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.
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