Making arrangements for children after separation can be difficult, but the situation becomes much more complicated when one parent has experienced domestic abuse.

A parent may be worried about their child spending time alone with the other parent, or about having to remain in contact with an ex-partner whose behaviour has left them feeling frightened. The family court recognises that domestic abuse can have a serious effect on children, even when they have not been physically harmed themselves.

What counts as domestic abuse?

Domestic abuse can take many forms, and it is not always accompanied by physical violence, and a person may experience controlling or threatening behaviour without initially recognising it as abuse.

Physical abuse might involve one parent being assaulted or threatened with violence, and while emotional abuse can be less visible, repeated humiliation or intimidation can have a deep effect on a person’s confidence and sense of safety.

Coercive control can involve a pattern of behaviour designed to restrict another person’s freedom and independence. For example, one parent may monitor where the other goes or try to prevent them from seeing friends. After separation, that behaviour might continue through demands for constant updates about the children or threats to use court proceedings as a means of maintaining control.

Financial abuse can also affect a family after a relationship ends; for example, a parent might withhold money to create pressure, or use financial support for the children as a way of influencing the other parent’s decisions.

Does the abuse have to be directed at the child?

Domestic abuse does not have to be directed at a child for it to affect decisions about their care. A child who sees one parent being frightened or hurt is likely to be deeply affected by what they have witnessed. Equally, a child may know something is wrong even if the abuse happens behind a closed door. They might hear an argument, notice damage in the home or become anxious when they see a parent’s behaviour change.

Children can also be affected by the impact of abuse on the parent caring for them. Someone who has been subjected to sustained intimidation may struggle with everyday decisions because they are worried about provoking a reaction. The child may sense that anxiety and alter their own behaviour in an attempt to keep the peace.

A child who sees, hears or experiences the effects of domestic abuse and is related to either the person experiencing it or the person responsible is recognised as a victim in their own right. The court will look at what has happened, how the child has been affected and whether there is a risk of further harm.

How can domestic abuse affect child arrangements?

The effect on arrangements will depend on the circumstances of the family; in some cases, a parent may be able to spend time with their child safely if suitable safeguards are put in place. In others, the risks may be too serious for direct contact to take place.

The court will consider more than what happens during the time a child spends with a parent and will also look at whether the arrangements expose the other parent to further abuse, including at handovers or through communication about the child.

The court may also need to consider whether a parent understands the impact of their behaviour. A promise that the abuse will not happen again may be relevant, but the court will look at the wider evidence when assessing whether the risks have changed.

Can contact be stopped temporarily?

Where there is an immediate and genuine concern about a child’s safety, a parent may need to take steps to protect them, which could include pausing contact. However, the position requires particular care where a Child Arrangements Order is already in place.

An order remains in force unless it is changed or discharged by the court, so a parent who does not comply with it may face an application for enforcement, although the court will consider whether they had a reasonable excuse for not doing so.

If you feel you cannot safely follow an order, you should seek urgent legal advice and consider applying to the court for it to be varied or for urgent directions. The court can consider what should happen in the meantime and whether a different form of contact would be safe.

Where there is no court order, parents have more flexibility to change informal arrangements, but the other parent may apply to court if they disagree. In either situation, a decision to stop contact should be based on the child’s safety rather than being used as a response to an unrelated disagreement between the adults.

What is the role of Cafcass?

In most private law children cases, Cafcass carries out initial safeguarding checks with the police and local authority. A family court adviser will usually speak separately to each parent about any concerns and provide information to the court. These early checks can help identify risks, although they do not replace a full investigation of disputed allegations.

The court may also ask Cafcass to prepare a more detailed report, often called a section 7 report. Depending on the case, the adviser is likely to speak to the child and make recommendations about future arrangements.

The judge makes the final decision, and although Cafcass recommendations can assist the court, but they do not automatically determine the outcome.

When might a fact finding hearing be needed?

A fact-finding hearing may be needed when allegations of domestic abuse are disputed and the court needs to decide what happened before it can safely determine the arrangements for a child.

The judge will consider whether the alleged behaviour, if established, would be relevant to the decision about the child. The court will also consider whether it already has enough information to proceed and whether a separate hearing is necessary and proportionate to the issues to be determined.

At the hearing, the court considers the evidence and decides which allegations are proven. The standard of proof is the balance of probabilities, meaning that the judge must decide whether it is more likely than not that the alleged behaviour occurred.

Can contact be supervised or indirect?

Where direct contact is considered appropriate but there are concerns about safety, the court may decide that it should be supervised. This means that an agreed or approved person is present during contact to observe what happens and respond if necessary.

Supervised contact may take place at a contact centre, although the availability of suitable services and the cost will need to be considered. The identity of the supervisor matters; a relative who is willing to help will not necessarily have the training or independence needed to manage a serious safeguarding risk.

Supported contact is different and typically involves less intensive oversight. It may be suitable where a family needs help with practical arrangements, but there is no identified risk requiring supervision.

The court may instead consider indirect contact, such as letters or telephone calls. This can allow a child to maintain a connection with a parent where face-to-face contact is not currently safe or appropriate. Even indirect contact needs careful consideration if it could be used to frighten the child or pass messages to the other parent.

Can conditions be attached to contact?

The court can make detailed arrangements intended to reduce risk; for example, it may specify where handovers should take place or provide for another suitable adult to assist so that the parents do not have to meet.

The court can also consider whether an intervention or further assessment is needed before contact is arranged or changed. This may involve a domestic abuse intervention, although eligibility and suitability will need to be assessed. Completing such a programme does not automatically mean that contact will be safe; the court will need to consider what has changed and whether any risks remain.

If you would like advice on domestic abuse and child arrangements, please contact our team today. We can help you understand your options and work towards arrangements that protect your child and support their wellbeing.

View related pages: 

Child Arrangements Child Contact Disputes
Domestic Abuse & Child Arrangements Parental Responsibility Orders And Agreements
Parental Alienation & Family Law Child Residence & Living Arrangements
Supervised & Supported Child Contact Complex Child Arrangements Disputes
Varying & Enforcing Child Arrangements Orders Fact-Finding Hearings In Children Proceedings

 

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Children's Issues

The scenario below does not relate to any individual clients of ours but the facts and the outcomes relate to some similar experiences in our practice.

Scenario Analysis Example #1

The Scenario

Mr and Mrs H separated. Mr H moved a few streets away and their eldest boy (now 15) lived with him. The younger children (14 and 12) stayed with Mrs H but the children live near each other and attend the same school.

Mrs H remarried and wishes to move to her new husband's city. Mr H sought advice about residence of the other children. He told us the middle child wanted to stay at school with his friends.

Our Solution

There is no set age at which a child can "choose". Nevertheless in reality it would be hard for Mrs H to resist the 14 year old's wishes. We needed to be careful not to stress the children. Rather than issuing proceedingswe arranged mediation for Mr and Mrs H to discuss the issues.

We advised Mr H to be flexible regarding contact. They reached an amicable arrangement for all children to live with Mr H for the school week and half weekends; and flexible school holiday arrangements.

Henry Brookman Discusses: Childrens Issues

If you have questions, contact us now, we can help you.

Children's Issues FAQs

Here is a selection of common questions relating to how children are involved in and affected by the divorce process. If you have unanswered questions, please contact us using the form above or you can contact us here.

Who Can Apply For Child Arrangements Orders?

Either parent can apply for orders relating to children as well as anyone with parental responsibility for the child. Sometimes grandparents or other relatives ask us if they can apply for child arrangements orders. The answer is that they can but they need to clear an extra hurdle first by seeking the permission of the court to do so.

Can I Use Mediation To Settle Disputes About The Children?

Yes. Most child issues are settled through negotiation and mediation. Court is often seen as a last resort. The mediation process is less formal than the court process and many of our clients report that they find mediation less stressful than the idea of going to court. Agreeing arrangements also gives you more of a sense of control over the issues. And it’s possible to formalise anything you agree with your ex spouse through mediation by making the agreement part of a Consent Order.  Once you get this approved by a family judge it’s legally binding.

Do we have to go to Court to decide what will happen to the children?

No, in almost all cases this is not required. Typically, the parents agree and often formalise the arrangement with the assistance of their lawyer. Where parents agree there is usually no need for any court order at all. If the parents cannot agree it would then become a matter for the Court to decide.

Can I insist that I see my child on special occasions, such as birthdays?

Normally the non-resident parent will be able to agree to see their child on significant dates and occasions. This can either be agreed informally with the other parent but if there is a dispute then the non-resident parent could apply for a court order.

Can I take my child to live abroad after divorce?

Permission will be required from the other parent or via a court order. Taking your child abroad for longer than a holiday would be considered abduction and the other parent could apply to the Child Abduction Unit to have your child brought home.

What happens to step children regarding custody and maintenance?

If the step-parent has taken the role of parent during the marriage and their ex-spouse (the biological parent) is not able to provide for the child, the step-parent may then be required to pay child maintenance.  Whilst it is typical for the child’s biological parent to gain residence, this is not always the case. It will depend on how capable the parents are to provide for the child what is in the child’s best interests.

Does the CMS (formerly the CSA) have to be involved in deciding child maintenance?

No. Whilst you may use a CMS calculation to aid with deciding a maintenance payment figure, it is then common for a private maintenance agreement to be set up by your lawyers. The CMS or court do not then need to be involved. If required, 12 months from the agreement, the CMS can become involved if either party wishes it.

Can I change my child’s surname after divorce?

Changing your child’s surname would require the other parent’s written consent or a court order.

Will the family home be retained for the child to live in?

If it is in the best interests of the child to remain in the family home with one of the parents it is possible that the court will order the home to be retained for a set length of time.

Can I move with my child to another part of the UK?

If you are the resident parent, you do not need the other parent’s permission to move with your child within the UK. However, the other parent could request a court order preventing you from moving whilst the situation is looked at in more detail. In making a decision as to the child’s living arrangements, the court will always look first at what is in the best interests of the child.

Can I take my child abroad on holiday?

If you have a court order setting out that the child is to live with you then you do not need ask permission from the other parent to go on holiday abroad for up to 28 days. If you do not have a court order, you will require the permission of the other parent. If the other parent will not give permission, you can apply for an order to go on holiday with the child.

Will my ex-spouse having a new partner affect what contact they can have with our child?

Typically no. However, if you have good reason to be concerned about your child’s welfare with regard to your ex’s new partner, you could apply for conditions to be imposed upon the existing contact arrangements.

Can our child choose which parent they live with?

If the child is old enough and has sufficient understanding to state a preference, the court will take into account their wishes. It is however unlikely that the child will simply be asked to choose because it is an unfair question and the reasons behind a child’s answer may be mixed. The court will however also consider wider factors, including each parent’s ability to meet the child’s needs, the child’s safety and how the new change in circumstances may affect the child.

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About The Team

We are a specialist divorce and international divorce family law team, advising clients in the United Kingdom (specifically England and Wales) and throughout the world. We have a very people–orientated approach to working with clients. Henry Brookman has practised law for over 45 years, and our team has a wide range of skills and expertise. We are recommended by the Legal 500 and have been awarded the Law Society’s quality mark, Lexcel.

Partner

Philip Morton

Recommended by The Legal 500, Philip is an expert in all areas of family law, including domestic and international financial disputes, fraud and commercial dispute resolution.

Partner

Henry Brookman

With over 45 years' experience, Henry Brookman is the senior member of the team. He is described by The Legal 500 as ‘shrewd, savvy, sagacious and highly experienced’.

Partner

Natasha Slabas

Expert in all areas of family law, often involving cases that have an international element, including work in relation to financial settlements following divorce.

Partner

Mark Rennie

Mark is the Group Head of the Horsham Family Law team. He specialises in all areas of matrimonial law, including complex divorce and financial disputes, and is recommended by The Legal 500.

Partner

Nigel Winter

A highly experienced solicitor, Nigel has expertise in collaborative law, divorce, contested litigation, relationship agreements, and children matters. Nigel is recommended by The Legal 500.

Partner

Samantha Jago

Partner at our Guildford office and recommended by The Legal 500, Samantha has specialist expertise in divorce, children matters, complex international cases, and is a trained mediator.

Partner

Joanna Potbury

Family law specialist based in Brighton advising on divorce, cohabitation agreements, children, post-nuptial agreements, and domestic violence. Joanna is recommended by The Legal 500.

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Kevin Danagher

Kevin specialises exclusively in family law, advising on all aspects of relationship breakdown, divorce, same sex marriage, marital agreements, and international family cases.

Partner

Ella Welsby

Known for her sensitivity and discretion combined with significant expertise, Ella advises on all family issues including high-value and multi-jurisdiction divorce and complex financial and children matters.

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Gemma Garrett

Based in Horsham, Gemma is a specialist advising on all areas of family law including divorce and separation (often involving jurisdiction issues), complex financial matters, and children matters.

Partner

Alicia Cenizo

Alicia is a Partner in the family team and advises on all elements of family law, particularly private children work, including matters with an international element such as relocation.

Partner

Rachel Osgood

Rachel specialises in financial claims on divorce and separation with a particular emphasis on high value cases and those involving inheritances, family businesses and claims by adult children.

Partner

Nisha Tayal

With over 20 years of expertise in family law, Nisha specialises on all aspects of relationship breakdown and is trusted by clients for her discreet, tailored advice.

Family Director (filex)

Natalie Matthews Bunting

Natalie is a specialist in divorce and financial remedy, including high value cases involving multiple pensions, multiple properties and multiple businesses.

Senior Associate

Lauren Blythe

Lauren is a highly regarded specialist family law solicitor, based at our Guildford office. She advises on divorce, family finances, children matters, domestic abuse, cohabitee issues, and relationship agreements.

Senior Solicitor

Susan Hayes

Susan qualified as a solicitor in 1992 and is based at our Brighton office. She is a longstanding member of the Law Society Specialist Children Panel and Family Law Panel. Susan is also a trained Collaborative Lawyer.

Associate

Rachael Au

Rachael is a highly capable member of the family team in Brighton. She specialises in family law, advising on divorce, civil partnerships, financial matters, and children issues.

Associate

Alice Barrett

Alice advises and supports clients on a range of family law matters including divorce, separation, financial remedy, private children matters and emergency applications.

Associate

Amelia Groom

Amelia has experience across a full range of family matters, including divorce, complex disputes regarding finances that range from trusts through to cryptocurrencies, and arrangements for children.

Associate

Natalie Higham

Natalie is a Family Legal Executive who advises individuals on divorce, separation, financial remedies available to them on the breakdown of their relationship, and children matters.

Associate

Katie O'Kelly

Katie advises on a wide range of family law matters including co-habitation, divorce and separation, financial remedies, and private children law matters.

Solicitor

Sophie John

An experienced solicitor, Sophie advises on matters relating to divorce, financial separation in both marriages and cohabiting relationships and children arrangements.

Solicitor

Alex Robinson

Alex supports the family team on a variety of matrimonial and Children Act matters that are often complex and with an international element.

Paralegal

Michelle Davies

Part of the Family Law team, Michelle supports on a variety of cases involving divorce, finances, children matters and day to day enquiries.

Paralegal

Isabelle Basson

Isabelle is responsible for following up day-to-day enquiries, administrative case management and generally supporting the Family team fee-earners.

Paralegal

Amelia Mahraj

Amelia is responsible, in her current role, for dealing with day-to day enquiries, administrative duties and supporting fee earners.

Paralegal

Aimee Atalay

Aimee provides dedicated support to the Family and Contentious Probate teams across a diverse range of matters. Aimee studied Law and Criminology at the University of Kent.

Paralegal

Izzy Minor

Izzy Minor is a Paralegal in the Family Team, supporting fee earners, and is a qualified Advanced CILEx Paralegal (MCILEx), holding a Diploma in Law and Practice.

Paralegal

Madison Bryant-Pollins

Madison provides dedicated support to the Family and Contentious Probate teams, including case management and the provision of clear, empathetic assistance to clients.

Secretary

Victoria Delatouche

Victoria is a highly experienced Legal Secretary and a long-standing member of the team. She provides secretarial support for the office.

Secretary

Michelle Louison

Michelle provides secretarial support to Henry Brookman. A very experienced family law secretary, Michelle has worked in law for over 12 years.

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