Making safe arrangements for children affected by domestic violence: public and private law 06.03.06
The original of this article (which has been edited for the website) was written by Nicola Harwin for a book entitled "Making an impact: Children and domestic violence" (Jessica Kingsley Publishers) by Marianne Hester, Chris Pearson and Nicola Harwin.
Topics you can access in this article:
Summary of the legislative framework
The Children Act 1989 and domestic violence
Part I of the Children Act 1989
The welfare checklist
Some problems with section 8 orders
Finding of fact hearings
Issues with contact applications in cases of domestic violence
Care and protection of children under Children Act 1989 Parts IV and V
Removing a suspected child abuser from the family home
Providing support for ‘children in need’: Section 17 of Children Act 1989
Every Child Matters and the Children Act 2004
- The Children Act 1989 redefined child care law and introduced new measures for working with children and families in both public and private family law. It was the first child care legislation to take into account the child's religious, ethnic, cultural, linguistic background. It embodied a new approach to working with and for children, underpinned by the principle that the child's welfare is paramount
- The Adoption and Children Act 2002 (section 120) extended the definition of “harm” as stated in the Children Act 1989, to include “impairment suffered from seeing or hearing the ill treatment of another” This came into effect in January 2005
- The Children Act 2004 provides a further legislative framework for the wider national programme, Every Child Matters, which is aimed at improving children's lives and transforming children’s services locally
- The Domestic Violence Crime and Victims’ Act 2004 created a new offence of causing or allowing the death of a child or vulnerable adult, whereby a person is guilty of such an offence if a child or vulnerable adult dies as a result of an unlawful act and the defendant either was or should have been aware of the risk and failed to take steps to protect them. This clause was introduced in March 2005.
The Children Act 1989 and domestic violence
The Children Act 1989 does not overtly acknowledge the context of domestic violence in which many children live. Despite the fact that the Act is accompanied by ten volumes of guidance, there was none on the issue of domestic violence, nor any recognition that domestic violence is a key factor in the break-up of many relationships. Until very recently, the concept of risk of violence to one parent from the other or from another family member, and the possible impact of this on the first parent’s ability to protect and care for children, was not identified as a factor requiring consideration.
The need to minimise the risk of violence during family proceedings was highlighted during the passage of the Family Law Act 1996, and was recognised as one of the key principles of Parts II and III of that Act (divorce, legal aid and mediation). The recognition by Parliament that this principle was needed was due, in part, to greater awareness following the Home Affairs Select Committee Inquiry into Domestic Violence in 1992 and to subsequent publicity of the extent and nature of domestic violence, as well as to growing concerns about the unfortunate effects of its absence within the Children Act 1989 itself. This was particularly evident in relation to section 8 orders, which are arrangements for children made in private law after relationship breakdown, and include decisions about where and with whom the children shall live (residence) and their contact with the other parent.
When a woman leaves home because of her partner's violence, she will usually take the children with her, and will probably wish to continue to care for them and make a home for them. Usually, this will also be in the children's own interests. The children and the absent parent may wish to see each other regularly, and sometimes this can be arranged without major problems. But in many cases, the mother will be reluctant for her children to see her abusive ex-partner because she is fearful for their safety or her own. These fears may, however, be ignored or minimised by professionals who believe - mistakenly - that, where there is no clear evidence of substantial risk to the child, contact with both parents is in his/her best interests (See Barron et al, 1992; Hester and Radford, 1996; Hester, Pearson and Radford, 1997; Saunders 2004).
This failure to recognise the risks of domestic violence to the safety of both the mother (who is usually the parent with care) and the child has sometimes been compounded by the apparent lack of hard evidence of previous or present violence to either. This itself results from a number of other problems, including: a lack of co-ordination of information and evidence across criminal justice and family proceedings; the absence, until very recently, within statutory responses of full recognition of impact of domestic violence on children living with it; court pressure to reach agreement over arrangements for children; inadequate legal representation, that leads to the full nature of the abuse being hidden or minimised; and the intrinsically ’private’ nature of the abusive behaviour itself.
While Parts I - V of the Children Act 1989 all contain implications for the welfare of children living with or witnessing domestic violence, there are a number of key sections that have specific relevance for individual and corporate strategies to improve protection and safety of women and children. The main features are set out below.
Part I of the Children Act 1989
Under this Act, proceedings can be heard in any court, concurrent with other proceedings, for example, alongside proceedings for injunctions under the Family Law Act 1996 (see Civil Law). The Act states at the outset (Part I, s.1(1)) that ‘the child’s welfare shall be the court’s paramount consideration’; this is known as the ‘paramountcy principle’. Part I of the Act also introduced two new central features: the ‘welfare checklist’, and the concept of ‘parental responsibility’. The Act and these principles were designed to put the child and the welfare of the child at the centre of all decisions.
The welfare checklist determines the criteria that should be taken into account when decisions are being made relating to the upbringing of a child.
‘Parental responsibility’ is defined in the Children Act 1989, s.3 (1) as:
all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
It is awarded according to birth status and residence arrangements: see below.
The ‘no order’ principle should also be taken into account: this states that the court should not make any order unless it is first convinced that it would be in the best interests of the child to do so.
The welfare checklist [Children Act 1989, s.1(3)]
The court has to take into consideration the following factors in every case involving a child's upbringing where the making, variation or discharge of any order is opposed by any party, and in every case where the child may be at risk of harm. This applies both to orders in family proceedings under section 8 and for applications by local authorities relating to care and supervision under Part IV.
a. The ascertainable wishes and feelings of the child concerned, (considered in the light of his age and understanding).
b. His physical, emotional and educational needs.
c. The likely effect on him of any change in his circumstances.
d. His age, sex, background and any characteristics of his which the court considers relevant.
e. Any harm which he has suffered or is at risk of suffering.
f. How capable his parents, and any other person in relation to whom the court considers the question to be relevant, are of meeting his needs.
g. The range of proceedings available to the court under this Act in the proceedings in question.
From the perspective of those experiencing domestic violence, the implementation of the welfare checklist can be problematic in practice. For example, there is no formal requirement on the court to consider the effects of the decisions made under the Children Act 1989 on the safety of an adult (usually the woman) who may be at risk.
‘Parental responsibility’ is defined in the Act as:
"all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." [Children Act 1989, s.3 (1)]
and is awarded according to birth status and residence arrangements.
- The natural mother automatically has parental responsibility, and keeps it, regardless of whether the child lives with her or not, until child reaches 16.
- The natural father has parental responsibility if he was married to the mother at the time of the child's birth, or if he marries her subsequently.
- The natural father also has parental responsibility if (after 1 December 2003) he registers the child’s birth jointly with the mother.
- If none of the above apply, the natural father may have parental responsibility if he and mother make a parental responsibility agreement; or if he applies to the court and the court grants permission.
- Other people – e.g. a step-father or step-mother or grandparent – can acquire parental responsibility if they adopt the child, obtain a residence order from the court, or are appointed as guardian if the child’s parents die.
- Anyone with a residence order in respect of a particular child has parental responsibility for as long as that residence order lasts; or, if they are a parent of the child, they keep it even after the order ends
- The local authority has parental responsibility when a care order is in force, but they share this with the natural parents.
Once parental responsibility has been given to a natural father (if he is not automatically entitled through marriage), he cannot have it removed from him even if the child does not live with him. The natural father has precedence over others in relation to guardianship of children after the death of the natural mother; however, if there is a residence order in force in someone else's name when the mother dies, that person also has parental responsibility as long as the residence order is in force.
Private law proceedings under Part II of the Children Act 1989: making safe arrangements for children after relationship breakdown
Under section 8 of the Children Act 1989, the court may make four types of orders within family proceedings in respect of the child’s welfare:
- Contact orders - requiring the person with whom a child lives, or is to live, to allow the child to visit, stay or have contact with the person named in the order.
- Residence orders - settling arrangements for and determining with whom the child is to live.
- Prohibited steps orders - prohibiting a person with parental responsibility from taking any steps contained in the order without the consent of the court.
- Specific issue orders - giving direction regarding a specific question in relation to any aspect of parental responsibility for a child.
The court may also, within its powers under section 10 of the Children Act 1989, make an order in any family proceedings where questions arise with respect to the welfare of the child (for example with proceedings under the Family Law Act 1996.)
Some problems with section 8 orders
A number of problems have been identified with respect to s.8 orders under the Children Act 1989 in cases where there is domestic violence. In particular, there is a lack of recognition within the Children Act in general, and within the welfare checklist in particular, of the risks and practical problems faced by women and children experiencing domestic violence in making safe arrangements after relationship breakdown. This has only recently been acknowledged.
Practitioners interpreting the 1989 Act have frequently assumed that, when parents do separate, the children will almost always benefit from continuing to have substantial and frequent contact with the non-resident parent (usually the father). These assumptions are often unrealistic: it has recently been identified by the Vice Chair of CAFCASS (Children and Family Court Advisory and Support Service - the body which looks after the welfare of children involved in family court proceedings) that almost 66% of their caseload of applications to the family courts involve domestic violence. We also know that almost 90% of domestic violence cases involve a male perpetrator and a female victim. Therefore, in cases where contact arrangements are being decided, it is more likely to be the father (who is most often seeking contact) who poses a risk to the children and the mother.
Studies also show that (depending which is cited) between 30-66% of children living with domestic violence are directly abused by the same violent man. Thus, where one parent is violent, (whether or not he has directly abused the children), practitioners may be dangerously mistaken if they assume the children will almost always benefit from continued contact with him.
However, if early screening by CAFCASS identifies domestic violence as a feature which could indicate a risk of abuse, the court should be alerted to the need for further enquiries.
In family proceedings where there are allegations of domestic violence, it is open to the court to make a finding of fact. The Lord Chancellor’s ‘Guidelines for Good Practice on Parental Contact in cases where there is domestic violence’ instruct courts to give early consideration to whether a finding of fact is appropriate. In most cases where a court feels it is appropriate, the finding of fact will occur early in proceedings, although a court can hold such a hearing at any point during the case. It is for the court to decide whether there should be a finding of fact hearing and for the court to give directions as to the practitioner’s role at that point.
In public and private law, the welfare of the child is not treated as paramount in a finding of fact hearing. This is because it is a factual hearing, so neither the welfare principle nor the welfare checklist applies. The test the court will apply to assess whether a finding of fact hearing is necessary when allegations are in dispute is ‘whether the nature and effect of the violence alleged is such as to make it likely that the order of the court will be affected if the allegations are proved’.
The court will take the following steps:
1. Consider what evidence will be required to enable the court to make findings of fact in relation to the allegations.
2. Ensure that appropriate directions under section 11(1) of the Children Act 1989 are given at an early stage in the application to enable the matters at issue to be heard as speedily as possible. These should include consideration of whether or not it would be appropriate for there to be an initial hearing for the purpose of enabling findings of fact to be made. Section 11 of the Children Act refers to the requirement for a timetable of actions specified by the court which deals with the question of whether a section 8 order is to be made.
3. Consider whether an order for interim contact pending the final hearing is in the interests of the child; and, in particular, that the safety of the child and the residential parent can be secured before, during, and after any such contact.
4. Direct a report from a Children and Family Reporter from CAFCASS on the question of contact, unless satisfied that it is not necessary to do so in order to safeguard the child's interests.
5. Subject to the seriousness of the allegations made and the difficulty of the case, consider whether or not the children in question need to be separately represented in the proceedings; if the case is proceeding in the Family Proceedings Court whether or not it should be transferred to the County court; and if in the County Court whether or not it should be transferred to the High Court for hearing. View guidelines.
From 31st October 2005, new rules were introduced to allow parties and other specified people to disclose certain information from family proceedings, heard in private and involving children, to other specified people, without needing the permission of the court, and without being in contempt of court.
In section 8 proceedings, a welfare report (ordered under section 7 of the Children Act 1989) is often of vital importance in the court’s decision-making in relation to the welfare of a child. CAFCASS (Children and Families Court Advisory Support Service) was established in 2001 to work with children and their families, and then advise the family courts on what it considers to be in the children's best interests.
In the past, professionals interpreted the need for joint decision making by those with parental responsibility to mean that joint meetings should be held with both parents, and they have sometimes persuaded or pressured women into attending (see Hester, Pearson and Radford, 1997). Meeting her abuser again face to face can be a frightening experience for the woman, and in many cases it has led to further threats and abuse against her and /or the children.
A report published in 2005 by Her Majesty’s Inspectorate of Court Administration (HMICA) provided a detailed account of the numerous ways in which CAFCASS failed to ensure the safety of domestic violence survivors and their children in private law family law proceedings, and was very critical of the approach of CAFCASS officers dealing with such cases.
In response to this report, CAFCASS introduced a new Domestic Violence Policy in 2005, later revised (August 2007) as their Domestic Violence Toolkit. CAFCASS has also developed a nationwide training programme which should lead to improved awareness and will hopefully improve this situation.
Those applying to the family courts for contact arrangements are now required to complete a ‘gateway’ application form which, amongst other questions, asks the applicant to identify whether domestic violence has been a factor in the breakdown of the relationship. This clearly states that where there is domestic violence, the preparation of such reports should not require women to attend joint interviews with their abusers.
The process of determining where the best interests of the children lie can be traumatic for many women. Where an application is made to the courts, in cases where there is no agreement between the parents on where a child should live, or how much contact (if any) the non-resident parent is to have, a CAFCASS officer will usually be appointed to prepare a report on the child's circumstances and make recommendations to the court. Under the Children Act 1989, decisions about a child's welfare are taken by those with parental responsibility unless the parents disagree and the family courts have become involved. In this case, the outcome will be determined by the courts, rather than by those with parental responsibility.
The Children Act 1989 does not require the courts to ensure that contact orders with violent parents are safe for children, and the intent of the Act has been distorted by the following case-law precedents:
- In Re O (Contact: Imposition of Conditions) the Appeal Court set a very strong presumption of contact by ruling that contact is "almost always in the child's interest".
- In Re H and R (Child Sexual Abuse) the House of Lords ruled that a higher standard of proof be required in family law cases involving more serious allegations than the simple balance of probabilities. This ruling makes it very hard to protect a child who has been physically or sexually abused, because it is notoriously difficult to prove child abuse, particularly child sexual abuse, in a court of law.
In a more recent case involving domestic violence and child contact in the Court of Appeal Re L, V, M, H (Contact: Domestic Violence)  the UK’s Official Solicitor commissioned Drs. Sturge and Glaser to prepare a report for the court giving a child and adolescent psychiatric opinion on, amongst other matters, the implications of domestic violence for contact. Their report was accepted in its entirety by the Court of Appeal. The court reached its judgment informed by their report and decided that:
- family courts need to have a heightened awareness of the existence of and consequences to children of exposure to domestic violence between their parents or carers
- allegations of domestic violence should be heard and adjudicated upon before a final Section 8 order is made
- proved domestic violence is not a bar to contact but an important factor in the exercise of discretion
- where violence is proved the court will look to the ability and willingness of the perpetrator to recognise and change his behaviour as an important factor.
This judgment is now legally binding on all subsequent decisions in UK Family Courts, unless it is at any time overruled by the UK Court of Appeal, the UK House of Lords or the relevant European Court.
In summary, therefore, and despite the above judgment, the combination of the Children Act 1989’s lack of focus on domestic violence-related issues and insufficient awareness among many involved in operating within its tenets has produced many situations in which children and women have been left at continued risk of violence and abuse.
In Australia and New Zealand, growing awareness of these issues in recent years, highlighted by some particularly tragic cases, has resulted in changes to the equivalent legislation. In Australia, the Family Law Reform Act 1995 specifies that, in determining the best interests of the children (when for example residence or contact is disputed), the court must be aware of the need to protect them from physical or psychological harm, and must specifically look at all the issues of family violence.
The New Zealand legislation goes further in stating that when a court is deciding custody or access, and is satisfied that a party to the marriage has used violence against a child or another party in the proceedings, neither custody nor unsupervised access should be granted until the court is satisfied that the children will be safe; and a list of criteria for assessing ‘safety’ is appended. That is, rather than the focus being on the mother’s ‘implacable hostility’ to contact (as in this country) the onus is on the abuser to convince the judge that he can be trusted with the children (Kaye, 1996).
The care and protection of children under the Children Act 1989 Parts IV and V
The 1989 Act also introduced a number of new measures in relation to local authority (and others’) powers and duties under public law:
- Under s.47 of the Children Act 1989, local authorities have a duty to enquire into the welfare of any child suffering or likely to suffer ‘significant harm’, and to decide whether they should take action to safeguard the child’s welfare
- An emergency protection order may be made under s.44, lasting up to 8 days
- Local authorities (and the NSPCC) may under s.31, apply to the court for a care or supervision order, which may initially be granted on an interim basis. The applicant must be satisfied that the child is suffering or is likely to suffer significant harm because of a lack of reasonable parental care or because he is beyond parental control
- Under s.20, local authorities must provide accommodation for children in need where the child is lost, has no parent, or where parents are prevented (temporarily or permanently) from providing suitable accommodation or care
- Under s.46, the police (through police protection orders) also have powers to remove children at risk of significant harm, or take steps to ensure that they are not removed from a safe place where they are being accommodated.
Removing a suspected child abuser from the family home
Under the revised Children Act Guidance and Regulations, social workers are encouraged to remove the abuser rather than the child wherever possible: paragraph 4.28 of Volume 1 of this Guidance states that “the local authority should explore the possibility of providing services to and/or accommodation for the alleged abuser as an alternative to the removal of the child”.
The 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.
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 – the 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.
Providing support for ‘children in need’: Section 17 of the Children Act 1989
Following the publication of ‘Child Protection: Messages from Research’ (Department of Health 1995), and more recently the Every Child Matters (2003) national programme, local authorities and other agencies have been encouraged to place child protection work within the context of wider services for children in need. This was initially introduced to redress the concern that children were being routed inappropriately into the child protection system as a means of gaining access to services. The Government is aware that enquiries into suspicions of child abuse can have traumatic effects on children and families and therefore it is important that professionals work in partnership with parents and their children, whilst at the same time ensuring the child’s welfare is safeguarded. This ‘refocusing’ by local authorities and others has been characterised by a shift from emphasising Part IV of the Children Act 1989 (in particular s. 47 investigations or enquiries) toward Part III of the Act (in particular providing services for children in need under s.17). The Every Child Matters agenda (2004) has taken this shift further to restructure local children’s services with the aim of improving outcomes for children at risk of social exclusion. See below and http://www.everychildmatters.gov.uk/
Under s.17.1(a) of the Children Act 1989, local authorities have a duty to ‘safeguard and promote the welfare of children within their area who are in need’. Local authorities can provide a range of services for children who are ‘in need’. Such services are intended to provide support and help to families, including families of children with disabilities and other special needs.
Financial assistance under s.17 exists to promote the welfare of ‘children in need’, and can be applied to address the needs of children living with or leaving domestic violence, in the following ways:
- s.17 (1) (b) to promote children’s upbringing in own families, provided that this is consistent with the child’s welfare.
There are a number of ways that social workers can give direct support to abused women to enable them to support their children’s welfare, for example, help and support in getting re-housed in safe accommodation.
- s.17(5) (a) to facilitate the provision of services to children through voluntary organisations.
Financial support for Women’s Aid work with children living in refuges, and for children’s resettlement programmes may be provided under this section.
- s. 17(6) for giving assistance in kind, and, in exceptional circumstances, cash payments to help children in need.
These can be made to help women and their children leave abusive situations or survive within them. Such assistance might include:
- cash for new clothes for children;
- cash for travel to get away from a violent man;
- assistance with fitting new locks, getting a telephone or alarm system;
- transport to a refuge or other safe emergency accommodation.
Amendments which came into effect under s. 116 of the Adoption and Children Act 2002, and which affect the implementation of section 17 of the Children Act 1989, state that children and families in need can be assisted by local authorities in respect of their accommodation. Local Authority Circular (2003)13: Guidance on accommodating children in need and their families details these changes.
Assistance might also be given to help a family where children are in need because of immigration rules that mean their abused mother has ‘no recourse to public funds’.
Every Child Matters and the Children Act 2004
The Children Act 2004 provides the legal underpinning for Every Child Matters: Change for Children. A series of documents have been published which provide guidance under the Act, to support local authorities and their partners in implementing new statutory duties. Further information is available on the Every Child Matters website.
New multi-agency guidance on ‘Working Together to Safeguard Children’ published in April 2006 supports these developments.
This national programme takes this approach a stage further to introduce a new long-term approach to promoting and safeguarding the well-being of children and young people from birth to age 19. The Government's aim is for every child, whatever their background or their circumstances, to have the support they need to:
- be healthy
- stay safe
- enjoy and achieve
- make a positive contribution
- achieve economic well-being.
Over the next few years, every local authority will be working with partner agencies, through Children's Trusts (developed between 2006-2008 in all areas), to find out what works best for children and young people in its area and act on it. Key developments include:
- The appointment, in March 2005, of the first Children's Commissioner for England, to give children and young people a voice in government and in public life.
- The introduction of a Common Assessment Framework from April 2006 (to be fully embedded by 2008), to be used by services working with children with a view to improving inter-agency working and identifying any additional needs for the child and any additional services available to meet their needs.
- A duty on local authorities to establish Local Safeguarding Children Boards by April 2006, which will build on and replace the local Area Child Protection Committees (ACPCs) in order to improve measures for safeguarding children.
- Developing and publishing Children and Young People’s Plans (by April 2006) to set out how local areas will provide services for all children and young people to meet the aims of Every Child Matters.
Domestic Violence Crime and Victims Act 2004: Death of a child
This Act created a new offence of causing or allowing the death of a child or vulnerable adult: a person is guilty of such an offence if a child or vulnerable adult dies as a result of an unlawful act, and the defendant either was or should have been aware of the risk and failed to take steps to protect them. All members of the household (subject to age and mental capacity) will be liable for the offence (which has a maximum penalty of 14 years) where:
- the death occurred as a result of unlawful conduct in anticipated circumstances
- a member of the household caused the death; and
- the defendant was or should have been aware that the victim was at risk but either caused the death or did not take reasonable steps to prevent it. (It is not necessary to show who caused the death and who failed to prevent it).
The victim in this new offence must have been at risk of serious physical harm, demonstrated by a history of violence towards them or another person in the household. Only those aged over 16 may be guilty of this offence, unless they are the parent of the victim. This could potentially cause problems in cases where one parent – usually the mother – is intimidated or forced into keeping silent, and may therefore be unable to protect the child.
- The Children Act 1989 redefined child care law and introduced new measures for working with children and families in both public and private family law. It does not, however, contain guidance on the implications for the welfare of children living with or witnessing domestic violence, nor on ensuring the safety of adults who may be at risk.
- Working Together to Safeguard Children (revised version published in April 2006) provides more detail for practitioners when dealing with children who have been exposed to domestic violence
- Part I of the Act introduced two new central features: the welfare checklist and the concept of parental responsibility. The lack of recognition within the Children Act 1989 in general, and within the welfare checklist in particular, of the risks and practical problems faced by women and children experiencing domestic violence in making safe arrangements after relationship breakdown has only recently been acknowledged.
- Section 120 of the Adoption and Children Act 2002 added to the original definition of ‘harm’ so that it now includes “impairment suffered from seeing or hearing the ill-treatment of another”.
- Under s.8 of the Children Act 1989 the court may make four types of orders within family proceedings in respect of the child’s welfare: contact orders, residence orders, prohibited steps orders, specific issue orders.
- Welfare reports are often of vital importance in the court’s decision-making in relation to the welfare of a child. Where there is domestic violence, the preparation of such reports should not require women to attend joint interviews with their abusers. The Children and Family Court Advisory and Support Service (CAFCASS) was set up as a national agency in 2001 to replace the family court welfare service. Their Domestic Violence Policy (developed in 2005 and revised as the Domestic Violence Toolkit in 2007) should further improve practice.
- A number of problems have been identified with respect to s.8 orders under the Children Act 1989 in cases where there is domestic violence, in particular the impact of case law.
- Under s. 47 of the Children Act 1989, local authorities have a duty to enquire into the welfare of any child suffering or likely to suffer ‘significant harm’, and to decide whether they should take action to safeguard the child’s welfare.
- Under an amendment made to the Children Act 1989 by the Family Law Act 1996, 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. Guidance has been given by the Department of Health on the implementation of this new power to support the protection of children as well as women at risk from domestic violence.
- Under s.17.1(a) of the Children Act 1989, local authorities have a duty to ‘safeguard and promote the welfare of children within their area who are in need’, and can provide a range of services.
- The Children Act 2004 and Every Child Matters build on previous legislation to introduce a new long-term approach to promoting and safeguarding the well-being of children and young people from birth to age 19.
- The Every Child Matters agenda incorporated legislatively in the Children Act 2004 focused on improving outcomes for children at risk of social exclusion, and dictated a new local framework for local children’s services to promote integrated working between services, improved risk assessment and information sharing.
- More recently the Domestic Violence Crime and Victims Act 2004 has focused on adult survivors of domestic violence but created a new offence in respect of child deaths.
In summary, therefore, the combination of the Children Act 1989 and subsequent legislation and guidance lacks a focus on domestic violence-related issues. Insufficient awareness among many involved in operating within its tenets has produced many situations in which children and women have been left at continued risk of violence and abuse. Growing awareness of these problems has led to recent changes in policy and practice that may lead to improved responses.
References in this article
Barron, J., Harwin, N. and Singh,T.(1992) Women’s Aid Federation of England Written Evidence to House of Commons Home Affairs Committee Inquiry into Domestic Violence (Bristol: Women’s Aid Federation of England).
Department for Health (1995) Child Protection: Messages from Research. (London: HMSO).
Hester, M., Pearson, C. and Radford, L.(1997) Domestic Violence: A National Survey of Court Welfare and Voluntary Sector Mediation Practice. (Bristol: Policy Press).
Hester, M., Kelly, L. and Radford, J.(eds) (1996) Women, Violence and Male Power. (Buckingham: Open University Press).
Kaye, M. (1996) ‘Domestic violence, residence and contact.’ Child and Family Law Quarterly 8, 4, pp. 285–296.
Saunders, H.(2004) Twenty-Nine Child Homicides: Lessons Still to be Learnt on Domestic Violence and Child Protection. Bristol
Sturge, C and Glaser D (2000) 'Contact and Domestic Violence - The experts' court report' Family Law Journal, September pp. 615-628.
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).