Written evidence form Women’s Aid Federation of England (CFA0070)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

Women’s Aid submission to the House of Lords Select Committee on the Children and Families Act 2014

Women’s Aid Federation of England (Women’s Aid) is the national charity working to end domestic abuse against women and children. Over the past 47 years, Women’s Aid has been at the forefront of shaping and coordinating responses to domestic abuse through practice, research and policy. We empower survivors by keeping their voices at the heart of our work, working with and for women and children by listening to them and responding to their needs.  

We are a federation of over 170 organisations which provide just under 300 local lifesaving services to women and children across the country. We provide expert training, qualifications and consultancy to a range of agencies and professionals working with survivors or commissioning domestic abuse services, and award a National Quality Mark for services which meet our quality standards. We hold the largest national data set on domestic abuse, and use research and evidence to inform all of our work. Our campaigns achieve change in policy, practice and awareness, encouraging healthy relationships and helping to build a future where domestic abuse is no longer tolerated.  

Our support services, which include our Live Chat Helpline, the Survivors’ Forum, the No Woman Turned Away Project, the Survivor’s Handbook, Love Respect (our dedicated website for young people in their first relationships), the national Domestic Abuse Directory and our advocacy projects, help thousands of women and children every year.   

Women’s Aid welcomes the opportunity to submit evidence to the work of the Select Committee, which is considering whether the Children and Families Act 2014 has achieved its aim of improving the lives of children and families. In our submission we are focusing specifically on Section 11 of the Children and Families Act, which amended Section 1 of the Children Act 1989 by adding a new subsection (2A). This sub section refers to the presumption of parental involvement. It requires courts to presume that involvement of a parent in the child’s life will further the child’s welfare so long as that parent can be involved in a way that does not put the child at risk of suffering harm.

While Practice Direction 12J, the guidance for judges and magistrates in child contact cases where there are allegations of domestic abuse,[1] states that the impact of domestic abuse on children, and whether the presumption of parental involvement applies in such cases, should be carefully considered, there is a strong research evidence to demonstrate the existence of a ‘pro-contact’ culture within private family proceedings, where contact between the child and both parents is prioritised over child safety and welfare concerns, and the child’s own wishes and feelings.

Women’s Aid research illustrates the strength of this ‘pro-contact’ culture. Our 2017 study, conducted in partnership with Cafcass,[2] analysed a sample of 216 cases from the Cafcass electronic case management system. We found that more than two thirds of the cases in the sample involved allegations of domestic abuse, yet in 23 percent of these cases, unsupervised contact between a child and an alleged perpetrator of domestic abuse was ordered at the first hearing, and in 39 percent, unsupervised contact was ordered at the final hearing.

Research conducted by Women’s Aid in partnership with Queen Mary University London in 2018[3] also found clear evidence of this ‘pro-contact’ culture within private family proceedings, and the prioritisation of contact with both parents over concerns around child safety and welfare. In this research study, which is based on the experiences of 72 women survivors of domestic abuse, unsupervised contact, including overnight and weekend stays between a child and a parent who had been accused of domestic abuse, was by far the most common arrangement ordered. The study includes the following quotes from research participants:

“Obviously in an ideal world we would like the child to see both parents and have a happy, healthy relationship with both, but that’s not always the case. I don’t feel the court see that. They just want to put the child back together with the father at any cost – to the child.”

“All that the judge kept bringing up were the rights of the children to have contact with their father. Not the rights of children to have normal contact and not live in fear.”

“The Cafcass report said that my ex-partner would have contact with the children at weekends. Despite his abuse towards me being categorised as high risk, it was considered he was no risk to the children.”

“If a partner is abusive, how can you assume they’re going to be a good parent? How can you presume that behaviour doesn’t translate into other relationships, into the work environment, into a public place? Why wouldn’t it translate into parenting?”

Other research conducted as part of Women’s Aid’s Child First campaign[4] echoes these findings. A literature review conducted for the campaign,[5] covering over 140 documents, concluded that there is “strong evidence that in making arrangements for child contact when there is a history of domestic violence, the current workings of the family justice system support a pro-contact approach that neglects the safety needs of children and women, and the impact on them of previous or continuing domestic violence. This frequently exposes children and women to further violence, causes them significant harm, and prevents their recovery. For a substantial number of children, the privileging of men’s rights to contact over children’s welfare negatively affects every aspect of their wellbeing and development” (p. 2). The research identified in this review demonstrated that “all professional groups involved in the contact process start from a position in favour of contact and make considerable efforts to bring this about” (p. 8).

Similarly, our Nineteen Child Homicides report,[6] which tells the stories of 19 children who were killed by a parent who was also a perpetrator of domestic abuse, in circumstances relating to child contact between 2005 and 2015, highlighted a lack of consideration of how domestic abuse could pose a serious risk to children. Abuse towards the mother was often seen as a separate issue from the child’s safety and wellbeing, rather than the two being intrinsically linked.

In June 2020 the Ministry of Justice (MoJ) appointed an expert panel on assessing risk of harm to children and parents in private law children cases (the harm panel), which had been set up to look at the concerns about how domestic abuse and other forms of harm were considered in these cases, concluded in its final report[7] that it had “received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety” (p. 174). These detrimental effects were illustrated in evidence submitted to the panel by professionals, parents and young people alike, as the examples below, taken from the panel’s final report, demonstrate.

From professionals:

“In some cases there appears to be a presumption that the parental rights of the father override the wishes and feelings of the child. In several cases, CAFCASS workers and social workers have seemed to regard it as their role to persuade the child to agree to contact with their father, irrespective of the father’s behaviour (this includes cases where the father has been convicted of offences related to domestic abuse) and of the stated wishes of the child.” (Therapist)

From young people:

“The presumption of contact, it’s not helpful at all. I mean it’s putting parents’ rights above children. At the end of the day unless children can look after themselves and defend themselves, it’s putting them in a situation where they are at risk of harm, emotional and physical.” (Family Justice Young People’s Board participant)

From parents:

“This is a very dangerous piece of legislation. The father of my children is a harmful, aggressive, controlling man. … This needs to be looked at carefully. It is not correct to assume, before investigation, that somebody will further a child’s welfare just because they share his/her genes.” (Mother)

The literature review[8] that accompanied the harm panel’s report found that “studies undertaken over the past 12 years reveal that judges, lawyers and child welfare professionals all operate on the presumption that there should be contact [between a child and both parents] unless there are overwhelming reasons to the contrary, and that courts ‘bend over backwards’ to try to achieve this, even in circumstances of proven domestic abuse” (p. 59).

It points out that while Section 1(1) of the Children Act 1989 states that the child’s welfare should be court’s paramount consideration (the ‘welfare principle’), there is a strong body of evidence showing that “in England and Wales and in many other jurisdictions the ‘pro-contact’ culture of the family courts means that they strongly promote ongoing relationships between children and both their parents following separation” and the existence of a “strong assumption that children need contact with non-resident fathers for their emotional, psychological and developmental health” (p. 54). The ‘welfare principle’ has been interpreted in case law “almost solely in terms of the child’s ‘need’ to maintain contact with non-resident parents” which resulted in “a de facto ‘presumption of contact’.” (p. 54).

Evidence identified by the literature review shows that the statutory presumption has not changed the way courts decide cases, as they continue to rely on case law to support their strong preference for contact. However, in the lower courts there is some evidence to show that the statutory presumption is being used to pressure on mothers to agree to contact which is damaging to children (p. 58). The review contain the details of “numerous socio-legal studies [that] have identified how a strong presumption of contact has led to domestic abuse being marginalised within private law children proceedings, which may conflict with a focus on protecting children from harm” (p. 56).

For several years Women’s Aid has been calling for action to address the detrimental effects of the presumption and its interpretation in private law children proceedings. During the passage of the Domestic Abuse Act, we worked with cross-party parliamentarians to put forward proposals to amend the presumption so that it would not apply in any cases involving allegations of domestic abuse or other forms of serious harm.[9] Unfortunately these amendments were not made. In response to the recommendations of the harm panel in 2020, that a review of the presumption of parental involvement was needed urgently in order to address its detrimental effects, the government began a review of the presumption.[10] However, almost two years later, this review has not been completed. It is expected to conclude in autumn this year.

Women’s Aid strongly believes that this section of the Children and Families Act 2014 is not fit for purpose, and is causing harm to many survivors of domestic abuse and their children. It should be urgently amended to ensure that it is not applied in cases involving domestic abuse and other forms of harm.
 

Case study examples

Below are case study examples demonstrating the detrimental impact of the presumption of parental involvement and the pro-contact culture surrounding it. These are by no means isolated cases, but are simply illustrative of the examples that we, and our member services, hear about from survivors of domestic abuse every week. Further examples will be included in a report we will publish in June 2022, to mark the second anniversary of the publication of the harm panel’s report.

Case study evidence from Solace Women’s Aid

A service user called the advice line of one of Solace Women’s Aid during the week commencing 8th June 2020. She was going through a child contact hearing, but there was also a separate criminal investigation of child sexual abuse from the child’s father.

In December 2019, in a hearing where both parties were unrepresented, allegations were made that the father has sexually abused his seven year old daughter. This involved exposure of his genitals and sucking her toes and fingers when she was in bed or getting changed. The father admitted this.

The judge said that if the father stopped doing this, he could continue unsupervised contact with his daughter. The judge commented that when he was a barrister, he was successful in ensuring that a convicted paedophile client could have unsupervised access to his children, and that he believed such clients should be able to see their children.

The mother tried to tell the judge that the father has a history of domestic abuse, but the judge replied that she did not look like a victim of domestic abuse. He said the father’s behaviour sounded like “a man losing his temper, not domestic violence”. The judge dismissed requests for the contact between father and daughter to be supervised.

In January 2020, allegations were made that the father had sexually assaulted his daughter by penetration during a contact visit. The criminal investigation around child sexual exploitation is ongoing but unsupervised contact is still ordered.

Case study evidence from the University of Bristol

The examples below have been provided by Professor Marianne Hester, from the Centre for Gender and Violence Research at the University of Bristol. It comes from a survivor interviewed as part of Professor Hester’s research project on gender-based violence and justice. They involve issues that were replicated in many of the project’s interviews.

Case study 1:

Following domestic abuse from her husband that included physical and emotional violence, coercive control and manipulation, Christine and her two children of six and eight left him. They did not hear from him for a year, but he then filed for child contact. The case was heard over two years because the children did not want to see their father.

Christine’s ex-husband had full legal aid, but she did not and she represented herself. There was going to be a finding of fact hearing but her ex-husband’s solicitor persuaded her to come to an agreement instead. Her husband agreed he had been violent on only three occasions. Supervised contact at a contact centre was arranged following Cafcass reports. However Christine’s daughter, aged eight, refused to go in to the centre. The family court instead ordered unsupervised contact in the community, but the daughter continued to refuse to go. Contact was increased further to take place at her father’s house, although Christine’s daughter continued to refuse: “She refused to go there, I had to drop her off and she’d sit in the car screaming and kicking and fighting for up to two hours each week. If I managed to drag her out of the car she’d run away down the street and we’d have to drag her back.

The hearings continued, and Christine was told by the family court judge that if she did not get her daughter to attend contact with her father she would be in contempt of court. But the daughter continued to refuse to see her father, and further court hearings continued to increase the contact. This eventually resulted in a shared care order, where both children were with their father every other weekend and one night in the week in term time, and 60% of holiday time. Both children have returned from contact with physical injuries, which have been reported to the police, but the family court continues to insist on contact. Christine’s daughter is now saying that she wants to kill herself and would be better off dead than having to see her father. Christine’s son’s behaviour has also deteriorated, and he is exhibiting behavioural problems and aggression.

Case study 2:

Andra experienced six years of domestic abuse from her husband, consisting of physical and sexual violence, coercive control, and isolation from family and friends. It began when she was pregnant with her son. Her husband was also violent to her son. By the time the son was six he was being affected by the abuse to his mother and to him, and the school called Andra in to talk with her about his increasingly aggressive behaviour. She decided to leave the relationship at this point, and contacted Women’s Aid for advice.

The police got involved because the husband threatened suicide when Andra left. The police realised that it was a domestic abuse situation, assessed Andra at high risk, and advised her to get a non-molestation order and prohibited steps order. She decided not to pursue criminal charges.

Family proceedings took place over two years. There was a finding of fact hearing after the first three months, where five assaults against the son and one towards Andra were recorded from evidence in witness statements, medical records and a pain psychologist.

Andra’s husband was ordered by the family court to attend anger management and counselling with regard to his abusive behaviour, but did not comply. Contact was ordered at the same time to take place once a week between the husband and son at a contact centre. The case was heard again a number of times during 18 months of non-compliance by Andra’s husband and contact continued once a week during this period. 

Andra’s son’s behaviour began to deteriorate following contact visits, and after nine months he was being incontinent every day and screaming a lot. Her son disclosed to CAFCASS and a psychologist that he was being threatened by his father on contact. Contact still continued. Following a further three months Andra’s solicitor advised her to stop the contact due to the threats being made against the son by his father. The case was heard again in the family court, and contact was ordered to restart as the judge thought Andra was stopping it ‘out of spite’. Andra’s son continues to have behavioural problems and has developed Post Traumatic Stress Disorder.

April 2022

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