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'
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:
7% were age 6-10 (significantly
under represented, given this is one of the highest groups presented
to hospital A&E departments
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;
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<_>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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