Legislative Scrutiny: Children, Schools and Families Bill; other Bills - Human Rights Joint Committee Contents


Memorandum submitted by Cafcass (JCHR Legislative Scrutiny Priorities for 2010, Priority 3: Domestic Violence)

  1.  Cafcass is tasked with safeguarding children whose families are involved in public and private law applications before the Court.[61] Domestic violence is raised as an issue in a substantive number of the cases we work with, either as the main issue or in conjunction with other difficulties.

  2.  We recognise that the Bill brings a tension between Articles 2, 3, 6 and 8 Human Rights Act. In placing the child's needs as paramount, we prioritise action that aims to create a safe place for the child in the first instance, and so place Articles 2 and 3 higher than Articles 6 and 8. Instant decisions regarding fault will sometimes be difficult to make. However, the consequences of leaving an abusive parent in the home can be catastrophic. From a safeguarding perspective we welcome action that removes one party so that the immediate priority can be the safety of the victim and/or children, whilst still allowing for neutral action to be taken in the ensuing Police investigation. We expect that the police would continue to carry out a thorough investigation and that collecting of evidence will take place as a matter of course to facilitate longer-term enquiries.

  3.  Research informs us that some of the most risky cases considered at Serious Case Reviews have a combination of domestic violence, mental health issues and alcohol and substance abuse and that many cases concern families where children are under five years of age, presumably pre-school children who would be at home all the time [see Appendix 1]. We should take steps to minimise the exposure these children have to domestic violence as a priority. We refer you to the Cafcass Domestic Violence Toolkit and in particular Chapter 3 which considers the child's experience. An extract from Chapter 3 can be found at Appendix 2.

  4.  In considering the child's experience of domestic violence, Cafcass recognises that domestic violence is more often and most seriously inflicted by men on women although it can be women on men, people in a same gender-relationship, and inter-generational. Our assessment model emphasises the importance of being open to all possibilities. Police have to make a judgement at the time of a callout about who has been abusive and who is the victim. We appreciate that this is sometimes difficult where there is no hard evidence, however we welcome the "Go Order" measures that enable an instant decision to be made that can provide safety to a child who is suffering as a result of being directly or indirectly affected by domestic abuse in the family.

  The remainder of this submission considers articles 2, 3, 6 and 8, focussing on the risks to the child. The appendices contain research and resources which may be of interest to the Committee.

Consideration of the child in cases where this legislation may be used against Article 2: Right to Life

  Children die as a result of domestic abuse by

    — Direct and intentional physical abuse as a foetus

    — Direct and intentional physical abuse as a child

    — Unintentional physical abuse by becoming directly involved in the incident

    — Unintentional physical abuse by virtue of being in the vicinity of abuse taking place

    — Self-harm as a result of witnessing domestic abuse in the family.

Consideration of the child in cases where this legislation may be used against Article 3: Prohibition of Torture

    — Direct and intentional physical abuse as a foetus.

    — Direct and intentional physical abuse as a child-child abuse is present in a significant number of known cases in which domestic abuse has been raised as an issue.

    — Unintentional physical abuse by becoming involved in the incident

    — Some children take direct action such as standing between parents

    — Some victim parents pick up small children for protection in the hope that the abuse will stop

    — Some children behave badly to draw attention to themselves so that they can distract their parents from the domestic incident.

    — Unintentional physical abuse by virtue of being in the vicinity of abuse taking place.

    — Self-harm as a result of witnessing domestic abuse in the family.

    — Witnessing the murdering of a parent.

    — Degrading treatment includes seeing ill-treatment of the victim parent by the abusive parent.

    — Ill-treatment that could be considered to amount to torture is caused to a powerless and vulnerable child from witnessing:

    — the distress caused to the victim parent

    — the victim parent in a position of powerlessness

    — the victim parent self-harm as a result of the situation.

  The child would not necessarily need to be in the room for this to have effect.

    — Children who witness from another room often imagine the worst is happening, ie that someone is going to be killed

    — Children who have not been at home when the abuse took place will see signs,

    — in their parents' physical demeanour,

    — such as bruises or cuts in the parents'

    — the house in disarray

    — in the atmosphere.

  Degrading treatment includes the child hearing derogatory and abusive comment about him/herself. Children are sometimes punished or are forced to commit certain acts as a punishment in this situation. Bearing in mind that these are often both the child's parents or caregivers and the child may have some sense of loyalty to both, through:

    — hearing derogatory and abusive comment about the victim parent

    — hearing derogatory and abusive comment about the abusive parent.

  Children are sometimes punished for taking the side of the victim parent. Children become involved in the power and control battle by the abusive parent to the extent sometimes of being encouraged to side with the abusive parent and engage in the abuse of the victim parent. The degrading emotional impact of this extends into adulthood.

    — Children witness abusive parents threatening self-harm, or actually killing or harming themselves as a way of manipulating the situation.

    — Children can suffer degrading treatment in the hands of a victim parent whose parenting and coping strategies have been disabled or destroyed by the abuse suffered.

Consideration of the child in cases where this legislation may be used against Article 6 (1): Right to a Fair Trial

    — Whichever parent is given the "Go Order" there will be a concern that this establishes the status quo in terms of who has been the unreasonable parent. Domestic violence is difficult to prove as hard evidence is not readily available where, for example, threats to kill have been made. This is compounded by a reluctance (for various reasons) to report earlier incidents.

    — A victim parent may be mistaken for an abusive parent, and be given the "Go Order". Our concern is firstly on the safeguarding issues of a child left with an abusive parent. Such action could also hamper the right to a fair trial, as the effect of the previous abuse, compounded with being mistaken for the abusive parent, may "tip" the victim parent to believing that a thorough and neutral investigation will not happen, and seeing future efforts as futile.

    — The Family Court system allows for later determinations to be made by the Judiciary through a Findings of Fact hearing.

Consideration of the Child in cases where this legislation may be used against Article 8: Right to Respect for Private and Family Life

  If the abusive parent were given the "Go Order", contact would become an issue for the child with the absent parent. Witnessing domestic violence causes children to feel afraid and confused. The child can benefit from having no contact during a recovery time while decisions are made about next steps.

  If the non-abusive parent were given the "Go Order" the abusive parent may further the abuse by persuading the child that the victim parent does not care, is actually the abusive parent etc. This could mean that future contact and the relationship with the absent parent becomes problematic.

  If there had been exaggeration/false allegation prompting the making of the "Go Order", and there was no risk, the child would be confused, and could be at risk of losing contact with their parent.

  It is our view that a safeguarding approach is essential where domestic violence is raised as an issue. In the circumstance of the police making a "Go Order" we would suggest the child remains in the care of the victim rather than the abuser, provided that the victim parent can meet the needs of the child.

  Final comment from a child:

    …they should be taken away because a mum or child wouldn't call 999 just to get a dad taken away for no reason.

    (Louis, young people's focus group)[62]

Annex 1

BIENNIAL SERIOUS CASE REVIEW REPORT: 2003-05 BRANDON, M ET AL, DCSF (JAN 2008)

SUMMARY OF FINDINGS

Analysing child deaths and serious injury through abuse and neglect: What can we learn? A biennial analysis of serious case reviews 2003-05

  Marion Brandon, Pippa Belderson, Catherine Warren, David Howe, Ruth Gardner, Jane Dodsworth, Jane Black

  161 serious case review included in the study.

  Of which:

    — 12% were on the child protection register

    — 55% were known to social services

    — 16% related to head injuries to babies

    — 21% featured neglect (strict definition of neglect used for the study)

    — 30% were living in poor living conditions

  In relation to age breakdown for the 161:

    47% were under 1

    20% were age 1-5

    — 7% were age 6-10 (significantly under represented, given this is one of the highest groups presented to hospital A&E departments

    — 15% were age 11-15

    — 9% were 16 plus (mainly suicides)

  Out of the 161, 47 were looked at in more detail. In these cases:

    — Domestic violence was present in 66%

    — Mental health was present in 55%

    — Substance misuse was present in 57%

  In addition the report found that in 1 in 3 cases of the 47 detailed cases, all three of these factors were present.

  The full report (DCSF-RB023) can be accessed at www.dcfs.gov.uk/research/

Annex 2

EXTRACT FROM CHAPTER 3 OF CAFCASS' DOMESTIC VIOLENCE TOOLKIT

1.  UNDERSTANDING THE CHILDREN'S EXPERIENCE OF DOMESTIC VIOLENCE

INTRODUCTION

  1.1  This section is a tool to assist staff to enhance their understanding of a child's experience of living with domestic violence and the behaviour this may cause them to demonstrate. The guidance explores the child's experience of:

    — The extent and level of abuse they have experienced or witnessed;

    — Her/his understanding of the behaviour, and;

    — Her/his communication about abuse/violence;

    — Her/his diversity.

UNDERSTANDING A CHILD'S EXPERIENCE OF PROBLEMS AT HOME

Context

  1.2  A child living with domestic violence is in an impossible situation in which her/his needs cannot be met. There may be an atmosphere of unpredictability and fear. The child may be hyper-vigilant for any signs of tension, raised voices and where it is a factor, signs for alcohol or drug abuse. What happens in the family may be kept secret and a child may feel at risk should they choose to disclose it or fear the wider consequences of family instability.

  1.3  A child living with domestic violence is likely to be affected by fear, distress, and disruption in their family lives even if they are not directly abused. This is recognised in the extended definition of harm in the Adoption and Children Act (2002).

  1.4  A child who has been living in violent or abusive circumstances for some time is likely to have learnt about the "trigger" points in her/his parent's relationship and the tension and violence which can result.

Implications

  1.5  A child will react in different ways to the violence they have witnessed or experienced depending on their personal resilience and support. Some children may appear to be "matter of fact" about the abuse. Research indicates[63] that some older children who may have more experience of abuse can display more knowledge and personal resources to help them make sense of what is happening.

  1.6  The complex mix of emotions which the child may experience includes:

    — A sense of guilt about the abuse between their parents;

    — Difficulties with their sense of identity;

    — Blaming parents and modelling inappropriate behaviour;

    — Difficulty understanding parenting and a sense of divided loyalty between their parents.

    — (See section 4 of this toolkit for further information on the impacts on children)

THE OVERLAP BETWEEN DOMESTIC VIOLENCE AND CHILD ABUSE[64]

  1.7  Over recent years there has been a growing body of research on domestic violence, which has looked into the overlap between adult violence and child abuse.[65] The research indicates that the links are substantial and could be between 30 and 60%.[66] The child can be at risk of injury if they get in the way of an attack or try to intervene. According to research undertaken in the London Borough of Hackney[67] at least a third of children on the Child Protection Register were found to have mothers who are being abused in the home. Research by Cleaver and Freeman[68] supports this figure. They found that when a visit was made as a result of a child protection referral to social services the rate of domestic violence was at 40%. Similarly, research by Hunt et al[69] found that for children subject to care proceedings, domestic violence was a factor in 51% of cases coming to court.[70]

  1.8  Evidence from research involving court files indicates that nearly 25% of private law contact cases involve allegations of domestic violence/abuse.[71] When monitoring private law applications, Cafcass Service Managers and the Court Service have found higher rates of allegations.

  1.9  The trade union and professional association for family court and probation staff (NAPO) undertook a survey of the work of Cafcass in contested residence and contact cases. The study found:

    — Out of the 300 cases involved, 77% (230 cases) featured allegations of domestic violence.

    — In 61% of cases allegations were made against the male partner and against the female partner in 16% of cases.

    — In 24% of the 300 cases (73 cases) the allegations were admitted or established as fact. (Although NAPO suggest that it is likely that the true figures will be higher).

UNDERSTANDING HOW A CHILD MAY COMMUNICATE ABOUT PROBLEMS AT HOME

  1.10  Lack of effective communication can be a major barrier to a child getting the help s/he needs. There may be a shared desire to protect one another or secrecy and shame surrounding problems, parents may also find it hard to know how to talk to a child, and feel too upset themselves to talk about problems. Children who participated in studies on domestic violence[72],[73] stressed in particular, that they wanted their parents to talk to them more. A failure to talk to the child may actually perpetuate her/his confusion and isolation and lead to misunderstandings.

  1.11  It is likely that a child will use informal sources of support. A child is likely to turn to parents (usually mothers) and friends, then siblings, grandparents or pets. Support may come in the form of talking or spending time with someone and feeling safe. Children say that they want to talk to someone who they trust, who will listen to them and provide reassurance and confidentiality. Boys may find it harder to talk about problems and are more likely to leave talking to someone until nearer crisis point than girls.[74]


61   See our website http://www.cafcass.gov.uk/about<&lowbar;>cafcass.aspx for more information on our role and remit. Back

62   Children and families experiencing domestic violence: Police and children's social services' responses Nicky Stanley, Pam Miller, Helen Richardson Foster and Gill Thomson January 2010 www.nspcc.org.uk/inform Back

63   A. Mullender et al (2003) Children's Perspectives on Domestic Violence. Back

64   Humphreys, C & Stanley, N (eds) Domestic Violence and Child protection: directions for good practice Jessica Kingsley (2006) Back

65   Hester, M., Pearson, M. & Harwin,N. with Abrahams, H. (2006) "Making an Impact" Back

66   (Edleson, J. (1999) Children's witnessing of adult domestic violence, Journal of Interpersonal Violence 14 839-870). Back

67   Hackney Council Press & Publicity Team (1993), The links between domestic violence and child abuse: developing services, London. Back

68   H. Cleaver et al (1999) Children's Needs-Parenting Capacity The impact of parental mental illness, problem alcohol and drug use, and domestic violence on children's development. Back

69   Hunt. J et al (2000) The last resort: Child protection, the courts and the 1989 Act, London: HMSO Back

70   H. Cleaver et al 1999 op. cit. at 7 Back

71   Smart C, May V, Wade A and Furniss C (2003) "Residence and Contact Disputes in Court", Centre for Research on Family, Kinship & Childhood, University of Leeds Back

72   A. Mullender et al (2003) Children's Perspectives on Domestic Violence. Back

73   Joseph Rowntree Foundation (JSF) (2004)-Ref 51,4: "Understanding what children say about living with domestic violence, parental substance misuse or parental health problems." http://www.jrf.org.uk/knowledge/findings/socialpolicy/514.asp Back

74   JSF Report op. cit. at 11 Back


 
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