I am coming across more and more cases recently where there are issues of domestic abuse between the parents as well as a dispute between them about the arrangements for their children. These are the most difficult of cases – not legally, but from a human perspective.
For years we were always encouraged, (as solicitors dealing with matters concerning children) to adopt a less adversarial and more conciliatory approach, for the sake of the children. A relatively new practice direction (PD12J) actively involves a much more adversarial approach being adopted, which is at odds with our experience and requires a different approach, especially when our client may be expecting their solicitor to achieve a result that ‘protects’ their children from an abusive parent in future arrangements.
Children and Family Court Advisory and Support Service:
Cafcass has published articles, guidelines and toolkits on its website. One of these is entitled “Children’s Experiences of Coercive Control” and illustrates that children are impacted by the controlling circumstances in which they find themselves within their family. The psychological abuse that they experience means that they have a sense of continuous fear that is associated with coercive control and they begin to take steps to deal with this and find coping strategies.
It is thought that children who have experienced coercive control are likely to suffer from difficulties in making choices later in life and developing independence and competence. It is thought that their coping strategies involve carefully managing what they say and do to ensure that they are not easily seen or heard, which they believe will protect them from the abuser. Also, these children have been noted as having a sense of ‘hypervigilance’ by Cafcass Officers as a clear impact of coercive control in the home.
It is quite obvious that the effects of domestic abuse are more complex than we, as solicitors, are able to see on the surface, or, in the case of Cafcass Officers, what the children they interview are able to express. Cafcass Officers should use their toolkit for establishing whether there are control and coercion issues very early on in a case. In my experience it has been unusual for the Cafcass Officer to identify domestic abuse (of the non-physical kind) and I am not convinced that screening for domestic abuse, including coercive and controlling behaviour by a parent, is being effectively undertaken in many cases involving children. There are some experienced Cafcass officers and independent social workers who are very alive to this issue, but they are rare.
The problem once domestic abuse has been identified is then embarking on a fact-finding hearing which then puts the parents directly against each other, is very costly and usually causes a delay to the final outcome of the arrangements for the children. It is also clear that such a hearing is damaging to future relationships between the parents and the effect of perceived victory or defeat can affect the family dynamic for a long time after the hearing is finished.
Fact-finding hearings should not be embarked upon lightly and need to be very carefully dealt with by all the professionals involved. Normally, it is expected that the primary allegations of abuse will be contained in a Scott Schedule which sets out the allegations that the applicant parent makes and the response of the respondent parent to each separate allegation. The Judge will then set out what his or her findings are in respect of each incident. It is effectively a table which is often not child-focused and in the opinion of many experts, is outdated. The fundamental question is whether there is more protection for the victim of abuse now that PD12J has become more widely known and applied. The jury is still out on this.
I think until more of the professionals involved are made aware of these issues, there are lots of parents who will feel that our Family Courts are not equipped to deal properly with the complex issues facing their family.
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The above is accurate as at 3 March 2020. The information above may be subject to change during these ever-changing times.