The court’s primary responsibility is to safeguard the child from harm, with the child’s welfare being its paramount concern. Difficulties arise when the court must balance the need for the child to have a relationship with both parents against the necessity of protecting them from any form of harm or abuse.
Statistics provided within the Child Arrangements: The Family Court and Domestic Abuse (England and Wales), indicate that allegations of domestic abuse are raised in approximately 60% to 90% of all child arrangements cases. This raises concerns about whether victims are adequately protected, and highlights fears that perpetrators may use court proceedings to continue exerting control and causing harm through litigation. Victims felt that the family court proceedings had further empowered and strengthened the perpetrators of abuse. In their view, perpetrators had found that they could use the court process to inflict further harm on their victims.
When making decisions about a child, the court must give weight to the child’s wishes and feelings, assessed on their age and understanding. It is also required to consider the child’s physical, emotional, and educational needs. Practice Direction 12J applies to all family proceedings that involve decisions about where a child should live or contact arrangements with parents or other family members. Within Practice Direction 12J, abuse is broadly defined to include but not limited to physical or sexual abuse, violent or threatening behaviour, controlling or coercive conduct.
Victims and witnesses in cases involving allegations of abuse are offered special measures in court, a provision reinforced by the Domestic Abuse Act 2021. The Act clarifies that special measures are available to anyone who is, or may be, a victim of domestic abuse, thereby expanding access to these protections. Special measures can include steps such as preventing a witness from seeing another party, allowing participation via live video link, or providing separate waiting areas within the court.
Despite ongoing reviews of the procedures followed by family courts in private law children cases, there remains concern that these processes do not always adequately protect child and adult victims of domestic abuse from further harm.
If any of the above applies to you or someone you know, our Family department is here to help. Please contact us below or on 0208 049 5888.
