Guidelines hit back at domestic violence

District Judge Christopher Tromans examines the possible repercussions of domestic violence on contactScenarioThe child's mother opposes any direct contact with the applicant father on the ground that father was violent towards her.

The mother's solicitor refers to guidelines issued by the Lord Chancellor.

What is he talking about?The guidelinesIn April 2000, the Children Act sub-committee of the Lord Chancellor's advisory board on family law reported to the Lord Chancellor on the issue of parental contact in domestic violence cases, recommending that guidelines included in the report should be brought into use by means of a practice direction.

The essence of the guidelines is that:l Allegations of domestic violence likely to affect the order to be made should be investigated promptly;l Interim contact, even before findings on the allegation have been made, should only be ordered if it is shown to be in the interests of the child and, in particular, if the safety of the child and the residential parent can be secured before, during and after contact; l Children and Family Court Advisory and Support Service (CAFCASS) officers must pay particular attention to whether the safety of both the child and the residential parent can be secured before, during and after contact;l At a final hearing an order for contact is to be made only if the safety criterion is satisfied.

In addition, where findings of violence have been made, the court should not assume that direct contact is in the interests of the child and should consider whether an on-going non-molestation order should be made.The Sturge and Glaser reportIn Re L (Contact: Domestic Violence) and other appeals [2000] 2 FLR 334 the Official Solicitor at the request of the Court of Appeal instructed two consultant child psychiatrists to prepare a joint report on contact and domestic violence ((2000) Fam Law 615).

On the key issue of direct contact, they concluded that there should be no automatic assumption that contact with a previously or currently violent parent was in the child's interests.

If anything, the assumption should be in the opposite direction.Questions of statusThe guidelines and the report represent positions which are some way removed from the concept that it is almost always in the interests of a child for there to be contact with the absent parent (see, for example, Re P (Contact: Supervision) [1996] 2 FLR 314).

Furthermore, they raise considerations which are outside the welfare check list in section 1(3) of the Children Act 1989.

However, the precise status of both the guidelines and the report is not straightforward.The guidelines were intended to be introduced by a practice direction.

No practice direction has yet been issued.

In her judgment in Re L the President, Dame Elizabeth Butler-Sloss, described both the guidelines and the report as 'extremely valuable information to assist in the difficult task faced by the family judge or family proceedings magistrates deciding whether to order contact in cases where domestic violence is proved.' The President has subsequently suggested that 'all judges and magistrates should read or re-read the guidance and take to heart all the points raised in it.' (Contact and Domestic Violence (2001) Fam Law 355).

But the Court of Appeal in Re L did not take a unanimous view as to the status of the report.

Lord Justice Waller made no specific reference to it and Lord Justice Thorpe expressly disagreed with its conclusion that there should be an automatic assumption against contact with the burden of proof on the parent seeking contact to show benefit to the child.

He was also doubtful as to whether any specific guidelines were required.The Re L approachIn dismissing four appeals by fathers who had been refused direct contact because of domestic violence, the Court of Appeal approached the issues in ways which differ from both the guidelines and the report:l The court must adjudicate on allegations of domestic violence where the allegations might have an effect on the outcome of the application;l However, there is no presumption that, where domestic violence is proved, the offending parent has to surmount a prima facie barrier of no contact;l Proven domestic violence is a factor to be taken into account in the delicate balancing exercise of the court's discretion in the application of the welfare principle and the welfare checklist; and,l On applications for interim contact, particular attention must be paid to the risk of harm to the child, whether physical or emotional, if contact were granted or refused.At present, this is the approach which should be followed.Further guidance In a guidance note approved by and issued on behalf of Dame Elizabeth Butler-Sloss on 13 December 2001, the practical application of the Re L approach is clarified.

These are the principal points made: The court must initially decide whether the alleged violence is relevant to contact and, if it may be relevant, the issue should be addressed at the earliest possible stage.

An early exchange of statements may be appropriate.

The court must decide whether a report from CAFCASS is required and what issues the report should address.

If the allegations are not of a serious nature, the fact that they have been made should not be a reason for delaying the report.

Regard should be had to the report in determining the issue of relevance.

The court should determine that an order for contact complies with the welfare principle, taking into account the potentially adverse effects that contact may have on a child who has been exposed to violence.

Human rightsSubject to the qualification in article 8(2) of the European Convention on Human Rights, parents and children have the right to respect for their private and family life under article 8(1).The Court of Appeal in Re L when dealing with the conflict between the rights and interests of a child and a parent, held that the interests of the child had to prevail, on the basis that interference with the rights of the parent was necessary in order to protect the rights and freedom of the child.

However, a refusal of contact where the allegations are denied, or where the allegations are found not to be proved, or where they are of a minor nature and it is unnecessary to refuse contact to protect the child from the risk of harm, could arguably be an unnecessary interference with the rights of the parent seeking contact under article 8(1).Practice pointsThe allegations must be particularised at, or preferably before, the first directions appointment.

The district judge may direct that the allegations and responses must be summarised in schedule form.

It will then be necessary for the district judge to form a view as to whether, if proved, the allegations are likely to affect the outcome.

If the allegations are not serious, the district judge may follow Re L and decide not to hold a preliminary hearing but direct CAFCASS to proceed with the preparation of a report.If the allegations are serious, the district judge may direct a preliminary hearing on the issue of violence.

It will be important to keep delay to a minimum.

Thus, the hearing should be within four weeks after the first appointment, with no more than one day being allowed.

The format is likely to be akin to a fast-track civil trial.

The district judge will wish to know at the first appointment whether there is any corroborative evidence available.

Non-professional evidence which is of little probative value is unlikely to be permitted.District Judge Tromans sits at Plymouth Combined Court Centre