Supplementary written evidence from Dr
Lynne Harne, Centre
for Gender and Violence Research, School for Policy Studies, University
of Bristol (FC 56)
THE OPERATION OF THE FAMILY COURTS
MEMORANDUM ON
RESEARCH STUDIES
IN RELATION
TO DOMESTIC
VIOLENCE AND/OR
OTHER SERIOUS
WELFARE CONCERNS
AND THE
FAMILY COURTS
AND REFERENCES
STUDIES INDICATING
THE NUMBERS
OF CASES
WHERE ALLEGATIONS
OF DOMESTIC
VIOLENCE OR
OTHER SERIOUS
WELFARE CONCERNS
WERE MADE
IN THE
FAMILY COURTS
IN ENGLAND
AND WALES,
IN PRIVATE
LAW PROCEEDINGS
NAPO (National Association of Probation Officers)
(2002-03) (Sample size 300 case files) In 61% of cases allegations
of domestic violence were made by women against a male ex-partner
and in 16% of cases allegations were made by men against a female
ex-partner.
Trinder et al, (2006) investigated 250 parents'
experiences of in-court mediation schemes (125 women, 125 men).
Out of these 43% of mothers feared further domestic violence and
physical abuse of children as a consequence of the in-court agreement-seeking
process.
Aris and Harrison (2007) looked at all Section 8
application case files for contact or residence (n=297) following
the introduction of a new supplemental court form (C1A) asking
parents to disclose harm concerns, in three different sites over
a period of three months. Almost half of the applicants completed
the form (n=146) ie 49.1% of the whole sample. 93% included allegations
of domestic violence (n=137) but abduction of children was also
a key safety concern 23%. In addition there was "substantial
evidence" of domestic violence in a further 51 case files
where the C1A form had not been filled out, indicating that 63%
of case files involved domestic violence concerns.
Hunt and Mcleod (2008) examined 308 S.8 contact application
files begun in 2004. 54% involved "serious welfare concerns,"
raised by the resident parent, including domestic violence 34%;
child abuse and neglect 23%; drug abuse, 20%; alcohol abuse, 21%;
mental illness 13%; fear of abduction, 15%, with some raising
multiple abuse concerns In a number of other cases there were
past welfare concerns, usually involving domestic violence. In
total, allegations of domestic violence had been made in almost
half of the cases at some point (n=154). In only 37% of cases
across the sample (n=154 cases) were there no serious welfare
concerns either in past or current proceedings.
In summary this evidence suggests that domestic violence
and/or other serious welfare concerns are raised by parents in
approximately 40-60% of disputed contact and residence cases that
come before the family courts. This high level of domestic violence
concerns in disputed cases is not surprising given the extent
of domestic violence in the general population as indicated in
British Crime Surveys, where it is defined as force or threats
of force but excludes acts of sexual violence. For example, on
average between 8-10% of women over 16 experience domestic violence
each year and half of women experiencing domestic violence with
children separate from their partners because of this violence
(Walby and Allen, 2004; Mirrlees-Black, l998).
SUBSTANTIATION OF
DOMESTIC VIOLENCE
AND FALSE
ALLEGATIONS IN
THE FAMILY
COURTS
There is currently limited research in this area.
In England and Wales, it is only in the last five years that domestic
violence has been legally recognised as harmful to children (see
Children and Adoption Act, 2002, implemented in 2005). Prior to
this, despite legal guidance and case law, in general, domestic
violence has been given insufficient attention as a cause of harm.
The Aris and Harrison study (2007) referred to above
found that in 82.7% of applications for contact (no=43) where
there had been allegations of domestic violence, there was "other
evidence in the court file of a high level of violence,"
(Aris and Harrison, 2007:29). In 82 applications for residence
there were allegations of domestic violence (96.5%). Out of these
cases 70.6% of court files (no=60 cases) contained other evidence
of domestic violence, most frequently from the police and/or children's
services.
The Hunt and Mcleod study (2008) looking at contact
cases in 2004, prior to the implementation of the 2002 legislation,
found that in most cases where domestic violence was a current
issue, there was other evidence, including convictions, non-molestation
orders or undertakings, and admissions from the perpetrator, or
findings of fact in a prior hearing. For this reason there were
only 12 fact finding hearings where in 9 cases findings were made
on the basis on the evidence that the allegations were true. In
one other case both parents agreed they had a volatile relationship.
This study found that the courts tended to discount concrete evidence
of domestic violence and other serious welfare concerns such as
drug abuse or child abuse and neglect more frequently than taking
it into account in making decisions on contact.
INTERNATIONAL RESEARCH
ON SUBSTANTIATION
IN THE
FAMILY COURTS
A US study looked 120 families where there were multiple
allegations of child abuse, neglect and domestic violence. In
relation to domestic violence and substance abuse, 67% of women's
allegations were substantiated based on information from professionals,
written documentation, and interviews with family members and
55% of men's allegations against women were substantiated. This
study emphasised that unsubstantiated allegations were based on
lack of acceptable evidence, it could therefore make no findings
on false allegations (Johnston et al., 2005). An earlier Canadian
study based on 42 allegations by women against men found that
74% were substantiated through other evidence (Shaffer and Bala,
2003).
In Australia, research has been undertaken on cases
which included cases involving allegations of multiple abuse,
which includes allegations of domestic violence alongside child
abuse allegations and drug and alcohol abuse, involving 149 cases
(Brown et al, 2000). In the vast majority of these cases,
domestic violence was evidenced through protection orders and
evidence of physical and child sexual abuse (5% of cases before
the family courts) was found in 70% of cases. Only 9% of allegations
of physical and sexual child abuse allegations were found to be
false.
In conclusion, this existing research indicates that
most allegations of domestic violence are substantiated and there
is little evidence for frequent false allegations either in terms
of domestic violence or direct child abuse. However, it also has
to be born in mind that under-reporting of domestic violence to
the police is high with less than one in four women reporting
even after an incident of serious injury. Women in affluent families
are less likely to report, suggesting that the stigma of domestic
violence is more acute for these women. Under-reporting of sexual
violence (half of which involves partner or ex partner sexual
violence) is even higher with less than one in seven reporting
to the police according to British Crime Survey data. Further
there are a large minority of victims who tell no one about their
experiences of domestic violence (Walby and Myhill, 2004). This
under-reporting therefore affects substantiation of allegations
in the family courts, particularly where there is no police evidence.
REFERENCES
Aris, R and Harrison, C (2007) Domestic violence
and the supplemental information form' London, Ministry of
Justice.
Brown, T, Frederico, M, Hewitt, L and R Sheehan (2000)
"Revealing the existence of child abuse in the context of
marital breakdown and custody and access disputes. Child Abuse
and Neglect, 24, 36: 849-859.
Hunt, J and Mcleod, A (2008) Outcomes of applications
to court for contact orders after parental separation and divorce.
Oxford Centre for Family Law and Policy. Department of Social
Policy and Social Work. University of Oxford.
Johnston, J, Lee, S, Olesen, N and Walters, M (2005)
"Allegations and substantiations of Abuse in custody-disputing
families." Family Court Review, 46 (3) 500-522.
National Association of Probation Officers (2002)
Contact, Separation and the Work of Family Court Staff. London,
NAPO.
Kelly, L, Lovett, J and Regan, L (2005) A gap
or a chasm: attrition in reported rape cases. London, Home
Office.
Mirrlees-Black, C (l999) Domestic Violence: Findings
from the BCS Self-Completion Questionnaire. Home Office Research
Study 191. London: Home Office.
Shaffer, M and Bala, N (2003) Wife abuse, custody
and access in Canada, in Geffner et al (eds) The effects of
intimate partner violence on children. New York, Howorth.
Trinder, L, Connelly, K, Kellet, J and Norton, C
(2006) Making contact happen or making contact work. London.DCA.
Walby, S and Myhill, J (2004) Domestic violence,
sexual assault and stalking: Findings from the British Crime Survey.
London, Home Office.
September 2010
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