The effect that Domestic Abuse has on the children within any relationship has been recognised by the professionals such as GP’s, Health Visitors, Solicitors and Barristers for many years. However, when a woman left her home due to the abuse suffered at the hands of her partner with her children, the common practice would be for the partner responsible for the abuse to issue an application through the Court for contact with the children.
In this article I will highlight some of the changes that have been made to the Law that ensure that the impact that domestic abuse has on children is recognised. This article will also explain the manner in which the Court and the Police can now deal with those that are subject to Orders as a result of their behaviour. I will highlight briefly the impact of the changes and the importance of recognising this abusive behaviour and accepting that this will have had an impact on the children that have witnessed it. I also refer in the article to the mother being subjected to the abuse and the father being the perpetrator. This is for ease of writing and is the usual event that solicitors are presented with. The law however applies equally to whether it is the mother or father being subjected to this abuse.
It is often the case that the mother would be concerned about the motivation of the father in seeking contact and raise issues about his ability to care for the child and the lack of involvement with the child during the relationship. The practice was that where there was no risk to the child or any evidence of it, then there was an assumption that contact should take place. The Children Act 1989 is the legislation that governs this practice. Changes were required to be made which would allow the domestic violence and the impact that this would have on the child to be considered as one of the factors in deciding whether contact was in the interests of the child.
Within the Children Act 1989 there is the Welfare Checklist which is used to identify the risks to the child and ensure that the interests of the child are of paramount consideration in any court proceedings. S.120 of the Adoption and Children Act 2002 ensured that within this welfare checklist the factor of “impairment suffered from seeing or hearing the ill-treatment of another” on children is also recognised.
It is now accepted that violence does have an effect on children and although in general there is some logic to the concept that children benefit from having positive relationships with both parents, this is not always the case where there has been domestic violence. The child may have seen the abuse and the physical injuries that have been caused to the mother by the father and may be scared and frightened to say how they feel about contact. In many cases children have grown used to keeping the peace and fear that they may upset their father who may then abuse their mother in return. It is important that these effects are recognised and dealt with within the framework of any proceedings relating to children.
The person inflicting the abuse may not recognise and accept that their behaviour is incorrect and there are parenting courses and domestic violence programmes that such individuals can be ordered to attend. In the event that they fail to take the necessary steps to improve their behaviour and understand the inappropriateness of their actions, then it may be that the contact is not in the interests of the child. Those that attend the courses and make the necessary changes may find that the contact is supervised to start with, but it will gradually progress at the pace of the child and can flourish. If however, the abusive behaviour continues after Court proceedings have ended then the impact of this can be looked at again by returning the matter to the Court.
The Court process in itself will investigate the allegations of Domestic Violence further and make findings where necessary to allow the CAFCASS officers to complete their work and make the necessary recommendation to ensure that contact takes place in the safest possible way. In making the recommendation CAFCASS will have considered the abusive behaviour and its impact on both the children and mother and consider how this effects both mother and father of the child in any future arrangement made.
As with any process, there will be cases where false allegations have been made by the mother or father simply to prevent the contact from taking place. This is unfortunate, but as with any practice there will be those select few that will abuse the process.
Those cases where there are genuine concerns about the safety of the child and the mother and motivation of the father for seeking contact can be processed more effectively in light of the changes made.
In addition to this the changes made to Part IV of the Family Law Act 1996 make the breach of a Non Molestation Order an automatic criminal offence. These changes were affected by the Domestic Violence Crimes and Victims Act 2004. This means that where there is an injunction in place prohibiting one person from using or threatening to use violence against the other, and this order is breached, the Police are able to arrest and deal with the person breaching this order within the Criminal Courts.
Domestic Abuse is now also recognised as having many different forms and there is further recognition that this is not just physical harm but can also be financial, emotional, sexual and psychological.
Therefore if you are in a relationship and there has been domestic abuse within that relationship, it is important that before agreeing any contact between your partner and the children, you obtain legal advice. Although it may look to you as though you need to keep the peace and avoid any further issues with your partner’s abusive behaviour, you may be damaging your children by not recognising and understanding what they may have heard and witnessed. It is also important to recognise that the behaviour of an abusive individual needs to be addressed and if it is not then this can have an adverse effect on what your children believe to be acceptable behaviour. This as we all know, will have a negative impact on how their future relationships may develop.
If you are experiencing any of the behaviour highlighted in this article then please contact Leeds Family Law on 0113 3944145 for a FREE CONSULTATION.