

iv)          In cases of proved domestic violence the Court has to weigh the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors. The ability of the offending parent to recognise his/her past conduct, to be aware of the need to change and to make genuine efforts to do so would be likely to be an important consideration when performing that balancing exercise.

 

v)            The rights of the child must prevail.

 

 

Instructions as to domestic violence should be actively sought at an early stage.

 

Statement evidence must address the Re: L guidance specifically. It may be useful to address the 7 points set out in the Sturge and Glaser report whilst so doing in order to address each and every relevant aspect. The factors at paragraphs 26 and 27 of the Practice Direction should also be specifically addressed.

 

The CAFCASS Domestic Violence toolkit provides a number of useful checklists which can assist in focussing statement evidence when dealing specifically with issues in cases where Domestic Violence is a feature. They are helpful when framing evidence in relation to interim contact disputes, the fact finding hearings itself (particularly the nature and degree issues which will have to be resolved within the fact finding exercise), the welfare issues and also potentially the post ‘pre-condition to contact/residence’ stage.

 

BEN BLAKEMORE

Iscoed Chambers

 

Annexed hereto are:

1.      Lawtel Summary of Re: L (2001) 2 WLR 339; (2000) 4 All ER 609 for convenience;

2.      CAFCASS Domestic Violence Toolkit

3.      Practice Direction of 9^th May 2008

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