Abusive father’s access to their children during divorce

There has until recently been a presumption that children have a right to have a relationship with both parents, and the presence of domestic abuse in the parents’ relationship has not been an automatic bar to this. This is not to say that the Courts do not take domestic abuse very seriously. It is a factor to be taken into consideration, but Courts have traditionally used supported contact centres and the involvement of Children’s Services as a way to deal with this. In essence to ensure that the parents do not come into contact with one another whilst still maintaining the relationship between father and child. However, it is widely acknowledged that children are affected by domestic abuse, both directly or indirectly, and that this can have a long term impact on their development. It should be noted that domestic abuse is not just violence, but includes verbal, emotional, psychological, financial and sexual abuse.

Senior Judges are now taking steps to end the automatic presumption that abusive fathers should have contact with their children, where evidence of domestic abuse could put the children or mother at risk. This is supported by the charity Women’s Aid and comes following an investigation which identified that 19 children have been killed in the last 10 years by their violent fathers after being given contact with them by judges in family proceedings.

Judges are calling for the following amendments to the Family Procedure Rules:-

• The presumption that there be “contact at all costs” to be scrapped;
• Further training for all Judges on domestic abuse;
• An end to unrepresented perpetrators cross-examining their victims in Court;
• An acknowledgement that perpetrators may use Court proceedings to continue their abuse;
• An understanding of the new offence of coercion (controlling or coercive behaviour in an intimate or family relationship);
• Consideration of arrangements for waiting, entering and exiting the Court to ensure that the victim does not come into contact with the perpetrator;

In some cases, where one parent alleges domestic abuse and this is not accepted by the other parent, the Court will list a Finding of Fact Hearing. In criminal proceedings, the offence must be proved “beyond a reasonable doubt”, but in family proceedings “it is on the balance of probabilities”. This means that the Judge has to decide if an event was more likely to have happened or not.

Many children do want to see a parent who has been violent or abusive to them or to their resident parent. In particular, the Court will want to consider the following:-

1. The degree of any abuse;
2. Whether the perpetrator admits their abusive behaviour;
3. Whether the perpetrator has done anything to address their behaviour, such as seeking professional help;
4. The effect on the other parent in caring for the children;
5. Whether the child heard, saw or was involved in the abuse, and the effect this has had on them.

Most importantly, the time a child spends with an absent parent should always be decided on an informed judgement of what is in the child’s best interests