Christmas is a time for rejoicing. A time for family celebrations and a time for giving. However, behind many closed doors, Christmas can be a difficult time for those who are victims of domestic violence. For children living in a home where there is violence, Christmas is not a time of celebration, but one of terror, as the family are together for an extended period of time.
Children living in households where domestic violence is happening are now identified as "at risk" under the Adoption and Children Act 2002. From 31 January 2005, Section 120 of this Act extended the legal definition of harming children to include harm suffered by seeing or hearing ill-treatment of others. This would include witnessing domestic abuse.
It follows that there are, sadly, many private children law proceedings which involve allegations of domestic abuse. Domestic abuse is a relevant factor in private children cases which must be dealt with when considering applications for contact and/or residence. Practice Direction (Residence and Contact Orders: Domestic Violence and Harm) [2008] 2 FLR 103, should be followed in all such cases where domestic violence is raised by the parties or otherwise and the following procedure followed:
-
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 relevant factual and welfare issues to be determined expeditiously and fairly.
If there are allegations of domestic violence in the context of private law proceedings which may have an effect on the outcome, each allegation must be adjudicated upon and found proved or not proved. In Re L, Dame Elizabeth Butler Sloss stated ‘It will be necessary to scrutinise such allegations which may not always be true or may be grossly exaggerated.’ Such scrutiny takes place by way of a finding of fact hearing to decide upon each disputed allegation and hear evidence. Finding of Fact hearings form an important part of the proceedings when domestic violence is alleged.
It was stated in Re H ‘domestic violence of itself cannot constitute a bar to contact. Each case must inevitably be decided on its facts. Domestic violence can only be one factor in a very complex equation. There will be contact cases in which it is decisive against contact. There will be others in which it will be peripheral.’
What can be noted from case law over the last 15 years, is that the weight the Court will place on domestic violence in making a decision on contact/residence turns on the facts of each individual case. There is no formula. There is no rule.
However, domestic violence is no longer a taboo subject. The Courts now have a heightened awareness of it’s existence and the severe impact it can have on children who are exposed to domestic violence between their parents or other partners. The change to the Adoption Act in placing children exposed to witnessing domestic violence as ‘at risk’ shows the shift in attitude and the recognition of the significant effect it can have on children. In the past, the Courts may have had a tendency to skim over allegations of domestic violence regarding them as issues effecting the adults only, not the children. The Courts are now obligated to tackle issues of domestic violence within the context of Children Act proceedings; deciding whether the allegations are proved or not proved. In the cases where the domestic violence is proved, the Judge then has the task of considering the seriousness of the domestic violence and the weight that should be placed on it in deciding the appropriate orders to make ‘...in a difficult and delicate balancing exercise of discretion.’ (Re L).
While domestic abuse peaks over the festive season, reports continue to be received throughout the year and police and their partner organisations strongly encourage reporting any incidents. In Gloucestershire there is a designated Domestic Violence Unit with specially trained Police.
The websites and help lines below can offer help and advice on how to stay safe and how to get access to emergency refuge accommodation. They can also offer advice and possibly a ‘way out’.
National Domestic Violence Freephone Helpline:
- To talk to someone in confidence for support, information or an emergency referral to temporary accommodation, contact the free 24 hour National Domestic Violence Helpline.
- Helpline: 0808 2000 247
- Website: www.nationaldomesticviolencehelpline.org.uk/
Gloucestershire Domestic Violence Support and Advocacy Project
Samaritans
Refuge
- Refuge is a national charity that provides emergency accommodation and support for women and children experiencing domestic violence.
- Website: www.refuge.org.uk
If you require any further advice or assistance, please contact: