Domestic Violence and Contact
Often we are approached by parents following their separation from their partner and the following question is put to us:-
“My ex-partner has been violent towards me, since separation the children have lived with me, do I have to let my ex-partner see the children?”
In the majority of cases, unless the domestic violence is of an extremely severe nature, if the matter proceeds to Court, then it is usually ordered by the Court that some level of direct contact should take place between the non-resident parent (i.e. the parent the children do not live with) and the children. Sometimes, dependent upon the level of domestic violence, it may be ordered that the contact takes place in a supervised or supported setting.
If the parent who has been violent towards the other party does not accept the allegations of domestic violence made against them, then the Court may order that a Finding of Fact Hearing takes place, in order to determine the facts of the matter, as to whether the parent with whom the children are living has been subjected to domestic violence.
Paragraph 26 of Practice Direction 12J in relation to the Family Procedure Rules 2010 (FPR 2010) states that when the Court is considering applications in relation to the issues of residence or contact, following a Finding of Fact Hearing, in light of any findings of fact, it should apply the individual matters in the welfare checklist with reference to those findings. In particular, where relevant findings of domestic violence have been made, the Court should in every case consider any harm which the child has suffered as a consequence of that violence and any harm which the child is at risk of suffering if an order for residence or contact is made, the Court should only make an order for contact if it can be satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact.
Paragraph 27 of Practice Direction 12J (FPR 2010) lays down the criteria in relation to what must be considered by the Court where findings of domestic violence have been made, which is as follows:-
In every case where a finding of domestic violence has been made, the Court should consider the conduct of both parents towards each other and towards the child; in particular, the Court should consider –
(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;
(b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;
(c) the likely behaviour during contact of the parent seeking contact and its effect on the child;
(d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;
(e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately.
Paragraph 28 of the Practice Direction (FPR 2010) gives directions as to how contact is to proceed in the event that it is still considered in the best interest of the children for them to have contact with the non-resident parent, even if findings of domestic violence have been made against them. These directions are as follows:-
Where the Court has made findings of domestic violence but, having applied the welfare checklist, nonetheless considers that direct contact is in the best interests of the child, the Court should consider what if any directions or conditions are required to enable the order to be carried into effect and in particular should consider –
(a) whether or not contact should be supervised, and if so, where and by whom;
(b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking advice or treatment (subject to any necessary consent);
(c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period;
(d) whether or not the operation of the order needs to be reviewed; if so the Court should set a date for the review and give directions to ensure that at the review the Court has full information about the operation of the order.
It is, therefore, plain to see that it is not a straight forward matter for the Court to determine as to whether contact should take place between children and a parent who has been a perpetrator of domestic violence and we would, therefore, recommend that if you require any advice in relation to such matters, then you contact emeryjohnson in order to obtain the same.