Making arrangements for children after separation: The role of the family courts
If you have left home because of your partner's violence, you will probably have taken the children with you, and will probably want to continue to care for them and make a home for them. When both your children and your ex-partner (the non-resident or 'absent' parent) wish to see each other, and this can be arranged safely and without major problems, this is likely to benefit everyone concerned. However, in many cases, your safety and that of your children may be a serious concern.
Many mothers have good reason to fear any ongoing contact between their children and their former partner, but they often find that family court professionals minimise or ignore these fears because they are convinced that ongoing contact with both parents is in the interest of the children in the long-term. Many mothers who have escaped from their abusive partners therefore find it extremely difficult to protect their children from ongoing abuse because they are required by the court to comply with an order for contact.
When a parent applies for contact with his (or her) children, under the Children Act 1989, this will almost always be granted. One fundamental principle of the legislation is that the child's welfare should be paramount - and in most cases, this is assumed to be upheld by maintaining his or her contact with both parents: in 2003, only 601 out of 67,184 contact applications (less than 1%) were refused. The courts fail, in many cases, to take domestic violence seriously, despite the introduction in April 2001 of Good Practice Guidelines recommending that the dangers are highlighted at an early stage in the proceedings, so that the safety of the child and the resident parent is secured before, during and after contact visits.
In three-quarters of cases when courts have ordered contact with an abusive parent the children suffered further abuse. Some children have even been ordered to have contact with a parent who has committed offences against children. In some cases, children have even been killed as a result of contact or residence arrangements. (See References and further reading
.) There are also many cases in which an abusing parent has used a contact visit to trace the mother's whereabouts, or to assault or otherwise abuse her further.
So, if you are fearful about your children having ongoing contact with your abuser, how can you try to ensure your child's safety?
If you have been told that your former partner is applying for contact with the children, it is very important for you to have a really good, sympathetic and experienced solicitor. Your local Women's Aid organisation may be able to recommend a solicitor, or you could contact Rights of Women which has a legal advice helpline, and produces helpful leaflets, including one on child contact. Telephone on 0207 251 6577 (advice line) and Textphone on 0207 490 2562. Email: firstname.lastname@example.org
. Website: www.rightsofwomen.org.uk
It is also important that when you receive the court forms, you respond to your partner's application for contact by ticking 'yes' to the question about domestic abuse. You should then receive a supplementary form on which you can give details of the abuse you have experienced, and can point out your fears for your and your children's safety, if contact goes ahead. The more evidence you can give, the better - particularly if incidents have been witnessed by others, or have been documented, for example by the police or in your healthcare records. If your abuser has made false allegations about you, you will need to challenge these, as well as providing evidence of his abuse.
If you make allegations of domestic violence which are likely to affect the outcome of the case, these should be considered before any decision about contact is made by the court. It is likely that an officer from the Children and Family Courts' Advisory and Support Service (CAFCASS) will be asked to prepare a welfare report, after talking, separately, both to you and to your ex-partner, and seeing the children (normally on their own). The purpose of this report is to advise the court on the children's best interests, and to make recommendations on whether or not there should be contact, and the extent and nature of contact.
If you are making very serious allegations against your former partner (for example, allegations of child sexual abuse) you need to consider what evidence you have: the more serious the allegations, the higher standard of proof that will be needed. Any independent evidence will be helpful (for example, if your child has said anything to someone other than yourself, or if there is any medical evidence). The court will also refer the case to Social Services, and a social worker will interview your child. (However, it is unlikely that in a single interview of this kind your child will feel able to disclose abuse.)
Sometimes the judge may decide that contact should, at least initially, be supervised; and sometimes he/she will order indirect contact only (that is, letters, cards or gifts but no face to face meetings). Contact may be arranged at a contact centre, where your ex-partner will be able to spend time with your children, and you will be able to hand them over to the staff without meeting him. Most contact centres are run by volunteers who provide 'supported' contact for several families simultaneously, but only a minority are able to provide supervision continuously. If yours is a 'high risk' case (that is, there is a serious risk of your children being abused or abducted while having contact with their father) your solicitor should ask for supervised contact, so that visits can be supervised individually.
If you do not comply with a contact order, you will be in contempt of court and may be threatened with sanctions, which can include fines, withdrawal of legal aid (if you have it), transfer of residence to your ex-partner, or even imprisonment.
If you are unhappy with the outcome of the court hearing, you can apply for an appeal - but your application may be refused. You can also apply to vary a contact order that has previously been made.
If your children are having contact with their father - whether this has been ordered by the court or you have made an informal arrangement - and you become aware that they are not happy with contact visits, then it may be helpful to arrange for them to attend play sessions or receive outreach support from your local refuge organisation; or you may be able to arrange for them to have some counselling. Young Minds
or Child and Adolescent Mental Health Services (CAMHS) may be able to help you, or you could contact your GP. Counselling would allow your children - if they wished - to talk to someone about what is making them unhappy, and would also provide a useful source of independent evidence if the contact order needs to be changed or contact ended altogether.
The family courts can also make an order specifying where and with whom the children should live. If your children are living with you or you took them with you when you left your partner, and you would like them to continue to live with you, then you may decide to apply for a 'residence order'. This may be particularly important if your ex-partner has what is called 'parental responsibility' for the children. Parental responsibility is automatic if you and your partner were married and both of you are the biological (or adoptive) parents of the children; or if you are unmarried, but registered the births of the children together; or he may have gained parental responsibility if he applied for it later. A parent who has parental responsibility is legally entitled to have the children with him or her; so if you are at all concerned that your ex-partner may take the children away or keep them after a contact visit, then it is advisable to have a residence order in your favour.
The courts can make interim orders while legal proceedings are continuing. They can also make an order 'by consent' if you and your ex-partner agree that the children should live with you.
The procedure for applying for a residence order is similar to that for contact, and often both applications will be considered at the same time. You could talk to your solicitor, or contact Rights of Women advice line on 0207 251 6577, or textphone on 0207 490 2562 if you would like further information.
If you are afraid your ex-partner may try to take the children away from you, then you should seek urgent advice from your solicitor, and, if the threat is imminent, call the police. If your ex-partner has taken the children away without your consent, or kept them following a contact visit, you may need to make an application to the court for an order requiring that they are returned to you. The court can also make a 'prohibited steps' order aimed at preventing their being taken away again.
If you are afraid that your children might be taken out of the UK, then you will need specialist advice. It is a criminal offence if a parent abducts a child to another country with a different jurisdiction. The Hague Convention can be used to get the children back to the UK.
The organisation Reunite provides an advice line on international child abduction: call 0116 2556 234 (available Monday to Friday 9:30am - 5pm. Out of office hours, their answerphone gives an emergency contact number.) Reunite also produces a 'Child Abduction Prevention Guide', which can be found on www.reunite.org
References and further reading
Aris, R., Harrison, C. and Humphreys, C. (2002) 'Safety and child contact' (London: LCD).
Barron et al., (1999) 'From Utility to Rights? The Presumption of Contact in Practice' International Journal of Law, Policy and the Family Vol. 13 (pp111-131).
Hester, M. and Radford, L. (1996) 'Domestic violence and child contact arrangements in Britain and Denmark' (Bristol: Policy Press).
Radford, L. Sayers, S. and AMICA, 1999: 'Unreasonable fears?' (Bristol: Women's Aid Federation of England).
Saunders, H. with Barron, J. (2004) 'Failure to protect?' (Bristol: Women's Aid).
Women's Aid has compiled a list of 29 children in 13 families who have been killed as a result of contact or residence arrangements in the last 10 years. Ten of these children have been killed since 2002. You can purchase '29 child homicides' from our Shop section
Rights of Women produces a 'Child Contact Handbook'. You can contact them at 52-54 Featherstone Street, London EC1Y 8RT. Office telephone for publications: 020 7251 6575/6. Legal advice line: 0207 251 6577. Website: www.rightsofwomen.org.uk