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“The Harm Report”: Assessing risk of harm to children and parents in private law cases

Earlier this year, and following a public consultation in 2019, the Ministry of Justice published a much anticipated panel report assessing the risk of harm to children and parents in private law cases (also known as “the Harm Report”). The report was commissioned following widespread concern about the ability of the family justice system to properly serve and protect the interests of victims of abuse, including parents and children.

This week, I and many other family law specialists attended a seminar hosted by Women in Family Law on the subject. The seminar took the form of a Q&A discussion between Her Honour Judge Williscroft and Professor Rosemary Hunter FAcSS, one of the co-authors of the report. I would like to extend a big thank you to them both and also to Women in Family Law for putting on such an insightful session and for bringing a much needed spotlight to a deserving issue.

The aim of the Harm Report

The Harm Report, comprising some 216 pages, reflects the findings of an expert panel and provides an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences. The focus of the report is on cases which involve disputes between parents about the arrangements for their children (known as “private law children proceedings”). The report makes findings in relation to both the processes and the outcomes for parents and children involved in such proceedings as well as recommendations in terms of steps to be taken forward to ensure that the family justice system protects even the most vulnerable members of our society, as it should do.

The Legal Framework

To have a full appreciation of the report, its findings and conclusions, it is necessary to understand some basic principles of the law relating to children.

Most private law children proceedings relate to applications made for a child arrangements order, which the Court has the power to make under Section 8 of the Children Act 1989. A child arrangements order governs with whom a child should live, spend time and have any other contact.

The Court’s paramount consideration in any decision that it makes about a child’s upbringing is the welfare of the child concerned. This is referred to as “the welfare principle”, and the Court must have regard to “the welfare checklist” set out in section 1(3) of the Children Act 1989, namely:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
  • Physical, emotional and educational needs.
  • The likely effect on him of any change in his circumstances.
  • Age, sex, background and any characteristics of his which the court considers relevant.
  • Any harm which he has suffered or is at risk of suffering.
  • How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
  • The range of powers available to the court under the Children Act 1989 in the proceedings in question.

Whilst there is no automatic right to contact between a parent and child, there is a statutory presumption of parental involvement. That is, the Court is required – by virtue of section 1(2A) of the Children Act 1989 – to presume that the involvement of each parent in their child’s life will further the child’s welfare, unless there is evidence to suggest that the involvement of that parent in the child’s life would put the child at risk of suffering harm. This presumption was well established in case law before the enactment of section 1(2A) of the Children Act 1989.

Finally (at least for the purposes of this blog), there is Practice Direction 12J, which sets out what the Family Court is required to do in all child arrangements cases where domestic abuse is an issue. It applies whether the abuse is admitted or alleged, or if there is any other reason to believe that the child or a party has experienced domestic abuse perpetrated by another party, or that there is a risk of such abuse.

The overriding theme of the report

The report paints a shocking picture of the state of the family justice system and the experiences of victims of domestic abuse (parents and children alike) within the Court process.

What struck me most when listening to Professor Hunter speak during the seminar were the stories of those parents – usually but not always the mother – trapped in an abusive relationship. That parent puts up with their partner’s unacceptable behaviour in an effort to protect their child and until they cannot take it anymore. The victim-survivor eventually leaves the abusive relationship, taking the child with them, and the perpetrator will often respond by making an application for a child arrangements order. Many victim-survivors reported experiencing re-traumatisation as a result of having to participate in Court proceedings against their former partner. The report refers to an overwhelming “pro-contact culture” (based on the presumption of parental involvement) which often leads to the Court making orders for face-to-face contact between a child and the perpetrator of abuse that are unsafe and place both child and the other parent at risk of harm. As a result, many victim-survivors regret making the decision to exit the abusive relationship in the first place because they are ultimately left with a Court order that is unsafe and puts them and their child at risk of harm.

Other issues and areas of concern that were discussed during the seminar included the following:

  • Abuse is often minimised and mischaracterised as “mutual conflict”.
  • Whilst coercive control is a criminal offence, the Courts lack the time and resources to give each and every case the time and consideration they deserve. There is a risk that abusive behaviour is left unchecked.
  • Actors within the family justice system, whilst well intentioned, can be part of the pro-contact culture many victim-survivors complained of. The report came across parents being advised by their lawyers not to raise issues of domestic abuse for fear that they would come across as obstructive to contact.
  • The more or less total destruction of legal aid is unhelpful, but the problems identified in the report existed in the family justice system before.
  • Parental alienation is commonly used as a counter-allegation by a parent who is being accused of abusive behaviour by the other. The impact of this counter-allegation is that it switches the emphasis from the perpetrator of abusive to the victim-survivor.
  • The trauma victim-survivors experience as a result of going through the Court system – including giving evidence – undermines their ability to present and articulate themselves. The victim-survivor’s energy is focused on remembering details about their case and they lose focus of the basic coping mechanisms they need to practice in order to simply get through the traumatic experience of being in Court and giving evidence. As a result, the perpetrator of domestic abuse will often appear cool, calm and collected by comparison.
  • Children’s voices were often not being heard, despite this being a factor in the welfare checklist. This was particularly complained of in cases where a child expressed a desire not to spend time with the other parent. The pro-contact culture is partly to blame for this.

Recommendations

The report makes the following recommendations:

  • There needs to be a robust and statutory framework in place within the family justice system which ensures the early identification and effective response to women and children’s experiences of domestic abuse.
  • Actors within the family justice system – including Judges, solicitors, barristers, CAFCASS officers and mediators – must receive compulsory, specialist training on domestic abuse and its impacts on women and children’s lives.
  • Courts must seek risk assessments from specialist domestic abuse organisations before making a decision about contact.
  • Adequate and appropriate safeguards should be put in place to enable women to voice their concerns about their and their children’s safety.
  • Special facilities that mirror those available in criminal proceedings must be introduced in civil proceedings to prevent victim-survivors of domestic abuse from having to face perpetrators in court and protect victim/survivors from direct cross-examination by their perpetrators and contact with them inside court buildings.
  • The Government must monitor the impact of the Legal Aid Sentencing and Punishment of Offenders Act 2012 on the representation of parties in private Children Act proceedings, including disaggregating data about applicants and respondents by gender and status.
  • The Ministry of Justice must collect and record data on:
    • the presence and extent of domestic abuse (rather than allegations of harm) in private family law proceedings;
    • whether or not finding of fact hearings are held where there are allegations of domestic abuse;
    • reasons for not holding finding of fact hearings where there are allegations of domestic abuse.
  • CAFCASS must have an effective complaints process and a clear and transparent process for requesting a change of CAFCASS officer.
  • The Government must take into account the recommendations of the Family Justice Review and the wealth of evidence on child contact proceedings and domestic abuse, and reconsider proposals to introduce a legislative presumption that both parents should be involved in children’s lives.
  • The number and geographical availability of specialist supervised contact centres/provision must be increased to address ongoing risks.
  • The Government must urgently review the decision to restrict legal aid in family law cases.

At Rayden Solicitors, we are experienced in dealing with cases involving domestic abuse and we offer you tailored advice and support you through the process of private law children proceedings. If you require out assistance or have been affected by any of the issues raised in this blog, please contact us.

The Government’s report assessing risk of harm to children and parents in private law children cases can be read in full here.

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