Operations of the Family Courts - Justice Committee Contents

Written evidence from Dr Lynne Harne, Centre for Gender and Violence Research, School for Policy Studies, University of Bristol (FC 44)



This response addresses question 1—"the effect of Cafcass's operations on court proceedings" and in particular the role of Cafcass in safeguarding children in private law proceedings, when parents make S.8 applications for contact and residence to the family courts. The submission argues that Cafcass has a key and essential role in safeguarding children in this area and if this was removed, by for example, introducing compulsory mediation for all parents who do not agree arrangements for children on separation or divorce, this would put a large number of children at considerable risk of harm, and result in a failure to provide social justice to children. The response draws on the author's own research on Cafcass safeguarding processes and this is attached as supplementary information to the submission


The nature of the problem

At least a million children in the UK are harmed through parental domestic violence which is repetitive and forms a pattern of coercive and controlling behaviours (DoH, 2002). Research indicates that such violence rather than being mutual between partners is frequently gender-related with women being far more likely to experience repeated attacks and suffering the worst impacts in terms of mental and physical injury (Walby and Myhill, 2004). Harm to children may begin in pregnancy and result in miscarriage, premature birth, low birth weight and children born with physical impairments (Lewis and Drife, 2005). While children's perspectives suggest that they experience such violence in different ways, extensive research reviews indicate that overall, they are more likely to be anxious and fearful and fare less well in terms of their developmental outcomes than children who have not experienced such violence (Kitzman et al, 2003; Rossman, 2001; Kolbo et al, 1996). This has been recognized by the Welsh Assembly which has stated that:

The wide adverse effects of living with domestic abuse for children must be recognised as a child protection issue. The effects can be linked to poor educational achievement, social exclusion and to juvenile crime, substance abuse, mental health problems, homeless and running away (Welsh Assembly Government, 2005).

However, domestic violence can also be life-threatening for children and their mothers, particularly on separation. There has been a common assumption in the family courts that once parents separate, children can safely have contact with a perpetrator-parent, without being harmed and that they are likely to suffer greater harm if denied contact with this parent (Re O (Contact: Imposition of Conditions) [1995] 2FLR:124). Yet homicide studies and research on serious case reviews have indicated that this can be the most dangerous time for some children, with at least 53 having been killed by their violent fathers during child contact visits between 1994-08 (Saunders, 2004; Ferguson, 2009). Over and beyond this a third of children will continue to be exposed to post-separation violence and harassment and threats such as threats to kill, usually associated with child contact arrangements and some will experience abduction by the violent parent (Aris et al, 2002; Humphreys and Thiara, 2003; Walby and Myhill, 2004).

Domestic violence and abusive parenting

The research indicates a high overlap between a perpetrator-parent's domestic violence and his abuse and neglect of children, ranging from between 30-60% for physical abuse (Edleson, l999) and 10-15% for sexual abuse (McGee, 2000; Radford et al, 1999). Serious case reviews and homicide studies also indicate that in the majority of cases the killings of children through extreme physical abuse are most commonly perpetrated by young violent fathers, when children are in their care (Brandon et al, 2006; Cavanagh et al, 2007). Neglect of infants and young children's basic physical health and developmental needs are also common when children when being looked after by a violent father and during child contact and these risks increase if the parent is also an alcohol or drug abuser or has mental health problems. In addition, neglect may be combined with extreme emotional cruelty and excessive control of children, including deliberate destruction of homework and cruelty to pets, physical confinement and prevention of access to normal children's activities outside the home towards older children (Mullender et al, 2002; Thiara, 2010). Some children from South Asian backgrounds may experience additional forms of abuse from violent fathers and their relatives including forced marriage.

However it should also be noted that much of this abuse will not have been disclosed either by the children themselves or by mothers to agencies prior to separation because of fear of the perpetrator-parent, or his family. This research evidence therefore highlights the significance of risk identification at the beginning of any proceedings related to applications for contact and residence in private proceedings.

Children's perspectives

In contrast to the common assumption that children will always wish for and benefit from contact with the other parent, the research indicates children who have lived with parental domestic violence on an ongoing basis, or have witnessed severe incidents or threats of violence are far less likely to want contact, because of their fears of what he might do and their own feelings of lack of safety for themselves and their mothers .This includes children who may be ordered to have contact with a violent parent at a supported or supervised contact centre. Children who have lived with ongoing violence for most of their lives are unlikely to feel any emotional attachment to the violent parent and feel only relief that they have separated and wish to be able to live their lives without fear. Other children may have conflicted feelings, but only desire contact when they can be certain that their fathers have changed sufficiently so that they and their mothers can be safe from the violence. (Mullender et al, 2002; Aris et al, 2002; McGee, 2000).

In summary parental domestic violence is now recognized as emotional abuse of the child (Dcsf 2010) which can have both short term and long term impacts on children. It is highly associated with abusive parenting and neglect of children's basic developmental and educational needs, and can in a minority cases pose extreme and lethal risks to children. It is also associated with other parental risks such as drug and alcohol misuse or mental health problems and risk of abduction children post-separation. Nor is parental domestic violence or associated other risks a minor issue for children in S.8 applications which come before the family courts. Although findings differ on the numbers affected, these range from 40-70% of all applications for contact or residence (Napo, 2002; Trinder et al, 2006). These safeguarding risks continue to challenge the current presumption that children will always benefit from contact or shared parenting post-separation and require effective safeguarding measures to be undertaken.


Although neglected in the past, Cafcass officers now play a key role in safeguarding the welfare of children through informing court decisions on parental applications. This key role has mainly developed since the implementation of Section 120 of the Children and Adoption Act (2002) in 2005, which required the courts to take account of harm to children through "seeing or hearing the ill-treatment of another," through domestic violence. The Children and Adoption Act 2006, S.7 also reinforced the need for safeguarding children in private law proceedings by stating that a risk assessment must be undertaken by an officer of the court, when parental harm to a child is suspected, before any orders are made by the court

Cafcass was initially slow to respond to their safeguarding role in private law practice and were regarded as focussing far too much on their role in obtaining agreement between parents in a key government inspection report (HMICA, 2005). However since then safeguarding and risk assessment procedures have been developed to improve practice in this area (Cafcass Safeguarding Frameworks, 2007, 2010). These were reinforced by a report from the Family Justice Council (2007) and subsequent practice directions from the President of the Family Division (Potter, 2008, 2009) on the procedures to be followed where domestic violence and related issues of harm to children were raised and that consent orders to agreements on arrangements between the parties should not be made unless the court was satisfied there was no risk of harm to the child.

As a consequence of these changes Cafcass officers are required to screen and make initial safeguarding checks for all parents making applications for contact or residence through seeking information from court forms (which now ask questions about domestic violence and other forms of harm) the police and children's social care services and their own records and from other agencies where necessary. They are also required to undertake a risk identification process following contact with the parties, prior to or soon after the first directions hearing. If risk/harm concerns are identified Cafcass officers must then advise the court for the need of risk assessment to be undertaken by Cafcass and possibly a S.7 welfare report.

The above processes, if followed effectively by Cafcass officers are essential to safeguard children and are necessary to inform court decisions and orders. They guard against parents being pushed into agreement-seeking processes such as mediation, inappropriately and which could put the children and their non-abusing parents at risk from unsafe court orders for contact or residence. In most circumstances the children concerned will not be under assessment by Children's Services, because they are only able to deal with the most extreme cases that come to their attention, due to under-resourcing, or because concerns only came to light on separation. Cafcass can therefore provide a key safeguarding service which cannot be provided by children's social care. If this role was withdrawn it is likely that many children would be put in harm's way through a lack of safeguarding measures as they have been in the past (Hester and Radford, l996; Radford et al, l999).


Since compulsory safeguarding measures were only introduced mid-2008, it is difficult to assess this question with any certainty. However, most Ofsted inspection reports of Cafcass local area private law services since 2009, have indicated improvements in safeguarding practices, although still suggesting considerable room for further progress (see for example Ofsted, 2009-10). A preliminary small-scale pilot study undertaken by the author of this paper with one Cafcass team, which covered a small county, found that there was considerable improvement in safeguarding practices as a result of the use of screening and risk identification and risk assessment processes compared with cases before these measures were made compulsory. This included an increase of cases where interim contact was prevented to allow for further investigation and assessment of concerns following the first directions hearing. There was also a reduction of recommendations for direct contact with a domestically violent parent in S.7 welfare reports, compared with cases before the measures were introduced. Children's views were also given more weight when they expressed fears of violent fathers (Harne, 2009). An executive summary of this research is attached to this submission. However, the research also showed that how well Cafcass officers were able to fulfil the safeguarding processes was affected by lack of staff hours and the limited amount of time in which they were expected to complete them. The continuous under-resourcing of Cafcass services is a therefore a key issue which needs to be addressed if children are to gain social justice and be prevented from experiencing further harm.

September 2010

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