Annex 3
THE CASC GUIDELINES
PROPOSED GUIDELINES
FOR GOOD
PRACTICE
1. In every case in which
domestic violence is put forward as a reason for refusing or limiting
contact the court should consider the allegations made at the
earliest opportunity (and any answer to them) and decide whether
the nature and effect of the violence alleged by the complainant
(or admitted by the respondent) is such as to make it likely that
the order of the court for contact will be affected if the allegations
are proved.
2. Where the allegations are
disputed and the court forms the view that the nature and effect
of the violence alleged is such as to make it likely that the
order of the court will be affected if the allegations are proved
the court should:
(a) consider what evidence will be
required to enable the court to make findings of fact in relation
to the allegations;
(b) ensure that appropriate directions
are given at an early stage in the application under section 11(1)
of the Children Act 1989 to enable the matters in issue to be
heard as speedily as possible; including in a proper case consideration
of whether or not it would be appropriate for there to be an initial
hearing for the purpose of enabling findings of fact to be made;
(c) consider whether an order for
interim contact pending the final hearing is in the interests
of the child; and in particular that the safety of the child and
the residential parent can be secured before during and after
any such contact;
(d) direct a report from a court welfare
officer on the question of contact unless satisfied that it is
not necessary to do so in order to safeguard the child's interests;
and
(e) subject to the seriousness of
the allegations made and the difficulty of the case consider whether
or not the children in question need to be separately represented
in the proceedings; and, if the case is proceeding in the Family
Proceedings Court whether or not it should be transferred to the
County court; if in the County Court whether or not it should
be transferred to the High Court for hearing.
3. (a) Where the
court orders a welfare officer's report under section 7 of the
Children Act 1989 in a disputed application for contact in which
it considers domestic violence to be a relevant issue, the order
of the court should contain specific directions to the court welfare
officer to address the issue of domestic violence; to make an
assessment of the harm which the children have suffered or which
they are at risk of suffering if contact is ordered; and to make
particular efforts to ascertain the wishes and feelings of the
children concerned in the light of the allegations of violence
made.
(b) Where the court has made
findings of fact prior to the court welfare officer conducting
his or her investigation the court should ensure that either a
note of the court's judgement or of the findings of fact made
by the court is made available to the court welfare officer as
soon after the findings have been made as is practicable.
4. In deciding any question
of interim contact pending a full hearing the court should:
(a) specifically take into account
the matters set out in section 1(3) of the Children Act 1989 ("the
welfare check-list");
(b) give particular consideration
to the likely effect on the child of such contact and any risk
of harm, physical and/or psychological, which the child is likely
to suffer as a consequence of such contact being ordered;
(c) consider, if it decides such contact
is in the interests of the child, what directions are required
about how it is to be carried into effect and, in particular,
whether it should be supervised, and if so, by whom; and generally,
in so far as it can, ensure that any risk of harm to the child
is minimised and the safety of the child and residential parent
before during and after any such contact is secured; and
(d) consider whether the parent seeking
contact should seek advice and/or treatment as a precondition
to contact being ordered or as a means of assisting the court
in ascertaining the likely risk of harm to the child from that
person at the final hearing.
5. At the final hearing of
a contact application in which there are disputed allegations
of domestic violence:
(1) the court should, wherever practicable,
make findings of fact as to the nature and degree of the violence
which is established on the balance of probabilities and its effect
on the child and the parent with whom the child is living; and
(2) in deciding the issue of contact
the court should, in the light of the findings of fact which it
has made, apply the individual items in the welfare checklist
with reference to those findings; in particular, where relevant
findings of domestic violence have been made, the court should
in every case consider the harm which the child has suffered as
a consequence of that violence and the harm which the child is
at risk of suffering if an order for contact is made and only
make an order for contact it can be satisfied that the safety
of the residential parent and the child can be secured before
during and after contact.
6. In each case where a finding
of domestic violence is made, the court should consider the conduct
of both parents towards each other and towards the children; in
particular, the court should consider:
(a) the effect of the domestic violence
which has been established on the child and on the parent with
whom the child is living;
(b) whether or not the motivation
of the parent seeking contact is a desire to promote the best
interests of the child or as a means of continuing a process of
violence against or intimidation or harassment of the other parent;
(c) the likely behaviour of the parent
seeking contact during contact and its effect on the child or
children concerned;
(d) the capacity of the parent seeking
contact to appreciate the effect of past and future violence on
the other parent and the children concerned; and
(e) the attitude of the parent seeking
contact to past violent conduct by that parent; and in particular
whether that parent has the capacity to change and/or to behave
appropriately.
7. Where the court has made
findings of domestic violence but, having applied the welfare
checklist, nonetheless considers that direct contact is in the
best interests of the child or children concerned, the court should
consider (in addition to the matters set out in paragraphs 5 and
6 above) what directions are required to enable the order to be
carried into effect under section 11(7) of the Children Act 1989
and in particular should consider:
(a) whether or not contact should
be supervised, and if so, by whom;
(b) what conditions (for example by
way of seeking advice or treatment) should be complied with by
the party in whose favour the order for contact has been made;
(c) whether such contact should be
for a specified period or should contain provisions which are
to have effect for a specified period; and
(d) whether or not the operation of
the order needs to be reviewed, and if so the court should set
a date for the review and give directions to ensure that the court
at the review has full information about the operation of the
order.
8. The court should also take
steps to inform itself (alternatively direct the court welfare
officer or the parties to inform it) of the facilities available
locally to the court to assist parents who have been violent to
their partners and/or their children, and, where appropriate,
should impose as a condition of future contact that the violent
parent avail himself of those facilities.
9. In its judgment or reasons
the court should always explain how its findings on the issue
of domestic violence have influenced its decision on the issue
of contact; and in particular where the court has found domestic
violence proved but nonetheless makes an order for contact, the
court should always explain, whether by way of reference to the
welfare check-list or otherwise why it takes the view that contact
is in the best interests of the child.
Although not part of our formal guidelines,
we think that all courts hearing applications where domestic violence
is alleged should review their facilities at court and should
do their best to ensure that there are separate waiting areas
for the parties in such cases and that information about the services
of Victim Support and other supporting agencies is readily available.
|
