Operations of the Family Courts - Justice Committee Contents

Written evidence from the Women's Aid Federation of England (FC 53)

THE OPERATION OF THE FAMILY COURTS

EXECUTIVE SUMMARY

Women's Aid is the national domestic violence charity that co-ordinates and supports an England-wide network of over 370 local domestic and sexual violence organisations running over 900 refuge, advocacy and outreach services and providing direct support to over 300,000 women and children every year as well as online support and services. Women's Aid is responding to this inquiry from the perspective of these service users, and in the light of responses to our special survey of member services.

Women's Aid believes that all children have a right to contact with both parents and all family members as long as it is safe, but that the safety of the children and their non-abusing parents must be ensured. Decisions about contact should never be based on the assumption that all parents—whether or not they are violent—are good parents.

SUMMARY OF THE ISSUES

2.1  CAFCASS

Research and practice has shown that the vast majority of cases that CAFCASS deal with involve allegations of domestic violence. A range of research and inspection reports has also found that there are some examples of very good practice but also examples of extremely dangerous practice which highlight that there is an inconsistency and systematic failure to implement policies and practice relating to domestic violence.

Women's Aid regularly consults with our members about the effectiveness of CAFCASS and has found that there are still concerns about their effectiveness and also about their understanding of the dynamics of domestic violence. Women's Aid also has concerns about CAFCASS' professional bias and discrimination towards Women's Aid member organisations.

Women's Aid and the Inter-disciplinary Alliance for Children have concerns that CAFCASS' current operating priorities mean that there are unacceptable backlogs in cases as well as a lack of continuity of care due to delays.

2.2  Legal Aid

It is vital for survivors of domestic violence and their children to receive high-quality advice as quickly and easily as possible. However, feedback shows that it can be difficult to access legal aid because of a lack of new matter starts and a further difficulty for women in paid employment even before cuts in legal aid contracts. There are also concerns that victims of domestic violence can be re-victimised through the family courts especially where their abusive ex-partner has access to legal aid. Women's Aid believes that it is vital for victims of domestic violence to have access to legal aid which is consistent and which recognises the complex needs of women affected by domestic violence.

2.3  Mediation

Mediation is a very effective dispute resolution mechanism but it cannot work effectively in cases of domestic violence as there is an imbalance of power between the two parties and that in this instance mediation is potentially dangerous for victims of domestic violence; research and practice has borne this out. Women's Aid recommends that mediation should not be used in cases where domestic violence has occurred unless it is voluntary and that there are effective safeguards in place to protect women who have been abused.

2.4  Confidentiality and Openness in the Family Courts

Women's Aid believes that allowing media in the family courts could jeopardise the safety and wellbeing of children and young people and place them and their wider families, including children within the same family, at risk.

2.5  Effective protection for victims of domestic violence and their children

Women's Aid believes that all children have a right to contact with both parents and all family members as long as it is safe, but that the safety of the children and their non-abusing parents must be ensured.

To facilitate this, Women's Aid believes that in every case in the family courts, there should be a full risk assessment and management; that wholly independent advocacy should be provided for children in all cases, enabling their views to be fully taken into account; and that there is no assumption that all parents—whether or not they are violent—are good parents.

We also recommend that the family courts recognise the dynamics of domestic violence, including the fact that domestic violence does not start or end at separation and can often continue long after a couple have separated; and that contact may be used as a method of re-victimising survivors and their children.

There is a dangerous separation between the proceedings of three separate court systems: child protection cases under public law (where the focus is on the child, and the mother is encouraged - or even forced - to leave her partner to protect her children from the consequences of living with domestic violence; the criminal court, where the perpetrator is charged and may be convicted of assault, harassment or other abuse; and the family court system where the same abuser is seen as a "good enough father" to be given contact.[1] To avoid the "3 planets effect", where there are ongoing criminal or child protection proceedings, Women's Aid recommends these should be taken into account in assessing any risks involved in contact.

CONCLUSION

Women's Aid therefore recommends that:

—  effective protection of children and their non-abusing parent be the primary consideration of the family justice system;

—  there is no assumption that a violent parent is a good parent or that they have stopped being abusive just because they say that they have;

—  the family justice system recognises that domestic violence can often continue long after separation;

—  the views of children are fully taken into account, in line with international commitments.

1.  INTRODUCTION

1.1  Women's Aid Federation of England (Women's Aid)

1.1.1  Women's Aid is the national domestic violence charity that co-ordinates and supports an England-wide network of over 370 local domestic and sexual violence organisations running over 900 refuge, advocacy and outreach services. Keeping the voices of survivors at the heart of its work, Women's Aid campaigns for effective legal protection and services, works to prevent abuse through public awareness, education and training and provides vital 24 hour lifeline services through the 24 Hour National Domestic Violence Helpline (in partnership with Refuge), and through Women's Aid's online information and support services for adults www.womensaid.org.uk, and for children and young people, www.thehideout.org.uk.

1.1.2  Women's Aid welcomes this Inquiry into the Working of the Family Courts and the opportunity to provide written and oral evidence to the Justice Select Committee on behalf of our national network of local services, providing local refuge and outreach support to over 109,000 women and nearly 40,000 children seeking safety from domestic violence in 2008-09. Our forthcoming Annual Survey for 2009-10, which will be published in November 2010, will also give details of the numbers of male victims supported by our services. Nationally we receive over 149,000 calls for telephone support in 09-10 and over 70,000 people a month access our online support services. In 2009-10 there were almost 200,000 page views on Women's Aid's dedicated website for children and there are almost 3000 members of the messageboard.

1.1.3  International research shows consistently that one in four women are likely to experience domestic violence in their lifetime and in England and Wales alone, 3/4 million children are affected by domestic. Two women a week are killed by a current or former partner as a result of domestic abuse. Statistics related to child deaths linked to domestic abuse are not kept but evidence from both the USA and the UK suggests that there is a high correlation: for example, one study of 163 child homicides in 83 different local authority areas in the UK found that there was a background of domestic violence in 46% of these;[2] and an analysis of serious case reviews found that in two-thirds of families where there was child death or serious injury, there was a background of ongoing domestic violence.[3]

1.1.4  In 29 Child Homicides, Women's Aid compiled a list of 29 children (in 13 families)[4] who were killed as a result of contact or residence arrangements in England and Wales during the previous decade to 2004 (however, since there are no national statistics kept on this, the actual figure may be higher). Ten of these children were killed between 2002 and 2004. With regard to five of these families, contact was ordered by the court.[5] The publication of 29 Child Homicides raised the profile of child contact and the risks that unsafe child contact can pose to both the child and the non-abusing parent (usually the mother).

1.1.5  Women's Aid has a two-fold role within the family justice system. At a local level our network of over 500 services provides specialist advocacy and support to women and children, including those involved in family justice proceedings. At a national level we work right across the voluntary and statutory sector to provide specialist advocacy for all children and women affected by domestic violence in England. We work, at a national level, with a wide range of family lawyers, judges and professionals from justice to ensure that all children and women are safe in the family justice system. We also sit on a range of multidisciplinary groups including the Inter-Disciplinary Alliance for Children. Women's Aid consults our members by means of a telephone consultation on every Ofsted Inspection of CAFCASS and provides evidence to Ofsted as part of their reviews.

1.1.6  Women's Aid also provides specialist training on domestic violence for professionals within the family justice system. We have worked closely with Skills for Justice to develop their specialist National Occupational Standards (NOS) for Domestic and Sexual Violence and we also run a National Training Centre with Accredited Training for all professionals on domestic and sexual violence. We also work closely with our sister Federations in Northern Ireland, Scotland and Wales on issues relating to the family justice system.

1.1.7  To ensure that our response reflects not only previous evidence and research but the current perspective and evidence from our network of member services, we also carried out a recent survey of our members on some of the issues related to the Inquiry, which was conducted for the Family Justice Review and which informs our response to questions and is attached at Appendix 1. We have also included consultations held with our members over the period 2008-10 on the work of CAFCASS which is attached at Appendix 2.

2.  SUMMARY OF KEY ISSUES

2.1  CAFCASS

2.1.1  A 2002 NAPO survey on the work of CAFCASS found that, of 300 cases involved, 77% (230 cases) featured allegations of domestic violence.[6] In 2005, Her Majesty's Inspectorate of Court Administration (HMICA)[7] published a fairly damning report on the work of CAFCASS. The report, whilst stating that there was some excellent practice by CAFCASS, was highly critical of overall practice and made eleven main recommendations for change including providing further training for CAFCASS staff on domestic violence. The CAFCASS response to the report was to produce a Domestic Violence Toolkit[8] in 2005, which was updated in 2007. The Toolkit advises that even when contact is felt to be in the interests of the child, the safety and protection of the child and the abused parent must be paramount (CAFCASS, 2007:55).

2.1.2  Women's Aid consultation with our member services, through telephone consultations between 2008 and 2010, has also shown that in local areas, CAFCASS has mixed practice ranging from really excellent services for children to extremely poor and unsafe practice. Some of the highlights of this research can be found in Appendix 2.

2.1.3  However, recent inspections of CAFCASS by Ofsted including a follow-up inspection in the South East region in 2008 have still raised concerns about the role of CAFCASS in private law cases. The 2008 report[9] found key faults indicating that CAFCASS personnel still, in some cases, needed additional training on domestic violence and contact.

2.1.4  Women's Aid has serious concerns about the effectiveness of CAFCASS and is a member of the Inter-disciplinary Alliance for Children, and support the statement issued in July 2010. The main concerns flagged by the group are:

—  There are unacceptable backlogs of cases in public and private law proceedings, despite the commitment and best efforts of front line staff who have been working under great pressure for a considerable length of time.

—  CAFCASS' current operating priorities are now posing a serious threat to the statutory framework of children's rights and evidence-based health and welfare policies, painstakingly developed through research and clinical practice over some forty years. Two examples of this are the proposed amendment of s41 Children Act 1989—opposed by twenty two interdisciplinary organisations in 2009—and a recent legal note circulated by CAFCASS which purports to give it authority to make changes to the section 41 roles and responsibilities of the children's guardian.

—  From August 2009 CAFCASS has been on an emergency footing and has only been able to offer "a minimum safe standard" of service delivery. A gap has opened up between organisational definitions of what constitutes a "safe minimum" and the statutory duty to give paramount consideration to the best interests of the child. Practitioners are concerned that in complying with organisational directives they may potentially be in breach of both their statutory duties and their professional code of ethics.

—  The assumption that appears to underlie operational decision-making and resource allocation within CAFCASS is that what is best for CAFCASS as an organisation will also be best for children. This is debatable and currently not evidence-based.

—  CAFCASS has become increasingly bureaucratised and this is impeding the proper exercise of the professional discretion of its practitioners.

—  The framework of inspection applied by OFSTED does not appear to be fit for purpose.

2.1.5  Women's Aid also has concerns that some CAFCASS officers do not, as previously stated, have sufficient training on domestic violence to understand the power and control relationship that exists between the abusing and non-abusing parent. We also have evidence that our member services have experienced professional bias and discrimination from some CAFCASS officers—these CAFCASS officers do not recognise that Women's Aid Services are professional specialist services (required and assessed under the Government "Supporting People" Quality Assessment Framework. Our member services have also flagged the delay and backlog in cases which makes it difficult for continuity of care from CAFCASS officers.

2.2  Impact of proposed changes to legal aid

2.2.1  Access to legal aid, particularly family law advice, is vital to the victims and children supported specialist domestic violence services and that they support. A significant number of women who are supported by domestic violence services in the national network receive family law advice Feedback from the network of services shows that it can be difficult to access legal aid, even before cuts in legal aid contracts.

2.2.2  Women's Aid are very concerned that the planned tendering process for publicly funded legal services in family law will have a significant impact on women and children who have experienced domestic abuse and other forms of violence against women in England.

2.2.3  It is vital that victims of domestic violence and the domestic violence services that support victims are able to access high quality advice as quickly and easily as possible and that victims have a range of firms that they are able to choose from. Some services in Women's Aid's national network of specialist domestic and sexual violence services are already very concerned about the future of tendering and commissioning of legal aid services.

2.2.4  This potential lack of contracts, and so reduction of services, impacts on some of the most vulnerable victims many of whom have complex needs that include, not only domestic violence, but also mental health and substance misuse problems that also impact on their children. Women who have been abused are often vulnerable and extremely fearful of going to court for a wide range of reasons; the effects of domestic violence can have a long lasting impact on women and many women fear for their children's safety. Due to the complex needs of women in domestic violence services, sometimes arising directly from their experience of abuse, it is vital that when they seek advice this is provided without delay and that solicitors understand the complex nature of domestic abuse and are able to empathise with the victim. Due to the tendering process, if a firm is unable or unwilling to provide advice to their existing clients, it will have a significant impact on women going through the family courts who have experienced abuse and difficult for them to build trust and confidence in a new representative.

2.2.5  Women's Aid has evidence that abusive parents will often continue to apply for contact with their children as a way of re-victimising the abused parent, especially if the abusing parent has access to legal aid funding. Women's Aid recommends that the court be mindful of cases that have come before the court on numerous occasions and carry out an investigation as to whether the applications continue for malicious reasons. Women's Aid are also concerned about women who are fragile and vulnerable being cross-examined by their ex partners representing themselves as litigants in person. A literature review published in May 2010 underscored the gap—and need—for research and information on the experiences of parents who represent themselves in family court proceedings.[10]

2.2.6  Due to the nature of domestic abuse and the emergency nature of receiving advice and support, it is vital that there are enough firms providing advice to ensure that conflict of interest does not occur and victims have a choice in who they want to represent them. A 2005 HMICA report highlighted that "survivors of domestic violence do not receive sufficient appropriate help, including information, to enable them to engage fully in the legal process within the family courts."[11]

2.2.7  Feedback from services within the Women's Aid network shows that domestic violence victims have already had difficulty finding law practices that will take on legally-aided family law. HMICA in 2008 also highlighted that "family courts are seeing increasing numbers of service users representing themselves because they are unable to afford legal fees or gain financial assistance to obtain legal help."[12] Women's Aid are concerned that despite this trend, there has been little recent research into the impact of this on either individuals or the outcomes of cases in the family courts.

2.3  Mediation

2.3.1  The aim of alternative dispute resolution mechanisms is to reach an agreement between the two parties involved. They can be very effective in the family system but they cannot work where there is an imbalance of power between the two parties as there is in domestic violence and research has borne this out. In 2005 HMICA expressed concerns at the policy emphasis on seeking mediated agreements and also stated the same year in their CAFCASS evaluation that their "report finds an inherent danger arising from the current policy emphasis on seeking mediated agreements between parents in ever larger numbers of disputed family proceedings. We conclude that ensuring the safety of both children and adults receives insufficient consideration—this was a strong and consistent message from the women survivors of domestic violence who we consulted. We consider that arrangements for assessing the risks associated with allegations of domestic violence need markedly strengthening".[13] A 2008 Cabinet Office and Department for Children, Schools and Families (DCSF) report similarly found that even where domestic violence was not an issue, only 25% of couples found that mediation was the sole solution to their contact disputes.[14]

2.3.2  Unless the victim feels safe enough to explore mediation as an option, and there are strong safeguards are in place, Women's Aid believes that mediation in the context of domestic violence is not suitable for the following reasons:

—  There is a risk to the woman's safety (asking her to discuss the violence with the perpetrator present may lead to later reprisal).

—  For mediation to work successfully both parties should enjoy an equal balance of power; in a domestic violence situation this will never be possible as the perpetrator controls the victim. Where there is fear and a history of domestic abuse, there is not a level playing field.

—  It is unlikely to be successful, since the victim will feel unable to disclose her real feelings.

—  There is a low chance of reaching an outcome that is safe and fair

Women's Aid Recommends:

—  That mediation or other assisted dispute resolution (ADR) methods should not be used in situations where domestic violence has occurred and there are no appropriate safeguards in place (see below) as ADR methods imply that there is an equal balance of power between both parties, which does not exist in a relationship where there has been domestic violence.

—  That mediation should never be used in child contact cases where there are allegations or disclosures of domestic violence, as evidence shows this may jeopardise the safety of the child and the mother.

—  In cases where mediation is considered by the victim, strong safeguards must be in place: firstly it must be entirely voluntary; secondly, both parties must receive prior information and guidance on the process including the opportunity to disclose and the information that they do not have to reach agreement; thirdly there must also be the option to withdraw at any time without fear of any court sanctions, especially if there is a perception of increased risk and inability to negotiate fairly due to fear; and lastly mediators must have received specific domestic abuse training provided by qualified domestic abuse trainers.

2.4  Confidentiality and openness in family courts

2.4.1  In December 2008 the Ministry of Justice announced that they were changing the rules on media attendance in the family courts with the aim of "removing the inconsistency of access between the higher and lower courts". In April 2009, the President of the Family Division issued a Practice Direction[15] and Guidance on the opening up of the family courts. The Guidance was designed to "try to avoid, or at least to minimise, inconsistency by providing that decisions are made by the High Court (and Appellate Courts) as soon as possible as to the principled approach to be taken."[16] The Practice Direction came into effect on the 27 April and intended to provide guidance on the handling of applications to exclude media representatives from the whole or part of a hearing and the exercise of the court's discretion to exclude media representatives whether upon the court's own motion or any such application.

2.4.2  Research published in March by the Office of the Children's Commissioner into the views of children on transparency in the family court found almost all of the children and young people (79% in the public law sample, 91% in the private law group) were opposed to the decision to permit reporters into family court hearings. The report also found that the major reason for this was because the children and young people said that court hearings address issues that are "private". They concern events that are painful, embarrassing and humiliating for children and an overwhelming majority said this detail was not the business of newspapers or the general public.[17]

2.4.3  Women's Aid believes that allowing media presence in the family court could put the safety and wellbeing of children and young people at risk. We recommend that where there are child witnesses present that the media be excluded to safeguard the welfare of the child. We are firmly opposed to media presence in court and welcome the recent commitment by the Ministry of Justice to revisit the provisions enacted last year.

2.4.4  The Inter-disciplinary Alliance for Children has the following concerns about media in the family court which we as members fully support:

—  They risk causing further significant harm to children where very personal details of their lives are published in local and national press and on the Internet.

—  They put children in proceedings at risk but also other children in families.

—  For children subject to permanent placement outside their birth family, there is an increased risk to the future stability of their adoptive, foster or other permanent family.

—  For children subject to questions about immigration and asylum status, media exposure may increase risks of serious harm or threat to the life of the child, their family in the UK—and in the country of origin.

—  The situation for children is especially acute when reporting takes place in "local" and minority ethnic communities, where children may easily be identified despite attempts at anonymisation of cases.

2.5  Effective protection for victims of domestic violence and their children

2.5.1  Women's Aid's main concern for the purposes of providing evidence to this inquiry is how the family courts can effectively protect and support families where domestic violence is a factor in family breakdown—divorce, separation, arrangements for children—to ensure the safety of children and parents in both the short and the long-term, whether in the realm of "public" or "private" law.

2.5.2  Domestic violence is one of the greatest family and criminal problems facing the UK, accounting for a quarter of all violent crime. It is a pattern of violence that includes physical, psychological and sexual violence.

2.5.3  Women's Aid is concerned that there is no reference to domestic violence in the current call for evidence. This is particularly striking as evidence has shown that domestic violence features significantly in both private and public law cases.[18] In our evidence, Women's Aid has used the definition of the family courts as outlined in the Ministry of Justice Court Statistics;[19] that the family courts deal with issues such as parental disputes, child protection cases, divorce and separation, and cases of domestic violence. We do not believe that these are mutually exclusive categories and they are interwoven and should be dealt with accordingly by the family courts. The Ministry of Justice's own figures show that only 10% of divorce and separation cases come into the family justice system, but of those, research has shown that a high proportion involve unreasonable behaviour from one of the parties including physical and mental abuse, often severe abuse, and this abuse also affects children significantly; often this abuse often continues long after separation has occurred.[20] Equally, 75% of children on child protection registers are affected by domestic violence in their family.

2.5.4  There is a dangerous separation between the proceedings of three separate court systems: child protection cases under public law (where the focus is on the child, and the mother is encouraged—or even forced—to leave her partner to protect her children from the consequences of living with domestic violence; the criminal court, where the perpetrator is charged and may be convicted of assault, harassment or other abuse; and the family court system where the same abuser is seen as a "good enough father" to be given contact.[21]

2.5.5  Our particular concern is outcomes of applications for contact and residence and the subsequent safety of children and non-abusing parent following these.

2.5.6  Women's Aid believes that all children have a right to enjoy regular contact with both parents and family members, following separation, provided that it is safe. Furthermore we believe that there is a link between equality and respect in family relationships and the incidence of domestic violence. Not only is there an obvious historical link in our own country's history in the status of women and access to better human rights, but we can still see in countries where there is absence of gender equality, and women's status is significantly lower, much higher incidences of violence against women and children.

2.5.7  Put another way, equality between women and men, in all aspects of life, including responsibilities for care and nurture of children, by providing better role models of healthy relationships for children and young people, for girls and for boys, is likely to help prevent violence and bullying behaviour in private and family life in the future.

2.5.8  For that reason we do believe that, except where there is a risk to their safety or wellbeing, where relationships have broken down, children should be able to have contact with non-resident parents, with grandparents, or be looked after through shared parenting arrangements.

2.5.9  However, where there is domestic violence, the family justice system should not assume that contact is beneficial and should be rigorous in the management of risks to safety and well-being of children and their parents. As Lord Justice Wall, now President of the Family Division, has said we should continue to promote the message that it is not possible at one and the same time to be guilty of serious violence to your partner and to hold yourself out as a good parent. The old approach that a man may have abused the mother of his children, but that he had not struck the children and that he was still a good father will no longer wash in the over-whelming majority of cases.[22]

2.5.10  Women's Aid firmly believes that in every case in the family justice system, especially where there are allegations of children witnessing or experiencing abuse, that there needs to be separate, wholly independent advocacy for children. Women's Aid frequently carries out consultation and research with children and young people to get their views on all elements of our work. In our Kidspeak report in 2007,[23] children expressed their wish for independent advocacy and representation and were extremely concerned that their views were not considered as they should be.

Women's Aid Recommends:

That effective protection of children and their non-abusing parent in both the short and long term be the primary consideration of the family justice system

That there is no assumption that a violent parent is a good parent or that they have stopped being abusive just because they say that they have

That the family justice system recognises that domestic violence neither begins nor indeed stops, at the point of separation and can often continue long after separation.

The views of children are fully taken into account in line with international commitments

September 2010

APPENDIX 1

WOMEN'S AID FEDERATION OF ENGLAND SPECIAL SURVEY—EXTRACTS SEPTEMBER 2010

1.  INTRODUCTION AND METHODOLOGY

In support of our submission to the Family Justice Review, Women's Aid (WA) devised and circulated a questionnaire in September 2010 to selection of our national network of services and individual members, covering the main subject areas covered in the call for evidence although not the exact questions, and some additional ones of particular concern to our organisation.

The questionnaire was as far as possible designed to be answered very quickly and easily, wholly on-line, as this facilitated both response and analysis. Most questions had space for further comment, case studies, and examples of good and bad practice, and a selection had pre-determined answers.

2.  SUMMARY OF KEY RESPONSES (HOW MANY)

Q1.  How effectively does the family justice system currently meet the needs of women and children in your services?

The majority of respondents were not very positive about how effectively the current system meets the needs of women and children in Women's Aid services. Many highlighted inconsistencies between cases citing differing awareness of the dynamics of domestic violence as the cause. They also highlighted that the process can have a very negative impact on vulnerable women who find it extremely traumatic and that it can also place women and children at risk.

"We have had cases where contact that has been ordered through the courts is, we feel, putting the safety of the woman and her children at risk; eg at risk of being followed back to refuge/emotional risk at having to see him during hand over times/risk of emotional abuse via text/phone when making contact arrangements. It feels like the extent of DVA in a case or the way it works (power and control) is not fully taken into account. It feels like supervised contact would, quite often, be the preferred option, but there is so little resource around this and also the courts don't favour contact not moving on from a contact centre—this, however, in some cases would seem the only option."

"on the whole fairly well, but it can often be very traumatic for the women and I don't think the Courts take this into account when the women has got to be in the same room as the perpetrator."

"There does not appear to be any consistency between cases and what might apply in one case seems to be disregarded in another leaving those working with the women and children wary of providing the wrong advice ie If you have encouraged a women to go through the system in order to protect herself and her children and they find against her it can be a very traumatic experience leaving women again in a position where they feel that they have no-one to turn to for support"

"I do not feel it is very effective at all. It depends an awful lot on individual judges and their knowledge and experience of domestic abuse. CAFCASS are not effective either and often make the assumption that all contact is good without looking at the repercussions for the mother and children."

"It is inconsistent. It depends on the Judge on the day as to what orders are made."

Q2.  How could the family justice system be improved to ensure that it meets the needs of women and children escaping domestic violence?

Q3.  How could the family justice system ensure that women and children are sufficiently protected in the courts?

We have taken these two questions together as the responses were broadly similar. The respondents to both questions suggested a wide range of measures to ensure that women and children are provided with safety in the family justice system. The overwhelming response was to take all accounts of domestic violence seriously and not to trivialise non-physical domestic violence.

"Ensure that domestic abuse and violence is fully taken into account in family court cases."

Some of the suggestions included special measures in the courts for women and children as witnesses:

"I think video link should be used for Court cases where there has been significant domestic violence. Screens are helpful, but it does not stop the anxiety of being in the same room as the man they have fled from."

"By taking on board the stress and anxiety caused by seeing a perpetrator at Court and using video links."

"When domestic violence is identified special measures should be provided including having a more informal hearing as it [appearing in court] can be quite intimidating for women. Listening to what the children say via video link."

Many of the respondents also highlighted that contact can be used as a malicious means of maintaining control or perpetuating the abuse of women and children. They included the fact that often cases that are continuously brought before the court are brought as a way of re-victimising the non-abusing parent, especially if the applicant has access to legal aid and the respondent does not:

"Recognition of the impact on women and children and the potential dangers of ordering contact with fathers who will use the children as a way of accessing their mothers and the damage this causes the children."

"The courts need to be less tolerant of blatant time wasters. We lose count of the number of times women are fixated and terrified about going to court and he just doesn't turn up and the court reschedules the hearing again and again. This is so abusive and controlling."

"We would also like to see the courts spot overly combative men who use the courts as a way to keep him feeling important in her life. They drag her back to court time and time again in an attempt to undermine her parenting."

"The FJS needs to identify and stop the FJS being used to financially abuse a woman. We notice that where he represents himself and she has to pay a solicitor, he takes great joy in dragging her into court for any reason as it costs her a lot of money. The courts should start to charge him her costs where this is the case."

"More thought could be given to the effects of litigant in person perpetrators cross questioning their victims and the impact this has. Greater understanding is needed about all aspects of domestic abuse much better understanding and safeguards are necessary to prevent perpetrators from using the court system to continue to abuse their former partner and much more weight needs to be given to the victim when they express concerns about continued abuse via children."

Training of court personnel was also suggested by the majority of the respondents. They want to see training of all staff in the family justice system about the dynamics of domestic violence:

"Training should be provided so that they can acknowledge that the violent parent is a threat to the children and that the violent parent will use the children as nothing more than a tool to harm the mother further emotionally and sometimes the children physically."

"By ensuring that all judges/magistrates are fully trained with regards to domestic abuse and violence and also how it can operate—not only when the couple are together but when they have separated and how it can be perpetuated through contact."

"All employees should have proper training in domestic violence which includes listening to women and children's experiences when contact was forced to take place."

Overwhelmingly the biggest call was for safety issues to have greater prominence. Worryingly, our respondents mentioned that the court has divulged the addresses of some women and children who have fled domestic violence, including refuge addresses. This not only places the woman herself in danger but also all the women and children in the refuge:

"Addresses and locations of families who have escaped domestic violence are still disclosed (this in always in error, however it still potentially places families at risk)"

"Allow the woman's personal safety—physical/emotional and mental to be taken into consideration to a greater extent."

"Better advocacy for the women. Better training for magistrates and judges in the effects of DVA. Acceptance of the need for anonymity in refuge."

Q4.  How could the family justice system grant contact to grandparents in a safe way?

The majority of respondents were fully supportive of contact between children and their grandparents providing that it is safe. All of the respondents agreed that there needed to be effective risk assessments carried out and risk management put in place, including ensuring that there was not collusion with abusive parents and that the views of the child should be sought. Some respondents felt that it was safer for children to have contact with their grandparents in a contact centre and others highlighted that children are often subject to a range of conflicting demands and forced to split their time between too many actors:

"Grandparents need to know the seriousness of keeping children safe and how this will be reviewed and each situation must be considered on an individual basis."

"This [contact with grandparents] would need to be risk assessed and negotiated to ensure that it would be safe for everyone. Courts also need to bear in mind that this child has a right to routine family life and should not have their life carved up into little slices to be shared with adults. Some children never seem to just get time at home with their immediate family because of the amount of formal contact arranged around them."

"I feel sorry for children in the way that their time is sliced up into portions and given to adults who demand contact with them. Although relationships with other family members are important, so is time for a child just to 'be' at home and to get time for their own things. It may not always be possible to extend formal contact to extended family members to the extent where they can have a meaningful relationship. Other methods of contact should be looked at other than just face to face."

"I think most women would agree to contact with grandparents if they have been supportive during the relationship. I also think that it could be supervised until [the court is] satisfied that the child is safe. [There should be the] opportunity for the mother to take it back to court if she feels the child is being used to continue the abuse of herself."

"[There needs to be] Thorough risk assessment and risk management and the [court needs to carry out] same checks it does on parents and foster carers. Possibly contact could take place via contact centres with orders in place so [that there is] no contact during the visit with the perpetrator, etc."

"Difficult but could be done through supervised contact. Difficulty is when grandparents collude with abusing parent. [Contact could be organised] by making sure that the grandparents who are the abusive parent's parents do not facilitate child contact."

Q5.  How effective is CAFCASS in your local area?

The majority of respondents (50%) had no strong feelings about how effective CAFCASS is in their local area ( or had good and bad experiences which cancelled each other out). 15% felt that CAFCASS is effective and 35% felt CAFCASS was ineffective (5% of which said very ineffective).

Q6.  Do you have any comments about CAFCASS in your local area?

As with the responses to how effective CAFCASS are there is a wide range of view on CAFCASS at a local level. Many of the respondents highlighted the issues that we have raised in our written evidence: problem of delays, backlogs, staffing issues and a lack of resources. However, there is a wide difference at a local level between CAFCASS offices. Some are clearly willing to engage with local specialist services, whilst others do not view Women's Aid services as professionals:

"They have recently approached us and invited us to attend a team meeting to discuss ways of working in the future—which was very positive. I feel I can ring them up and ask for advice about a case."

"Some officers are ok others have a poor view of refuges and do not treat the staff as professionals they ignore our opinions and information given."

Q7.  Can you provide examples of how CAFCASS works (well or badly) in your area? Please feel free to add in specific examples as we will anonymise them in our response

Again, as in the previous two questions the response to this question varied hugely between very positive experiences and very negative experiences. Some respondents also gave examples of good practice whilst also giving examples of very negative practice within the same CAFCASS area:

"I supported a lady whose ex partner was a schedule 1 sex offender, I advised her to contact CAFCASS in (X-town) regarding pending contact hearing as she had a lot of court papers from a previous hearing. They arranged to see her before the hearing and put a very good case to the Court against the perpetrator who was granted no contact and she got an indefinite non molestation order. The lady felt very supported by CAFCASS."

"They have not always taken into account the domestic abuse and violence and how this can be perpetuated through contact. That the child may be being influenced by the perpetrator or feel stuck in the middle wishing to please both parties and so wouldn't necessarily make a clear decision taking into account their own or their mother's safety. Also that the mother may be terrified of the perp/unable to stand up to him because of the DVA and so, eg give into other contact arrangements that he is pressurising her for."

"Our involvement with CAFCASS appears to only occur when families are living outside of Bolton. We feel that we often have a wealth of information that children have disclosed during their stay at the refuge, this includes their accounts of the violence and incidents they have overheard or witnessed. My worries are that perhaps vital information from children & young people is being missed. We would like to build a better working relationship with CAFCASS to ensure best outcomes for children and families but they seem unwilling to engage."

"We have had a recent case where CAFCASS are saying to mum that she needs to move on as the DV is in the past. They accept that he is still abusing her at contact handover but minimise it and say 'he probably should moderate his behaviour at handover' and saying to her that he is such a good dad—it makes her feel that it is her that is the problem."

"One client had a contact order in place. However, this was not what her abuser wanted as really all he wanted was to continually abuse her. It went back to court last December and he was given an undertaking not to harass her. He ignored this and continued the harassment. Went back to court in June, he was given 2 x 28 day suspended sentences. Despite all of this and her daughter's wishes not to have contact, CAFCASS wrote a report recommending contact. She [the mother] and her solicitor then made a complaint about this particular worker and the report. This was followed up by another report by the same worker again!"

Q8.  What training do you think should be provided to those working in the family justice system?

Overwhelmingly all of the respondents thought that everyone in the family justice system should receive in-depth training on domestic violence including the impacts on victims and especially on children. Many also felt that all staff should receive training on risk and child protection. Others felt that direct contact with survivors of domestic violence or visits to refuges would help those working in the family justice system to understand the impacts. Many of the respondents also highlighted, as has been highlighted in both our written evidence and also earlier in the survey, that abusive parents often continue with applications to further abuse their ex-partners:

"I think that all people working in the family justice system should have in-depth training about domestic violence and the effects it has on women and children long term."

"I think they should all attend comprehensive domestic abuse training, speak to people who support women and children affected by domestic abuse. More importantly is to speak to child survivors of domestic abuse. Children appear to be the forgotten victims and very often are labelled because of their behaviour which is not recognised as being an effect of what they have experienced. It would be good to speak to adults who experienced domestic violence as children to see from their perspective how it has affected their lives and what support they did or did not receive from the system."

"They need to understand the dynamics of abusive relationships and the role that the FJS can play in ending the abuse. They need to learn how to spot those who are using the FJS to continue abusing their partner and children. Judges in particular need awareness training for DV particularly around the tactics used by abusers and the long term effects that abusers have on their families. They also need to understand what a huge impact DV has on people's lives."

"To understand that abusers do not necessarily want contact but just want to continue the abuse. They also need to have a better understanding of the needs of women who have lived with violent offenders and the lack of self -confidence they suffer because of it."

Q.9  How could the family justice system best promote positive outcomes for children?

The majority of respondents to this questions said that the family justice system needs to listen and to take into account the needs, wishes and feelings of children in order to promote the best outcomes for them. Other responses including ensuring that the court takes into account all of the domestic violence that has taken place and to recognise when perpetrators were using the courts to re-victimise people. Other respondents also urged that there was a great need for multi-agency working:

"Listen to the children and take into account their feelings even at a young age. For a mother to have to take their children to contact when the children do not want to go is very difficult for the mother to comply with court orders."

"By working more closely with agencies from the voluntary sector, rather than key focus being with statutory bodies."

"Ensure that children's voices are heard. Ensure that the DVA is fully taken into account and discern whether this is influencing the child's opinion. Ensure more resource is put into contact centres/professional working in this area—so good decisions are made and there are safe contact opportunities available."

"Children never seem to have a voice and decisions are being made for them we have to listen more to what they are saying and hear them!"

"The [family justice] system stands obviously outside of the multi-agency arrangements that other agencies are involved in. Women's Aid works closely with Housing, Social Services, police etc. to help keep women and children safe and I wonder why the courts don't work in this way too. I would like to see multiagency panels being called for DV cases where professionals could attend or send a letter about their concerns and what they want for this family."

"The courts need to recognise that it is important that they make it clear that they understand what has happened. Time and time again, we get cases where it is clear that he is the abuser but the courts get both him and her to do an undertaking that they will not abuse each other. Why are women being asked to do this when they have no history of abuse? It looks like the court are taking a 'no fault' view and see both parties as problematic."

"The FJS also needs to look to see if this man who is demanding the right to see his child is an interested and engaged dad. Does he care about his child's welfare? Is he paying his maintenance? Too often we see situations where she is struggling to make ends meet and not receiving any maintenance and he is buying the child lavish gifts to make himself look good. The FJS has a responsibility to recognise abuse and challenge it, not collude with it."

"By ensuring that children who have witnessed dv do not have to endure emotional abuse after dv by way of child contact."

Q10.  Do you think that children's voices are currently adequately heard and listened to in the current system?

The overwhelming response to this question was No which was answered by 94.7% of respondents with only 5.3% answering yes.

Q10b.  How should the voice of the child be heard in the family justice system?

All of the respondents stressed the need to listen and to fully take account of the voices of children. They also stated that, in their experiences, the courts and CAFCASS do not take the voices of the child into account as much as they could. Other respondents stressed the need for CAFCASS to spend more time getting to know the child and to talk to the professionals (including Women's Aid staff) already working with the child as children often take a long time to disclose domestic violence. One commentator said that there needed to be a sea-change with an alternative to CAFCASS created:

"A lot of children are affected by domestic violence and often Courts do not listen to them enough and make contact happen as fathers have rights. But what about the rights of the children."

"[The courts need to listen] at every point. The court needs to ascertain the child's views on whether they want to see their dad (if the perpetrator) and whether they feel safe when they are with the perpetrator. If very young—then via their behaviour and reactions before, during and after contact—how it is affecting them. It also needs to be stressed that their concern for the main carer and also them as people stuck in the middle should be fully taken into account."

"A child should receive one to one support for a period of time to allow them to build a trusting relationship with that person, allow them to talk when they want to talk and take time to understand them. I understand that time is not always available in the Court System but we have to remember when making decisions on behalf of children we are affecting the rest of their lives so we have to be sure that the right decision is reached for the best interest of the child and not concern ourselves with what is in the best interest of the adults. The child must come first."

"Cafcass should have more time to get the child opinion and listen to others working with that child who may be able to help them communicate better with the child."

"There needs to be a system where all children are listened to in all cases, this may involve mean creating a new role within the family justice system. For this to happen there needs to be more consultation with services that are involved with children and who are aware of their wishes."

"An independent body should advocate for the child to ensure their voices are heard. Time should be spent getting to know them—it takes children a long time to open up."

"They should be asked their opinion not in a court and if possible if circumstances permit act on what the child desires and it should also be recognised that young children cannot be heard before they are fully verbal. Decisions impacting on their care should not be made until they are sufficiently able to express an opinion, unless their safety is compromised without so doing."

"Children should be protected based on the facts of domestic violence cases and it should be understood by the judicial system how violent men use children to further their abuse of their ex partners. not all cases are this way, but dv by its very nature shows an abusive persons tendency to be manipulative and controlling. They will be like this with their children if they are like it with adults."

APPENDIX 2

RESULTS OF TELEPHONE CONSULTATIONS ON CAFCASS 2008-10

3.  INTRODUCTION AND METHODOLOGY

In support of our submission to the Family Justice Review, Women's Aid (WA) has gathered together research and consultation that we have carried out with our member services during the period 2008-10.

The research from the consultations was used to inform Ofsted during their area inspections of CAFCASS and the geographical areas used in the research correspond to the CAFCASS service areas.

The comments have been grouped together in thematic areas:

—  General Comments.

—  Training.

—  Service user engagement.

—  Listening to children.

—  Partnership working.

4.  SUMMARY OF KEY RESPONSES

General Comments

Generally, we have received mixed reviews from our members about CAFCASS. In some areas they seem to be working extremely effectively and are sympathetic and understanding towards victims of domestic violence whilst in other areas they are extremely poor and appear almost hostile towards the women in our services. Many of the respondents also noted the time delays, including time delays in cases where the original CAFCASS worker was on long-term sick leave and had not been replaced.

Case Study Example: C7 Area (Cheshire and Merseyside):

We had one case in particular, a woman who had severe mental heath illness (bi-polar disorder). She had several appointments with him [the worker in question], as she had been forced to flee her marital home and leave her children behind. She was especially vulnerable due to the extent of her mental health difficulties, and required heavy levels of support from us. He refused to let her take an advocate from our organisation into the appointments with her. We used to transport her there, but he would not allow us in with her. We had to wait outside until the appointment was over.

She found this quite an ordeal and left every appointment very distressed, stating that he had been horrible to her.

Since then I have attended a workshop at National Conference, facilitated by CAFCASS personnel, who assured me that he was in the wrong to do this, as it was her human right to have someone in the appointments with her if she chose to. The woman in question at the time did not want us to take any action, as she was still dealing with CAFCASS and trying to win the right to see her children. She feared that "making trouble" for him would have a detrimental outcome on her case.

Training

CAFCASS have developed an excellent training course on domestic violence for their workers but what Women's Aid members have told us is that its implementation is patchy and inconsistent and that many of the workers do not understand the dynamics of domestic violence. Many of our respondents told us that CAFCASS can often side with the "charming" father and believe that he is going to change his behaviour because he has said so. We also have evidence of CAFCASS spending the majority of their time with the father and not with the mother and also interviewing the father and child together but not the mother and child. There are also reports from our members that CAFCASS also do not understand that perpetrators of domestic violence can be extremely manipulative.

Our members believe that CAFCASS workers need more training and that when they do receive it, or where there are mutual training days (see partnership working below) they develop a better understanding and are more likely to be objective in their reports:

"There is no deeper investigation into the cases—often what is said by the father is taken at face value."

"'The CAFCASS officers still do not have an understanding of the dynamics of domestic violence."

"There is little understanding of abuse and its impact on women and children."

"In (Y-town) I think there is only one good worker. She is the only one that has any grasp of dv. Yet this worker still made a comment to the mother [who had experienced severe domestic violence] on interviewing the child by saying "oh I see he gets his looks from his father."

"They have no understanding of domestic violence. They don't realise how manipulative perps can be."

Case Study Example: N3 Area (Lancashire and Cumbria):

—  In this case it was the mother seeking contact (she has since suspended/withdrawn the case) as she had fled the abuser but could not take the boy with her (I am unsure whether it was due to ages of boys allowed in the refuge or if it was a speed of fleeing issue).

—  The DV had a profound effect on the boy and he had attempted suicide twice. He was also seen to be very attached to his mother.

—  He said he did not want to see his mother and started using language that mirrored the language that the father used (eg slag and slut etc.)

—  The father had exerted a lot of pressure on the boy to say that he did not want to see his mother.

—  The mother had had an affair and the boy knew all of the details about this (which he could not have done unless the father had told him).

—  The officer took on board what the boy said completely without probing deeper into the family situation and into how the boy knew all of the details.

—  They also neglected to interview the other son, who was 18-19 who said that the father had told the younger brother about the affair.

—  In this case the boy had clearly been manipulated by the father but the CAFCASS officers did not pick this up.

Case Study Example: N4 Area (North and East Yorkshire and Humberside):

One of the children, who is 11, is displaying behavioural problems including violence against his male siblings and the mother. The father is encouraging the child's behaviour against the mother.

The CAFCASS worker was assigned again to look into the case but the date for her report has already passed. She has yet to contact any outside agencies and the final hearing is in November.

She has seen the children, but with the father present and no permission from the mother who has residency. She has spent huge amounts of time with the father but none with the mother (which I feel is typical of CAFCASS in this area).

In court, the CAFCASS worker sat with her solicitor and gave him a huge list of questions to ask the mother, almost as if she were cross-examining the mother and challenging her evidence but she did not have any questions for the father.

She has no experience or understanding of dv. In general in the York area the workers have no understanding of perpetrators (i.e. that they come across as charming and are v manipulative). They appear to take what they say at face value. They also have poor knowledge of the impact of dv on families and children. There is also little empathy for the mothers.

It is also clear where the father is educated and middle class they tend to take his side and be very pro-contact, regardless of what the children say

SERVICE USER ENGAGEMENT

As outlined above, many of the issues around service user engagement are linked to a lack of thorough training on domestic violence. In some areas CAFCASS can appear quite hostile towards women according to our member services, whilst in others our members were very positive about CAFCASS's attitudes towards women especially if they were in refuge provision.

"Once they know they [the women in their service] have been in refuge they are very sympathetic. They acknowledge that it is very difficult for them."

"The use of male officers is still a cause for concern for many of the women as they are very reluctant to disclose the full levels of violence, especially sexual violence and this means that often the workers don't think that the domestic violence is as bad as it is. This causes concern because women feel they are unable to present their case as fully as possible."

"We have too many examples of times that domestic abuse is minimised. There is a lot of sympathy for the dads and admiration that they want to see their children. Past domestic violence is dismissed as they are keen for everyone 'to move on'. Current abuse is minimised and even when noted, seen as something he should try to moderate but not dealt with seriously. Mums are put under a lot of pressure at court to put their needs aside in order to accommodate dad."

LISTENING TO CHILDREN

The message is clear here—CAFCASS in most (but not all) of the areas that we consulted do not adequately listen to the voices of children. We have clear evidence where children have clearly said they do not want any contact with their father but yet CAFCASS recommend that contact takes place.

"They are still not listening to the children as much as they should do."

"In another case, the client asked the WA worker to go with them for their CAFCASS interview. The CAFCASS worker refused to allow WA to be present. This case was originally in an outreach service but the mother and the child are so terrified that they entered into refuge provision. The child who is 7-8 is so terrified of her father that she does not want any contact with him. CAFCASS did not take this seriously."

Case Study Example: N3 (Lancashire and Cumbria):

—  In this case a 14 year old girl wanted no contact with her father, that she had no interest in maintaining relations with him.

—  The mother said that she did not mind if the father had contact but that it was up to the daughter.

—  The CAFCASS officer said that the mother was clearly manipulating the daughter into saying that she did not want contact and recommended that contact be awarded.

—  This was also a case that had been to MARAC so was obviously high risk.

PARTNERSHIP WORKING

There are mixed levels of engagement by CAFCASS with Women's Aid members. In some areas CAFCASS work very effectively and value Women's Aid members' input into their report whilst in other areas CAFCASS will not even talk to our members and view them as not being of importance or of a professional level.

"CAFCASS are happy to engage and the manager of CAFCASS (although she is leaving I think) works with the manager of WA."

"Hull Women's Aid and CAFCASS have a very good working relationship. The workers appear to have good knowledge of DV and WA has no concerns about them."

"We have tried to build bridges with CAFCASS by inviting them for mutual training and information. This has been cancelled on a number of occasions."

"CAFCASS do not attend the local dv forum which I feel is not a tokenistic forum, as in other areas, but is very well attended by all other agencies (health, police, social services, local council etc.) CAFCASS's non-attendance has been raised on more than one occasion at the forum but they appear unwilling to engage. They need a cultural shift not just training."

"CAFCASS tell the service when they are involved and ask for recommendations from the service on what they should do—they use our existing relations with the children to consult their views. They ask us to ask the children (and in our own opinions) whether there should be contact and at what level (supervised, unsupervised, overnight etc.) we are also asked to prepare court reports for CAFCASS on the children's views."

"We have had no response to any complaints made and feel that no changes have been made to CAFCASS as a result of our complaints."

APPENDIX 3

MYTHS AND FACTS ABOUT DOMESTIC VIOLENCE AND CHILD CONTACT

Briefing from the Women's National Commission (WNC), the Government's independent advisory body on women's issues (1969-10) representing 670 partner organisations and eight million women.

The WNC believes that all children have a right to enjoy regular contact with both parents and family members, following separation, provided that it is safe. We are concerned however that despite recent government initiatives and despite the present law, mothers and children who have experienced domestic violence are not safe during contact arrangements.

MYTH: Domestic violence is not widespread, as many men are victims as women.

FACT: Domestic violence is one of the greatest criminal problems facing the UK, accounting for a quarter of all violent crime (1). It is a pattern of violence that includes physical, psychological and sexual violence.

Crime statistics and research both show that domestic violence is gender specific—ie predominantly experienced by women and perpetrated by men (2). Any woman can experience domestic violence regardless of race, ethnicity or religion, class, sexuality, mental or physical ability or lifestyle: one in four women experience domestic violence at some time in their lives. It is women who suffer the most serious harm, intimidation, threats, rape, strangulation and post-separation violence, and are most likely to be killed by current or former male partners (3).

MYTH: Domestic violence does not feature in most relationship breakdown or divorce cases.

FACT: Of 2,500 families entering mediation, approximately 75% of parents indicated that domestic violence had occurred during the relationship (4).

MYTH: Domestic violence stops on separation or once the relationship ends.

FACT: Women are at a higher risk of violence and of being killed after leaving violent partners (5). Domestic violence continues long after the relationship has ended—76% of separated women suffer post-separation violence (6). It is one of the most significant causes of repeat homelessness (7) and repeat victimisation (8). 79% of women leave their violent partner because the abuse is affecting their children or they fear for their children's lives (9).

MYTH: Domestic violence only affects adults.

FACT: 75% of all UK children on child protection registers are affected by domestic violence (10). Children experience physical injury and sexual abuse, and witnessing domestic violence is emotionally abusive resulting in psychological trauma, anger, fear, insecurity and guilt. In 40-66% of domestic violence cases, the same violent man is directly abusing the children (11).

MYTH: Fathers are routinely denied contact with their children by the courts.

FACT: Although there is no statutory presumption of contact, a pro-contact stance is implicit and decisions in leading cases have resulted in a strong assumption of contact by judges. The number of Contact Orders granted by the courts increased from 42,000 in 1997 to 61,356 in 2002, and over the same period the number of contact orders refused by the courts fell from 1850 to 518—in 2002 only 0.8% of orders were refused (12). Only 9% of non-resident parents say they never see their child (13).

MYTH: Contact is good for the child, even if it is with a parent who is violent.

FACT: There is no evidence to show that contact with a violent parent is good for the child. It is the nature and quality of parenting by the contact parent that is important, not contact in itself, and where there is abuse, parental conflict or domestic violence, contact is extremely damaging to children (14). In 2000 a Court of Appeal decision (Re L) described domestic violence as "a significant failure of parenting".

Children who have lived with domestic violence need support, safety and a stable environment to recover from its effects. Children's emotional and behavioural problems are associated with their relationship with 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 (15).

The value of contact and its quality is rarely examined. 16% of refuges in England and Wales say they know of local cases since April 2001 where a contact visit with a violent parent has resulted in a child being significantly harmed (16). Since 1999 at least 19 children have been killed during contact visits in England and Wales (17).

MYTH: Children are not being placed at risk by court ordered contact.

FACT: A recent report stated that there are "serious concerns that contact is being inappropriately ordered in cases where there are established risks" (18).

Since the introduction of court guidance on contact and domestic violence in April 2001, across England and Wales—at least 18 children have been ordered to have contact with fathers who had committed offences against children (schedule 1 offenders); 64 children have been ordered to have contact with fathers whose behaviour previously caused children to be placed on the Child Protection Register. 21 of these children were ordered to have unsupervised contact with the violent father. 101 children have been ordered to live with a violent father, often because he was living in secure accommodation in the former family home (19).

MYTH: Law and court practice adequately listen to children's concerns about contact.

FACT: 16% of refuges in England and Wales believe that appropriate measures are never taken to ensure the safety of the child and the resident parent and 13% say children are never listened to (20). 76% of children ordered by the courts to have contact with a violent parent were abused during contact (21). Domestic violence perpetrators often use child contact laws to track and stalk their victims after they leave a violent situation—this is when women and children are at most risk of homicide (22).

MYTH: More mothers kill children than fathers.

FACT: Between 1995 and 1999 in England and Wales, 90% of the known or suspected killers of children aged 10-16 were male, dropping to 62% for children aged below five years, and 56% for infants of less than one year (23). Infanticides (killings of infants under one year by a natural parent) are committed in roughly equal proportions by mothers (47%) and fathers (53%)—where the child is killed by someone other than a parent, males strongly predominate (24).

General patterns of domestic violence are much more characteristic of male filicide perpetrators than of female: men who kill their children are more likely to have been violent to the child, and to their partner, before the filicide. Women are more likely to have been diagnosed as suffering from some form of psychiatric disorder (25).

In Australia males outnumber females 76%:24% as killers of children. The largest number of children 35% (n43) died as a consequence of a family dispute, usually relating to the termination of their parents' relationship and men were the offenders in all these incidents (26).

MYTH: Resident mothers are often obstructive to contact applications, and display "parental alienation syndrome" if they have been a victim of domestic violence.

FACT: Research has found the opposite: in general, resident parents (usually the mother) want their ex-partners to see the children more, not less (27). The majority of women who have experienced domestic violence also want to maintain their children's contact with the father after separation. Despite mothers trying hard to maintain contact, contact ultimately fails because of the men's continuing violence and abuse (28).

Experts have dismissed Parental Alienation Syndrome—it is not recognised as a "syndrome", not accepted by mainstream opinion and not a helpful concept (29), and courts are too ready to brand as "implacably hostile" parents who have very good reasons for opposing contact. In Australia a study of applications to enforce contact orders found 65% involved major concerns about the non-resident parent's care (30). In England and Wales since 2001, 175 women were threatened with sanctions, including imprisonment and losing residence of their child, for failing to agree to unsafe contact, even where there was evidence of police involvement, breached injunctions and convictions for violence (31).

Separate representation of children in private proceedings needs urgent implementation to ensure their interests are separately represented and their welfare safeguarded.

MYTH: Disabled women are unfit mothers.

FACT: De-sexualised perceptions of disabled women impact on domestic violence; cultural depictions of disabled women as unfit mothers equip violent partners with increased and often realistic threats of gaining residence of children. Recent research has shown that such threats deter women from disclosing and/or leaving a violent partner primarily due to fear of losing contact with children. All abused women in this research were threatened with losing residence of children, and all except one mother did lose residence after leaving the violent partner (32).

REFERENCES:

(1)  Macpherson S (2002) "Domestic Violence: Findings from the 2000 Scottish Crime Survey"; Kershaw C et al (2000) 'The 2000 British Crime Survey England and Wales' Home Office Statistical Bulletin 18/00.

(2)  Research findings of "gender symmetry" in domestic violence have been criticised for flawed methods including problems with sampling, a focus on physical violence only and ignoring the context in which the violence occurs—see Paradine and Wilkinson (2004)—Research and Literature Review: Protection and accountability—the reporting, investigation and prosecution of domestic violence cases" CENTREX for HMIC/HMCPSI. Also see Gadd D et al (2002) "Domestic Abuse Against Men in Scotland" Scottish Executive, which found that a quarter of men who had initially claimed to have experienced domestic violence in the Scottish Crime Survey had misinterpreted the term, and of those that had experienced abuse it was much less frequent and less severe than by female victims.

(3)  For example see Mirlees-Black (1999) "Domestic violence: findings from a new British crime survey"; Dominy N and Radford L, (1996) "Domestic Violence in Surrey"; Mooney J (1993) "The Hidden Figure: Domestic Violence in North London".

(4)  Hirst 2002—cited in Jaffe, Zewer and Poisson (2003) "Access Denied. The Barriers of Violence and Poverty for Abused Women and their Children After Separation".

(5)  Paradine and Wilkinson (2004) op. cit.; Walby and Myhill (2001) "Assessing and managing risk" in Taylor-Brown (2001) "What works in reducing domestic violence".

(6)  Humphreys C and Thiara R (2002) "Routes to Safety", Women's Aid.

(7)  ODPM (2002) "Domestic Violence Policy Briefing", Homelessness Directorate; ODPM (2003) "Repeat Homelessness Briefing" Homelessness Directorate.

(8)  British Crime Survey 2000: Kershaw et al (2000) op. cit.

(9)  Humphreys and Thiara (2002) op. cit.

(10)  Department of Health, (2003) "Into the Mainstream".

(11)  Edleson J (1999) "The overlap between child maltreatment and woman battering" Violence Against Women 5(2).

(12)  Judicial Statistics (2002) Lord Chancellor's Department.

(13)  Attwood C et al (2003) Home Office Citizenship Survey: people, families and communities Home Office.

(14)  Hunt J and Roberts C (2004) "Child contact with non resident parents" Family Policy Briefing.

(15)  Jaffe, Zerwer and Poisson. Access Denied. The Barriers of Violence and Poverty for Abused Women and their Children After Separation, 2003.

(16)  Saunders H and Barron J (2003) "Failure to Protect? Domestic violence and the experience of abused women and children in the family courts" Women's Aid.

(17)  Women's Aid Federation of England website www.womensaid.org.uk

(18)  Hunt and Roberts Child contact with non-resident parents 2004.

(19)  Saunders H and Barron J (2003) op. cit.

(20)  Ibid.

(21)  Radford, L et al. (1999) 'Unreasonable Fears' Bristol: Women's Aid. Of the 76% of 148 children abused during contact: 10% were sexually abused, 15% were physically assaulted, 26% were abducted or involved in an abduction attempt, 36% were neglected during contact and 62% suffered emotional harm.#

(22)  Paradine and Wilkinson (2004) op. cit.

(23)  Brookman and Maguire (2003) Reducing Homicide: a review of the possibilities Home Office Publications.

(24)  Ibid.

(25)  Wilczynski A (1995) "Child Killing By Parents: A Motivational Model" Child Abuse Review (4).

(26)  Strang, H. (1996) "Children as Victims of Homicide" in Trends and Issues in Crime and Criminal Justice. No 53.

(27)  Hunt J (2003) "Researching Contact" NCOPF.

(28)  Hester and Radford, (1996) Domestic Violence and Child Contact Arrangements in England and Denmark.

(29)  Sturge and Glaser (2000) "Contact and domestic violence—the Experts' Court Report" Family Law September.

(30)  Rhoades H (2002) "The No Contact Mother" International Journal of Law Policy and the Family.

(31)  Saunders and Barron 2003.

(32)  Magowan P (2004) forthcoming research into disabled women's experiences of domestic violence. The following quote was typical of Magowan's findings: He (the abuser) told me "If you leave me I can guarantee that I'm going to have G (child) taken off you". He went to the Social Services, said I was an unfit mother because I was disabled … I'd been married before and I'd lost my three girls. Then, I got in with an abusive partner. Then I had G ... G wasn't the easiest child to look after in the world ... I was having violence, I was being abused, I'd been scalded, I'd been locked up all day … I was in a state. But the social worker said "We've got a choice to make ... you either give up custody or stay with your partner". We went to court and he (the abuser) actually got custody of G. He (the child) would have been taken away from me if I didn't stay with K (abuser). So what did I do? … I stayed with my partner for G's sake.. I hated my partner but I stayed with him because that was the only way I could keep G."

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1   Professor Marianne Hester and her colleagues likens this to three separate and non-communicating planets: see Radford, Lorraine and Hester, Marianne (2007) Mothering through domestic violence (London: Jessica Kingsley Publishers). Back

2   Channel 4 despatches child homicide study (July 2009). Back

3   Brandon, Marion, Pippa Belderson, Catherine Warren, David Howe, Ruth Gardner, Jane Dodsworth and Jane Black. (2008) Analysing Child Deaths and Serious Injury through Abuse and Neglect: What Can We Learn? A Biennial Analysis of Serious Case Reviews 2003-05. (London: DSCF). Back

4   Saunders, H. (2004), 29 Child Homicides, Bristol: Women's Aid Back

5   Letter dated 16.7.2002 to Women's Aid Federation of England from Rosie Winterton, Parliamentary Secretary, Lord Chancellor's Department).  Back

6   NAPO, (2002) Contact, Separation and the work of Family Court Staff: A Briefing, NAPO the Trade Union and Professional association for Family Court and Probation Staff. Back

7   HMICA, (2005) Domestic Violence, Safety and Family Proceedings, available from: http://www.hmica.gov.uk (accessed April 2009). Back

8   CAFCASS, (2007) Putting Children First, available from: www.cafcass.gov.uk (accessed April 2009). Back

9   Ofsted, (2008) Ofsted's Inspection of Cafcass South East Region, available from: www.ofsted.gov.uk. Back

10   Hunt, J, (2010), Parental Perspectives on the Family Justice System in England and Wales: a review of research, Nuffield Foundation. Back

11   HMICA, (2005), Domestic Violence, Safety and Family Proceedings: Thematic review of the handling of domestic violence issues by the Children and Family Court Advisory and Support Service (CAFCASS) and the administration of family courts in Her Majesty's Courts Service (HMCS), London: HM Inspectorate of Courts Services, page 9, http://www.hmica.gov.uk/files/HMICA_Domestic_violence_linked1.pdf, (last accessed 27.10.10). Back

12  HMICA, (2008), The Family Courts-The Experience of Service Users, Bristol: HM Inspectorate of Court Administration, page v, Chief Inspector's Foreword, available online: http://www.hmica.gov.uk/files/The_Family_Courts_-_Experience_of_service_users._Report_31_July_08_.pdf (last accessed 27.10.10). Back

13   HMICA, (2005) op cit., Introduction. Back

14   Cabinet Office and Department for Children, Schools and Families, (2008), Families in Britain: An Evidence Paper, page 57, available at: http://www.cabinetoffice.gov.uk/media/111945/families_in_britain.pdf. Back

15   President of the Family Division, (2009) Practice Direction: Attendance of Media Representatives at Hearings in Family Proceedings, 20 April 2009. Back

16   President of the Family Division, (2009), President's Guidance in Relation to Applications Consequent Upon the Attendance of the Media in Family Proceedings, 22 April 2009. Back

17   Brophy, J, (2010), The views of children and young people regarding media access to family courts, London: Office of the Children's Commissioner. Back

18   For example, in a 2008 study conducted by the Ministry of Justice into applications for child contact orders, in 54% of cases sampled, the resident parent raised concerns over serious welfare issues, 34% of which were related to domestic violence. See Hunt, J and Macleod, S.(2008), Outcomes of applications to court for contact orders after parental separation or divorce, Briefing Note, Ministry of Justice, Family Law and Justice Division, September 2008. Back

19   Ministry of Justice (2010), Court Statistics Quarterly: January to March 2010, Ministry of Justice Statistical Bulletin. Back

20   See for example Hester & Radford (1996) Domestic Violence and Access Arrangements for Children in Denmark and England, Policy Press, University of Bristol. Back

21   Professor Marianne Hester and her colleagues likens this to three separate and non-communicating planets: see Radford, Lorraine and Hester, Marianne (2007) Mothering through domestic violence (London: Jessica Kingsley Publishers). Back

22   Lord Justice Wall (2007) Domestic Violence in Consent Orders, in a speech to the Hertfordshire Family Forum at the Law Faculty of the University of St Albans on 13 March 2007, available at: http://www.publications.parliament.uk/pa/cm200708/cmselect/cmhaff/263/263we49.htm. Back

23   Barron, J, (2007), Kidspeak: Giving Children and Young People a Voice on Domestic Violence, Bristol: Women's Aid. Back

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Prepared 14 July 2011