Child Contact and Domestic Violence in the UK Courts

Child contact and domestic violence is a tricky question. Once you have left your abusive partner, there are often disagreements on where the children will reside, or how much - if any - contact or staying contact is to be allowed. In deciding such issues, the amount and severity of the domestic violence will be taken into account, but the whole process of having to go to court can be very traumatic in itself. This information relating to child contact and domestic violence will hopefully help to allay some of your fears and clarify the procedures.

Child Contact in Families surviving Domestic Abuse in the UK

When relationships break apart because of domestic abuse (also called “domestic violence”), families often have the difficult task of sorting out what happens to the children.

The law in England and Wales says that children have the right to safe, loving contact with their parents. The parents do not have the “right” to demand to see their children, and a violent parent may not have the right to see their child at all.

Children can be very badly affected by domestic violence, either by witnessing it, overhearing it, or having the parent being violent or abusive to them. It is a form of child abuse to be abusive to a partner in front of children or within hearing range of them, and it’s amazing what children do see and hear, even when parents are trying to be careful.

Keeping children safe from abusive behaviour is the top priority. No child should be forced to see a parent in a way that leaves them or their “resident parent” (the one who normally looks after them) in danger.

• What is a typical child contact pattern when families separate?
• Do children’s views matter?
• My partner was violent to me – but the children love them - can they see the children?
• My violent partner says they will get the kids if we separate
• I’ve suffered depression or anxiety – will it be used against me in court?
• How do I get child care right?
• How can child contact go wrong?
• "I was forced by my abusive partner/the emergency situation to leave my children behind - how can I get them back?"
• I am worried about the child contact arrangements – what can I do?
• I can’t afford a proper solicitor!
• What is likely to happen next?
• What sort of Court?
• How long might it take?
• How much will it cost?
• What can I do to prepare?
• What about safety on the day?
• Can I take the children?
• They’ve offered us Mediation – should I accept?
• They’ve offered my partner Anger Management training – is that good?
• What happens at court?
• We went to court and I’m still not getting the right contact for them!
• I’ve done everything right but my ex keeps taking me back to court!
• Useful Court Case

What is a typical child contact pattern when families separate?

Most families do manage to sort out a sensible child contact pattern. If it were an ordinary divorce/separation with no domestic violence involved, many parents choose together to let the children stay with one parent most of the time, but stay with the other parent every second weekend, one evening a week, and half the holidays, for example, (although many families choose different patterns).

Do children’s views matter?

The child’s views are important, and if they are old enough to say what they truly feel, this should be taken into account by people including the courts. Some partners will claim that the resident parent is poisoning the children’s minds against them for no reason, and this is occasionally done by either the man or the woman. No loving parent should choose to speak badly of the other parent in front of the children, no matter what. Private negative opinions of them should be kept away from the kids.

My partner was violent to me – but the children love them - can they see the children?

Many children do want to see a parent who has been violent or abusive to them or to their resident parent, and sometimes it is possible to make contact safe, or to ask the courts for “indirect contact” in which the other parent is only allowed phone calls or letters or photos at first, maybe building up to seeing their children when it is sure that this can be safe for the child and the resident parent.

My violent partner says they will get the kids if we separate

Many abusive partners try to blackmail their partner, saying, “if you leave, I’ll get the children”. This is not true. The law says that violent parents cannot dictate who gets their child. It is up to a court to decide, not the violent parent. Children have the right to be safe, and to have a life that is as normal as possible after separation. That usually means being with a safe parent they are used to spending the most time with. If one parent is happy to spend 95% of their time away from the kids before the separation, they should not be surprised that the court expects the children to live with the parent who has spent all that time with them.

I’ve suffered depression or anxiety – will it be used against me in court?

Many people who suffer domestic violence go on to have some mental health problems possibly including (for example) depression or anxiety or post-traumatic stress disorder. A well managed mental health condition is not normally a barrier to you being a loving parent, and a court or social services will not take the children away just because you’re taking tablets or seeing a counsellor. They will usually think that is very sensible, and a sign of a good parent. If anyone has any concerns, they would normally involve social services who cannot afford to just take kids away. After all, if they took kids away from everyone who’s ever been anxious or depressed, they’d have football-stadiums full of them across the whole of the country. They’ll try to support families wherever possible.

How do I get child care right?

A good parent who is looking after their children will ensure that the children are safe, well fed, well cared for, have appropriate toys, are shown right and wrong in safe and sensible ways, can see their friends and relatives, gets proper medical care if they need it, gets a proper education, be able to le them enjoy their cultural and religious needs safely, and talk to and see the other parent and their wider family if it is safe to do so. If your child does not see the other parent, can you arrange for them to see the other parent’s grandparents, uncles, aunts (if safe)? Court like to see children enjoying as much family contact as possible.

How can child contact go wrong?

Not all parents are safe and loving. Child contact may be (for example):

1. An opportunity for abusive partners to harass, follow, intimidate, blackmail or be violent to the resident parent.

2. An opportunity for one parent to deliberately try to turn the children against the other parent by lying to them about things that happened.

3. An opportunity for a parent to snatch the children and go to some other part of the country or even abroad.

4. An opportunity for that parent to harm the children, either emotionally or physically, or by neglect and isolation from friends and family, perhaps stopping them getting the essential food and exercise that every child needs, or keeping them in poverty, cold, thirsty, stopping them seeing a doctor when they need one, or having essential medicines.

There may also be problems with finance, with one parent refusing to pay child support and therefore leaving the child in poverty. The Child Support Agency or the Courts can, in theory, help the resident parent with this, but it is not always easy, fast or straightforward for either the resident parent or the other parent.

"I was forced by my abusive partner/the emergency situation to leave my children behind - how can I get them back? "

You will need to take legal advice on the situation as soon as you can. Women's Aid, Refuge and other groups dealing with domestic violence will also know the right contacts for support groups for people in your situation. It may well have to go to court for a judge to decide what's best for the children. For example, the judge may say that the children should stay put, and your partner should leave the house instead, or they may work with (for example) the police or social services teams so that they can transfer the children back to you if they are at risk from the other parent.

I am worried about the child contact arrangements – what can I do?

If you are worried about the safety of your child or yourself before, during or after child contact sessions, you need to get good advice from an expert, usually from a solicitor who is trained to deal with family law. There is a link on the internet which can help you find the nearest family law solicitor:

http://www.lawsociety.org.uk

Some are better than others. Many offer a free half hour of advice in which you can find out about them and see whether you feel comfortable dealing with that firm.

Many Women’s Aid groups offer free legal advice from solicitors. It is worth contacting your nearest group (see http://www.womensaid.org.uk/ which lists local groups) to find out what they offer.

You can sometimes get free legal advice from your local Citizens Advice Bureau for free, and they may be a good source of advice about all sorts of other issues like housing and benefits too. The internet link to find one is:

http://www.citizensadvice.org.uk/index/getadvice.htm#searchbox

I can’t afford a proper solicitor!

You may be able to get ‘legal aid’ – discounted or free legal help. A solicitor can check for you. Or, if your children are old enough or the court says so, they may be able to get a free solicitor for themselves. It may be cheaper in some cases to ask a Barrister instead of a solicitor. The barrister normally stands up in court to talk to the judge on behalf of your solicitor, but some will now work directly for you. If you have a really tricky or interesting case, some Barristers will work for free (it’s called “pro bono”) and again you may be able to ask your solicitor about this.

You can also choose to do your own case in court, but this is tricky unless you are quite an expert, or have asked the court if you can bring an adviser with you, (who is called a ‘McKenzie Friend’). This adviser cannot talk to the judge – they can only hand you notes in court. The judge will do their best to help you, though. If you are up against a top legal team, this may not be enough, and it may be better to pay a solicitor if you can manage to find a way to do this.

What is likely to happen next?

If you cannot agree safe and appropriate contact for your child, it is very likely that the other parent will want to go to court to ask for them to decide what happens, or you may decide to go to court to ask them to stop unsafe contact.

What sort of Court?

There are all sorts of courts. Most child contact cases are heard in the County Courts, also called “Civil Courts”, by a judge. If it’s criminal law, like police arresting a partner for violence, that’s normally heard in the Magistrate’s Court or the Crown Court. If people disagree with the court’s answer, they may be able to ask the judges in the High Court or the Court of Appeal or even the House of Lords. Again, a solicitor can tell you if this is possible or not.

How long might it take?

The courts are trying to work faster. A child contact case might be in court for several years, but they will (hopefully) try to come to a first set of sensible decisions in a matter of weeks. The rest of the time they may be reviewing things every year or six months to see if it is working.

How much will it cost?

That all depends how long it takes and how much your solicitor/barrister charges, plus the court’s own charges. It can be anything from £1,000 to £50,000 or more for very long, complicated cases, which is why it is worth asking about how to keep the costs down and making sure your solicitor keeps you informed about how much this is costing you. Many people think that child safety matters should be free for the parent who is escaping violence, but the law hasn’t changed enough to make this possible yet.

What can I do to prepare?

Read up as much as you can. Find out if your ex-partner has put in a Statement, and see if you can get a copy. Prepare a careful answer for your solicitor, and make sure they really understand the issues about safety. The case of “Re H” on 22^nd November 2005 in the Court of Appeal is very useful on the subject of child safety and contact. Make sure you and your solicitor has read it.

What about safety on the day?

If you are going to court about a child contact situation, you need to plan ahead if you can. This may not be possible if you are going in as an emergency, but it is often a good idea to ask your solicitor about safety at court. They may be able to offer you a separate safe entrance and exit, away from your partner. They may be able to offer a separate waiting room. They may even be able to offer you a video link or screens to separate you from the perpetrator. It’s worth asking. The Court Manager is often a good person to ask for about any of this, or you can ask to contact Victim Support, a charity who work in courts to help victims of violence. It might be worth trying to visit the court beforehand just so you can see where you will be.

Can I take the children?

It is best to arrange child care on the day of the court Hearing, as most courts are very badly thought-out for children, and you cannot take them into court with you.

They’ve offered us Mediation – should I accept?

No. Mediation is not safe for domestic violence cases. Most abusive partners use the sessions to intimidate their partner, and few survivors feel confident about speaking out in front of the perpetrators. Couples counselling isn’t usually any good either, for the same reason. If you are scared of being with your partner, do not agree to either of these.

They’ve offered my partner Anger Management training – is that good?

No. Anger management courses are for people who lose control with anyone and everyone. It can make domestic violence perpetrators worse, as it teaches them new ways to control and use anger against their partner. What domestic violence perpetrators need is a proper domestic violence perpetrator course, which works in parallel with support for you so that you know what’s happening and what’s being taught. See http://www.dvip.org/ for an example of this. There are few of these, though.

What happens at court?

If you can, dress in a sensible and business-like way, and ask your solicitor or the court Usher (the person who tells you to go into the court rooms) what to call the judges. In a Magistrates Court it is usually Sir or Madam. In other courts it may be Your Honour or Your Lordship/Ladyship.

When the Judge or Magistrates arrive, everyone stands up. Watch for what the court people do. Sit down when they do. There will be more standing up when they leave again.

Do not look at the person who was violent to you unless you are sure you can handle it. Look at the judge or your solicitor or anywhere you feel comfortable, even when answering questions.

Whatever happens, whatever really bizarre things your ex-partner or their solicitor may say, (and they certainly will!) do not yell out or swear or shout. It is called “contempt of court” and you will end up being removed from the court or maybe even being put in the cells, and giving a very bad impression to the judge. No matter how hard it is, you must not get angry in there. All you need to do is slowly shake your head. That’s what judges are trained to look for. It is so hard to hear things that aren’t true, and we all want to yell “that’s a lie!” but we have to wait until it’s our turn and then explain what really happened. Take a notebook and write down questions or things you want to say, though they probably won’t let you read out from that notebook when it’s your turn to give evidence. It’ll give you something to talk to your solicitor about during breaks though. Leave the court rather than yell out. Crying is OK if it gets too much for you. If you need to stop for a break because it’s getting too much, say so. If you need a question repeated, say so. Take your time to answer things. If you get something wrong, just say so and explain what you actually meant. The idea is to give the judge the truth, and none of us is perfect at remembering everything we want to say, even the expert witnesses.

We went to court and I’m still not getting the right contact for them!

It can be very saddening for a loving, safe parent if they have fought long and hard for contact with their children and nothing happens because the other parent refuses to do what the court says. It might be that a parent who has demanded to see the kids doesn’t bother to turn up to contact after all. It might be that a parent who has promised to let the children see their mum/dad doesn’t let them do so, for no good reason, or either parent messes about with timing or location until it’s impossible for the other one. Always take legal advice, and see if it can go back to court so the courts can reconsider what to do. They may be able to get your ex-partner to attend parenting courses, or find some other way to deal with the situation.

I’ve done everything right but my ex keeps taking me back to court!

Some perpetrators use courts to harass their partners, cost them money, and stress everyone out (including the children). If they are caught doing this, they can be stopped by courts. Your solicitor can tell the judge that they think your ex-partner is being a “vexatious litigant” – in other words, using court to spite you, not to care about the children, and if the court thinks you’re right, they can insist that your ex-partner only gets a court hearing if he/she can convince a judge that they actually need one.

Useful Court Case:

On 22^nd November 2005, after considerable concerns about child safety where there has been domestic violence, the Court of Appeal once again published their Guidelines on Contact and Domestic Violence so that all family courts understand the law better.  The link is:  http://www.hmcourts-service.gov.uk/judgmentsfiles/j3553/ali_guidelines_1105.htm

and I have summarised it here, in English rather than legalese!  It may help people to understand their rights and responsibilities for child contact when there has been domestic violence.  Remember, though, that you must get proper legal advice for yourself.

Return from Child Contact and Domestic Violence to Domestic Violence and Children.