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Removing a suspected child abuser from the family home 07.06.06

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Under Children Act guidance [Volume 1, paragraph 4.31], social workers are encouraged to remove the abuser rather than the child wherever possible. This guidance is soon to be updated in respect of removing the abuser but was not available at the time of writing. 

 


 

 The principle will remain the same as removal of the abuser is increasingly being acknowledged as the most effective way to reduce risk. Under s.52 of, and Schedule 6 to, the Family Law Act 1996, an amendment has been made to s. 38 and s.44 of the Children Act 1989.  The courts now have powers to exclude someone from the home who is suspected of abusing a child within the home. Where an emergency protection order or interim care order has been applied for, or is in place, local authorities can now apply for an order to:

  • remove a suspected abuser from the family home where the child lives
    · prevent the relevant  person from entering the property
  • exclude that person from an area around of the family home

An order can only be granted alongside an interim care order or emergency protection order in respect of the child if the following conditions are satisfied:
 
(a) that there is reasonable cause to believe that if a person (“the relevant person”) is excluded from a dwelling-house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, and
 
(b) another person living in the dwelling-house (whether a parent of the child or some other person)(i)  is able and willing to give the child the care which it would be reasonable to expect a parent to give him, and (ii)  consents to the inclusion of the exclusion requirement. [Children Act s 38A (2)]
 
There are several points to note about an exclusion requirement attached to an interim care order or an emergency protection order:

  • It may last for a shorter period than the interim care order or emergency protection order.  
  • It may be granted ex parte (i.e. without notice  - without all parties being present at the hearing or notified in advance).
  • It may have a power of arrest attached (although this can be for a shorter period than the order).
  • It can only be included within an interim order (by the time the court considers making a final care order a proposed carer, usually the woman, will be expected to have excluded the abuser either by her own legal remedies or through the intervention of criminal justice agencies).
  • It will cease to have effect if the child is subsequently removed from the house by the local authority for a period of more than 24 hours.
  • The local authority must notify all relevant parties including the person who is excluded and the carer who consented when an exclusion requirement ceases to have effect.


The court also has the power to accept undertakings (a promise made to the court to do or not do something) instead of making an order if the case is appropriate. (See chapter 6 for a discussion of undertakings).
 
The Department of Health Circular (LAC (97) 15: Family Law ACT 1996 Family Homes and Domestic Violence) on Part IV of the Family Law Act 1996 (September, 1997) gives important  guidance on the implementation of this new power to support the protection of children and its implications for practice  in working with women at risk from domestic violence. Firstly, court rules require that:

  • the mother’s consent should be informed consent - it should not be elicited for reasons of convenience
  • the local authority should discuss the understanding of the carer giving consent to the exclusion order of the purpose and effect of the order, whether or not they are legally represented in the proceedings
  • if the person consents, the local authority should ensure that this is available in writing for the court, signed and dated
  • any application to renew or vary the order should be similarly agreed to by the person consenting to the exclusion requirement.


Secondly, the following points of guidance are also noted:

  • The welfare of the child has to be seen alongside the welfare of the child’s carer. Where domestic violence may be an important element in the family, the safety of (usually) the mother is also in the interests of the child’s welfare.
  • Local authority staff working in child protection should recognise the issues of conflict of interest in respect of responsibilities for the child, and the need to give objective information and advice before, say, the child’s mother agrees to consent to an exclusion requirement.
  • There may be a significant risk to the mother’s safety if there has been a history of domestic violence, which an exclusion requirement might exacerbate.
  • Where possible, the local authority should ensure that the mother receives advice and information from a person within the authority independent of the caseworker with primary responsibility for the child.
  • The mother could also be referred for specialist help to local Women’s Aid services or by calling 0808 2000 247 – Freephone 24-Hour National Domestic Violence Helpline, run in partnership between Women’s Aid and Refuge. 
  • The mother may need considerable support throughout the duration of the order if there are threats against her, or attempts to persuade her to agree that the order (and any attached power of arrest) be rescinded.


Under schedule 2, paragraph 5 of the Children Act 1989, social services can also offer financial assistance to enable the abuser to pay for alternative accommodation. This may be helpful in situations where there is domestic violence towards the proposed carer from the excluded abuser as it may decrease the risk to her.



The original of this article (which has been edited for the website) was written by Marianne Hester, Chris Pearson and Nicola Harwin with Hilary Abrahams, and is taken from a book entitled "Making an impact: Children and domestic violence" (Jessica Kingsley Publishers). View the full article.