Thursday, 14 September 2017

Domestic Abuse and Children

The President of the High Court's Family Division has issued new directions *  to apply from 2 October 2017 on how judges (including magistrates) should deal with cases over child arrangements and contact where one party is alleging the other has been abusive and could cause harm to the child. 

The definition of domestic abuse is expanded to make it clear that the court can look at  culturally specific forms of alleged abuse including forced marriage, honour based violence, dowry-related abuse and transnational marriage abandonment (where a husband in England and Wales deliberately abandons or strands his foreign national wife abroad so as to prevent her from asserting matrimonial or residence rights here). 

Lawyers will be interested in this. The edict remains on an application for a consent order for the court to consider all the evidence and information available in deciding whether there is any risk of harm to the child. However, if an order is made after an oral s7 Children Act 1989 report has been provided then its substance must be noted in the court file and a summary scheduled in the order. And more work for the judge and any advocate draftsman where (a) at the First Hearing Dispute Resolution Appointment,  domestic abuse is raised as a relevant issue whereupon this should be recorded on the face of the order and (b) an admission of domestic abuse is made whereupon it is to be recorded in writing by the judge no less and scheduled in the order.

Pre fact-finding and where interim child arrangements are being considered, there is a strengthening of language with regard to the court’s approach with “the court should not make an..order unless..” As to ultimate findings of fact, the court is still to record those findings in writing but now in a schedule to its order.

* Family Procedure Rules 2010 Practice Direction PD12J