Written evidence from Dr Lynne Harne,
Centre for Gender and Violence Research, School for Policy Studies,
University of Bristol (FC 44)
THE OPERATION OF THE FAMILY COURTS
EXECUTIVE SUMMARY
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
1. BACKGROUND
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.
2. THE ROLE
OF CAFCASS
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).
3. HAS CAFCASS
MADE A
DIFFERENCE TO
SAFEGUARDING CHILDREN
IN THIS
AREA?
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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