18 June 2007
We received a petition asking:
”We the undersigned petition the Prime Minister to Make the safety of our children the main priortity when ordering contact within domestic abuse child contact case.”
Details of Petition:
”The law is failing our children when ordering unsafe contact with non resident parents in domestic abuse cases. Or contact that is recognised by professional experts as to be to the detrement of the welfare of the child if it is forced upon the resident parent to make the child available for contact with a non resident parent. The presumption should not be contact it should be child safety. Give mothers/fathers back their right to protect their children from harm. Stop asuming parents whom try to stop contact are all ‘hostile parents’ stop using threats of loss of residency of their children or face a prison sentence for not complying with orders that are unfair or a risk to our vunerable children.”
Read the Government’s response
Thank you for your e-petition to the Prime Minister about child contact cases and domestic violence.
This Government believes that children benefit from a continuing relationship with both parents following divorce or separation, where it is safe and in the child’s best interests. The Children Act 1989 supports this and, most importantly, it makes the welfare of the child concerned, rather than the rights of the parents, its paramount consideration. While most parents can and do resolve issues about contact and residence following separation or divorce, the court becomes involved if either parent applies for an order for residence or contact. The court has a wide discretion to take account of all the facts and circumstances of each individual case. Decisions are made after the judge has heard and considered all the evidence provided by both parties and any other witnesses, including experts. Both parties are entitled to have their views heard and have the opportunity to respond to any evidence put before the court.
The Children Act 1989 requires courts to have the welfare of the child as their paramount consideration when making any decision related to his or her upbringing (known as the ‘paramountcy principle’). There is no legal presumption of contact in this jurisdiction. The welfare checklist in the Children Act 1989 also specifies that courts must have regard to issues such as the physical, emotional and educational needs of the child and any harm which the child has suffered or is at risk of suffering. This checklist, and the paramountcy principle, will apply when the courts are considering using the new powers under the Children and Adoption Act 2006 to make a contact activity direction or condition.
The court may also request additional information, usually provided by the Children and Family Court Advisory and Support Service (CAFCASS)(new window), and potentially include police checks and consultation with Social Services. The court may also direct a local authority to investigate the child’s circumstances if it believes that the child may be at such risk of significant harm that a care or supervision order may be necessary. When it makes an order for contact, the court can rule that contact should be supervised or take place indirectly (for example, through telephone calls or letters) if there are fears about safety.
The Children and Adoption Act 2006, once commenced, will place a duty on CAFCASS officers to conduct a risk assessment whenever they are involved in private law family proceedings where an officer is given cause to suspect that the child is at risk of harm. The results of that risk assessment will be provided to the court, and will ensure it takes fully informed decisions.
It is worth noting that these measures will be additional to a number already in place. In 1999, the Advisory Board on Family Law’s Children Act Sub-Committee produced new guidelines about how the courts should deal with allegations of domestic violence in contact cases. The guidelines require the courts to consider at the earliest opportunity allegations of domestic violence and decide whether the nature and effect of the violence is such that it is likely that any order of the court for contact would be affected. They also require the courts to ensure that they are satisfied about the child and resident parent’s safety before, during and after contact.
The courts have introduced an additional form to the applicant’s pack (C1a) which aims to encourage all parties to a contact/residence case speak out about issues of domestic violence, harm and abuse and provide detailed information in support of any allegation. The information provided enables the courts to test, at a very early stage in proceedings, if the allegations are soundly based and a ‘finding of fact’ hearing is needed.