Evidence submitted by Refuge
FAMILY JUSTICE:
THE FAMILY
COURTS
GENERAL STATEMENT
1. It is well understood that separation
and divorce can have a negative affect on children, particularly
where conflict characterises the break up and in general Refuge
believes it is valuable for children to maintain contact with
both parents where it is safe to do so. The negative impact of
harsh and punitive parenting is also well understood as is the
harm that can be caused by witnessing domestic violence. It is
vital therefore that there is a balance between the child's right
to maintain contact with both parents following separation and
the duty of society to protect children from harm; a parents'
right to maintain contact with their child should not overshadow
either of these central aims.
2. The contentious issue of contact and
residence presents particular problems for legislators and policy
makers yet the importance of "getting it right" cannot
be more strongly emphasised, for to get it wrong can and indeed
does lead to fatal consequences. Legislative change in other jurisdictions
has led some to create a legal presumption of "safe contact"
together with mandatory risk assessment in an effort to protect
children from harm Yet even with these safeguards in place, protecting
children (and the non-abusing parent) during contact visits with
a father who has perpetrated domestic violence remains difficult,
though it is not impossible if stringent screening, effective
assessment and monitoring systems are in place.
3. The role of the family courts in ensuring
the protection of children (and the non-abusing parent) cannot
be overstated. All those working in the system should have a firm
grounding in domestic violence and its impact on victims. There
must be a clear understanding and acceptance that domestic violence,
whether experienced or witnessed, represents a serious risk both
now and in the future for any child and where this risk exists,
there must be a resolve to say "no" to contact, at least
in the short-term.
THE RISKS
— Domestic violence has overtaken
gestational diabetes and pre-eclampsia as a cause of foetal death.
— Attempts to leave a violent
partner, with children, is one of the most significant factors
associated with severe domestic violence and death.
— Research has shown that the
emotional and behavioural problems of children exposed to domestic
violence are associated with their relationship their father.
The more fear and anxiety, the greater the problems; the longer
children are away from a violent father, the greater the improvement
in adjustment.
THE REALITY
— Less than 1% of contact applications
were denied in 2002.
— In 35% of contact applications
there were concerns about the safety of a child or the residential
parent.
— 10 children were killed during
contact visits in the past two years.
— Around 75% of children on the
child protection register live in homes where there is domestic
violence.
4. In view of these concerns, Refuge's response
has focused upon the fourth of the select committees questions,
that is "whether people using family courts are getting the
service they deserve" and how the system, in its broadest
sense could be improved to better meet the needs of domestic violence
victims. And with this in mind, Refuge recommends.
SUMMARY OF
RECOMMENDATIONS
1. A centrally driven and appropriately
funded national strategy on domestic violence. This would ensure
that domestic violence victims across the country received the
same high quality service both within and outside the court system.
It would also ensure a consistent and appropriate response to
perpetrators.
2. A legal definition of domestic violence.
3. Appropriate domestic violence training
for all professionals and mandatory training for professionals
working in and for the courts.
4. Legislation in favour of a presumption
of safe contact at the earliest opportunity.
5. Appropriate policies and procedures that
prioritise and ensure safety for children and non-abusing parents
with regard to contact and residence including:
— thorough and on-going screening
for domestic violence prior to and during the process of contact;
— that family courts always accept
evidence "on the balance of probabilities" when investigating
allegations of domestic violence or abuse to a child;
— a mandatory risk assessment
in cases where domestic violence is a known or suspected factor;
— prior attendance at a group/individual
therapy for perpetrators of domestic violence (focusing on the
effects of domestic violence/abuse on children) should be a precondition
of contact agreements in all high-risk cases;
— the wishes and feelings of children
should be ascertained in relation to decisions which concern them;
— an effective, comprehensive
assessment of the impacts of abuse where a child has been exposed
to domestic violence;
— the development of effective
assessment protocols for infants and pre-schoolers exposed to
domestic violence;
— a balance between minimising
delay in resolving matters concerning children and allowing sufficient
time to ensure that effective assessment and investigations are
undertaken;
— automatic separate representation
for children exposed to domestic violence in private law proceedings
and the use of domestic violence experts and other specialists
to assist the court;
— assessment of and protection
for the non-abusing parent;
— clear protocols to ensure contact
is safe;
— the development of protocols
to ensure consistency between orders and appropriate communication
across jurisdictions, placing safety for victims at the centre
of decision making;
— the premise that orders for
protection should over-ride orders permitting unsafe contact;
— clear policies regarding confidentiality
and disclosure of information about domestic violence victims;
and
— routine exemptions from mediation,
in-court conciliation, family resolution projects and enforcement
of orders in circumstances where domestic violence or child abuse
is a risk.
Refuge
December 2004
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