When domestic abuse is a factor in family court proceedings, determining child arrangements becomes significantly more complex. Domestic abuse becomes a central consideration in safeguarding the welfare of the child.
Understanding Domestic Abuse in the Context of Family Law
Domestic abuse encompasses more than physical violence. It includes emotional, psychological, financial and sexual abuse, as well as coercive and controlling behaviour. Importantly, children do not need to be directly abused to suffer harm; witnessing or being exposed to abuse within the home can be equally damaging.
When determining child arrangements, the court’s primary concern is the welfare of the child, guided by the Welfare Checklist set out in Section 1(3) of the Children Act 1989. The presence of domestic abuse fundamentally changes how the courts approach these cases, often requiring additional safeguarding measures and detailed assessments.
How does the Court assess Domestic Abuse allegations?
When domestic abuse allegations are raised in family proceedings, the court must have regard to Practice Direction 12J. If the abuse is disputed, the court may decide that a fact-finding hearing is necessary.
As per Practice Direction 12J paragraph 16,
‘The court should determine as soon as possible whether it is necessary to conduct a Fact-Finding Hearing in relation to any disputed allegation of domestic abuse –
a)in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;
b)in order to provide a basis for an accurate assessment of risk;
c)before it can consider any final welfare-based order(s) in relation to child arrangements; or
d)before it considers the need for a domestic abuse intervention.’
However, not all allegations of domestic abuse automatically lead to a fact-finding hearing. The Court of Appeal has provided guidance as to when fact-finding hearings are required after allegations of domestic abuse have been raised. The case of K and K [2022] EWCA Civ 468 highlights that the court is not obliged to hold a fact-finding hearing in every case where domestic abuse is alleged. The case of K and K – which follows on from the seminal case of Re H-N (Children) (Domestic abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 – makes it clear that the court should only proceed with a fact-finding hearing if ‘the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the child’s welfare’ [para 8].
What is a Fact-Finding Hearing?
A fact-finding hearing allows the court to hear evidence from both parties and, if applicable, witnesses, to determine whether the allegations of domestic abuse are true or not. The court can make ‘findings’ against either party in relation to the allegations raised. Findings are the conclusion the court reaches after evaluating the evidence, both oral and written to determine what facts are true, if any.
Importantly, the standard of proof in family courts is the balance of probabilities, meaning the court decides whether it is more likely than not that the abuse occurred.
How Long will a Fact-Finding Hearing take?
The length of a fact-finding hearing depends on many things, including how many allegations there are; the volume of evidence; and the number of witnesses. Court backlog is an issue in many family courts, and fact-finding hearings are often not listed for several months after the first hearing. This can build in some delay to reaching a final child arrangements order.
What happens after the Fact-Finding Hearing?
Following the conclusion of the fact-finding hearing, the court will have a factual matrix upon which to proceed. Courts often direct Cafcass or the Local Authority to prepare a report under Section 7 Children Act 1989, commonly referred to as a ‘Section 7 report’. This report will consider the court’s findings and assess what arrangements are in the child’s best interests. The Section 7 report plays a pivotal role in shaping final child arrangements orders.
The Effect of Domestic Abuse Findings
If serious findings of domestic abuse are made, the Section 7 report may recommend that:
- there should be no contact between the perpetrator of domestic abuse and the child;
- contact should be indirect only, such as through letters/cards or phone calls; or
- contact should be supervised or supported, to minimise any risk of harm to the child.
The court will also consider any impact on the victim of domestic abuse when considering child arrangements. Each case is assessed on its individual facts, and the child’s welfare remains paramount throughout.
Conclusion
While maintaining a relationship with both parents is generally beneficial, it should never come at the cost of a child’s safety or emotional wellbeing. The family court treats allegations and findings of domestic abuse very seriously and will always prioritise the child’s welfare in any decision-making.
Summary
Domestic abuse can significantly limit or restrict a parent’s involvement in their child’s life. Where abuse is found, the court may:
- Limit contact (supervised or indirect only); and
- Prioritise protective measures for the child and non-abusive parent.
Author: Nakita Bell
Nakita can be instructed by emailing her clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
K and K [2022] EWCA Civ 468
Re H-N (Children) (Domestic abuse: Finding of Fact Hearings) [2021] EWCA Civ 448