Practice Direction: Residence & Contact Orders: Domestic Violence
& Harm
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Practice Direction: Residence & Contact Orders: Domestic Violence
& Harm
Revised Practice Direction superseding guidance
first issued on 14 May 2008
14 January
2009
The
Practice Direction issued on 9 May 2008 is re-issued in the following revised
form to reflect the decision of the House of Lords in Re B (Children) [2008]
UKHL 35, in which Baroness Hale confirmed (at [76]) that a fact-finding
hearing is part of the process of trying a case and is not a separate exercise
and that where the case is then adjourned for further hearing it remains part
heard. This principle applies equally in private law and public law family
cases. Paragraphs 15 and 23 of the Practice Direction have been amended to
reinforce this principle.
1.
This Practice Direction applies to any family
proceedings in the High Court, a county court or a magistrates’ court in which
an application is made for a residence order or a contact order in respect of a
child under the Children Act 1989 (“the 1989 Act”) or the Adoption and Children
Act 2002 (“the 2002 Act”) or in which any question arises about residence or
about contact between a child and a parent or other family member.
2.
The practice set out in this Direction is to be
followed in any case in which it is alleged, or there is otherwise reason to
suppose, that the subject child or a party has experienced domestic violence
perpetrated by another party or that there is a risk of such violence. For the
purpose of this Direction, the term ‘domestic violence’ includes physical
violence, threatening or intimidating behaviour and any other form of abuse
which, directly or indirectly, may have caused harm to the other party or to
the child or which may give rise to the risk of harm.
(‘Harm’ in relation to a child means ill-treatment or the impairment of health
or development, including, for example, impairment suffered from seeing or
hearing the ill-treatment of another: Children Act 1989, ss
31(9),105(1))
General principles
3.
The court must, at all stages of the proceedings,
consider whether domestic violence is raised as an issue, either by the parties
or otherwise, and if so must:
·
identify at the earliest opportunity the factual
and welfare issues involved;
·
consider the nature of any allegation or admission
of domestic violence and the extent to which any domestic violence which is
admitted, or which may be proved, would be relevant in deciding whether to make
an order about residence or contact and, if so, in what terms;
·
give directions to enable the relevant factual and
welfare issues to be determined expeditiously and fairly.
4.
In all cases it is for the court to decide whether
an order for residence or contact accords with Section 1(1) of the 1989 Act or
section 1(2) of the 2002 Act, as appropriate; any proposed residence or contact
order, whether to be made by agreement between the parties or otherwise must be
scrutinised by the court accordingly. The court shall not make a consent order
for residence or contact or give permission for an application for a residence
or contact order to be withdrawn, unless the parties are present in court,
except where it is satisfied that there is no risk of harm to the child in so
doing.
5.
In considering, on an application for a consent
order for residence or contact, whether there is any risk of harm to the child,
the court shall consider all the evidence and information available. The court may
direct a report under Section 7 of the 1989 Act either orally or in writing
before it makes its determination; in such a case, the court may ask for
information about any advice given by the officer preparing the report to the
parties and whether they or the child have been referred to any other agency,
including local authority children’s services. If the report is not in writing,
the court shall make a note of its substance on the court file.
Issue
6. Immediately
on receipt of an application for a residence order or a contact order, or of
the acknowledgement of the application, the court shall send a copy of it,
together with any accompanying documents, to Cafcass
or Cafcass Cymru, as
appropriate, to enable Cafcass or Cafcass
Cymru to undertake initial screening in accordance
with their safeguarding policies.
Liaison
7. The
Designated Family Judge, or in the magistrates’ court the Justices’ Clerk,
shall take steps to ensure that arrangements are in place for:
·
the prompt delivery of documents to Cafcass or Cafcass Cymru in accordance with paragraph 6
·
any information obtained by Cafcass
or Cafcass Cymru as a
result of initial screening or otherwise and any risk assessments prepared by Cafcass or Cafcass Cymru under section 16A of the 1989 Act to be placed before
the appropriate court for consideration and directions
·
a copy of any record of admissions or findings of
fact made pursuant to paragraphs 12 & 21 below to be made available as soon
as possible to any Officer of Cafcass or Welsh family
proceedings officer or local authority officer preparing a report under section
7 of the 1989 Act.
Response of the court on receipt
of information
8.
Where any information provided to the court before
the first hearing, whether as a result of initial screening by Cafcass or Cafcass Cymru or otherwise, indicates that there are issues of
domestic violence which may be relevant to the court’s determination, the court
may give directions about the conduct of the hearing and for written evidence
to be filed by the parties before the hearing.
9.
If at any stage the court is advised by Cafcass or Cafcass Cymru or otherwise that there is a need for special
arrangements to secure the safety of any party or child attending any hearing,
the court shall ensure that appropriate arrangements are made for the hearing
and for all subsequent hearings in the case, unless it considers that these are
no longer necessary.
First hearing
10. At the
first hearing, the court shall inform the parties of the content of any
screening report or other information which has been provided by Cafcass or Cafcass Cymru, unless it considers that to do so would create a
risk of harm to a party or the child.
(Specific provision about service of a risk assessment under section 16A of
the 1989 Act is made by the Family Proceedings Rules 1991, r 4.17AA and by the
Family Proceedings Courts (Children Act 1989) Rules 1991, r
17AA.)
11. The court
must ascertain at the earliest opportunity whether domestic violence is raised
as an issue and must consider the likely impact of that issue on the conduct
and outcome of the proceedings. In particular, the court should consider
whether the nature and effect of the domestic violence alleged is such that, if
proved, the decision of the court is likely to be affected.
Admissions
12. Where at
any hearing an admission of domestic violence to another person or the child is
made by a party, the admission should be recorded in writing and retained on
the court file.
Directions for a fact-finding hearing
13. The court
should determine as soon as possible whether it is necessary to conduct a
fact-finding hearing in relation to any disputed allegation of domestic
violence before it can proceed to consider any final order(s) for residence or
contact. Where the court determines that a finding of fact hearing is not
necessary, the order shall record the reasons for that decision.
14. Where the
court considers that a fact-finding hearing is necessary, it must give
directions to ensure that the matters in issue are determined expeditiously and
fairly and in particular it should consider:
·
directing the parties to file written statements
giving particulars of the allegations made and of any response in such a way as
to identify clearly the issues for determination;
·
whether material is required from third parties
such as the police or health services and may give directions accordingly;
·
whether any other evidence is required to enable the court
to make findings of fact in relation to the allegations and may give directions
accordingly.
15. Where the
court fixes a fact-finding hearing, it must at the same time fix a further
hearing for determination of the application. The hearings should be arranged
in such a way that they are conducted by the same judge or, in the magistrates’
court, by at least the same chairperson of the justices.
Reports under Section 7
16. In any
case where domestic violence is raised as an issue, the court should consider
directing that a report on the question of contact, or any other matters
relating to the welfare of the child, be prepared under section 7 of the 1989
Act by an Officer of Cafcass or a Welsh family
proceedings officer (or local authority officer if appropriate), unless the
court is satisfied that it is not necessary to do so in order to safeguard the
child's interests. If the court so directs, it should consider the extent of
any enquiries which can properly be made at this stage and whether it is
appropriate to seek information on the wishes and feelings of the child before
findings of fact have been made.
Representation of the child
17. Subject
to the seriousness of the allegations made and the difficulty of the case, the
court shall consider whether it is appropriate for the child who is the subject
of the application to be made a party to the proceedings and be separately
represented. If the case is proceeding in the magistrates’ court and the court
considers that it may be appropriate for the child to be made a party to the proceedings,
it may transfer the case to the relevant county court for determination of that
issue and following such transfer the county court shall give such directions
for the further conduct of the case as it considers appropriate.
Interim orders before
determination of relevant facts
18. Where the
court gives directions for a fact-finding hearing, the court should consider
whether an interim order for residence or contact is in the interests of the
child; and in particular whether the safety of the child and the residential
parent can be secured before, during and after any contact.
19. In
deciding any question of interim residence or contact pending a full hearing
the court should:
a.
take into account the matters set out in section
1(3) of the 1989 Act or section 1(4) of the 2002 Act ("the welfare
check-list"), as appropriate;
b.
give particular consideration to the likely effect
on the child of any contact and any risk of harm, whether physical, emotional
or psychological, which the child is likely to suffer as a consequence of
making or declining to make an order;
20. Where the
court is considering whether to make an order for interim contact, it should in
addition consider
a.
the arrangements required to ensure, as far as
possible, that any risk of harm to the child is minimised and that the safety
of the child and the parties is secured; and in particular:
i. whether
the contact should be supervised or supported, and if so, where and by whom;
and
ii. the
availability of appropriate facilities for that purpose
b.
if direct contact is not appropriate, whether it is
in the best interests of the child to make an order for indirect contact.
The fact-finding hearing
21. At the
fact-finding hearing, the court should, wherever practicable, make findings of
fact as to the nature and degree of any domestic violence which is established
and its effect on the child, the child’s parents and any other relevant person.
The court shall record its findings in writing, and shall serve a copy on the
parties. A copy of any record of findings of fact or of admissions must be sent
to any officer preparing a report under Section 7 of the 1989 Act
22. At the
conclusion of any fact-finding hearing, the court shall consider,
notwithstanding any earlier direction for a section 7 report, whether it is in
the best interests of the child for the court to give further directions about
the preparation or scope of any report under section 7; where necessary, it may
adjourn the proceedings for a brief period to enable the officer to make
representations about the preparation or scope of any further enquiries.
The court
should also consider whether it would be assisted by any social work,
psychiatric, psychological or other assessment of any party or the child and if
so (subject to any necessary consent) make directions for such assessment to be
undertaken and for the filing of any consequent report.
23. Where the
court has made findings of fact on disputed allegations, any subsequent hearing
in the proceedings should be conducted by the same judge or, in the
magistrates’ court, by at least the same chairperson of the justices.
Exceptions may be made only where observing this requirement would result in
delay to the planned timetable and the judge or chairperson is satisfied, for reasons
recorded in writing, that the detriment to the welfare of the child would
outweigh the detriment to the fair trial of the proceedings.
In all cases where domestic violence has occurred
24. The court
should take steps to obtain (or direct the parties or an Officer of Cafcass or a Welsh family proceedings officer to obtain)
information about the facilities available locally to assist any party or the
child in cases where domestic violence has occurred.
25. Following
any determination of the nature and extent of domestic violence, whether or not
following a fact-finding hearing, the court should consider whether any party
should seek advice or treatment as a precondition to an order for residence or
contact being made or as a means of assisting the court in ascertaining the
likely risk of harm to the child from that person, and may (with the consent of
that party) give directions for such attendance and the filing of any
consequent report.
Factors to be taken into account when determining
whether to make residence or contact orders in all cases where domestic
violence has occurred
26. When
deciding the issue of residence or contact the court should, in the light of
any findings of fact, apply the individual matters in the welfare checklist
with reference to those findings; in particular, where relevant findings of
domestic violence have been made, the court should in every case consider any
harm which the child has suffered as a consequence of that violence and any
harm which the child is at risk of suffering if an order for residence or
contact is made and should only make an order for contact if it can be
satisfied that the physical and emotional safety of the child and the parent
with whom the child is living can, as far as possible, be secured before during
and after contact.
27. In every
case where a finding of domestic violence is made, the court should consider
the conduct of both parents towards each other and towards the child; in
particular, the court should consider;
a.
the effect of the domestic violence which has been
established on the child and on the parent with whom the child is living;
b.
the extent to which the parent seeking residence or
contact is motivated by a desire to promote the best interests of the child or
may be doing so as a means of continuing a process of violence, intimidation or
harassment against the other parent;
c.
the likely behaviour during contact of the parent
seeking contact and its effect on the child;
d.
the capacity of the parent seeking residence or
contact to appreciate the effect of past violence and the potential for future
violence on the other parent and the child;
e.
the attitude of the parent seeking residence or
contact to past violent conduct by that parent; and in particular whether that
parent has the capacity to change and to behave appropriately.
Directions as to how contact is
to proceed
28. Where the
court has made findings of domestic violence but, having applied the welfare
checklist, nonetheless considers that direct contact is in the best interests
of the child, the court should consider what if any directions or conditions
are required to enable the order to be carried into effect and in particular
should consider:
a.
whether or not contact should be supervised, and if
so, where and by whom;
b.
whether to impose any conditions to be complied
with by the party in whose favour the order for contact has been made and if
so, the nature of those conditions, for example by way of seeking advice or
treatment (subject to any necessary consent);
c.
whether such contact should be for a specified
period or should contain provisions which are to have effect for a specified
period;
d.
whether or not the operation of the order needs to be
reviewed; if so the court should set a date for the review and give directions
to ensure that at the review the court has full information about the operation
of the order.
29. Where the
court does not consider direct contact to be appropriate, it shall consider
whether it is in the best interests of the child to make an order for indirect
contact.
The reasons of the court
30. In its
judgment or reasons the court should always make clear how its findings on the
issue of domestic violence have influenced its decision on the issue of
residence or contact. In particular, where the court has found domestic
violence proved but nonetheless makes an order, the court should always
explain, whether by way of reference to the welfare check-list or otherwise,
why it takes the view that the order which it has made is in the best interests
of the child.
31. This
Practice Direction is issued by the President of the Family Division, as the
nominee of the Lord Chief Justice, with the agreement of the Lord Chancellor.
The Right Honourable Sir
Mark Potter
President of the Family Division and Head of Family Justice
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