Domestic Violence.
Dealing with abusive exes when you have a child together can be a difficult thing to manage you are not alone.
A new update on IDVAs ( Independent Domestic Violence Advisers) and ISVA ( Adult Independent Sexual Violence Advisors ) Made on the 6th of April 2023 - A litigant is permitted to communicate any information, including filed evidence, relating to the proceedings to an IDVA or ISVA for the purpose of obtaining support or assistance in relation to the proceedings.
The High Court can, under its inherent jurisdiction, impose a civil restraint order on an IDVA or ISVA who repeatedly acts in a way that undermines the efficient administration of justice.
Sir Andrew McFarlane, President of the Family Division 6 April 2023
The full reading of the guidance can be found at the link below.
New update of IDVAs and ISVA Guidance from the president of the family court Lord Justice McFarlane.
There are methods to deal with having to engage with someone who has abused you in the relationship.
One of the best methods is the “grey rock method.”
Try to separate the other parent’s behaviour towards you and their behaviour towards your child and think about how that relationship is important to him/her. You are doing well if you are still making sure that relationship between the other parent and the child continues regardless of it all. You could request that communication is ordered through a co-parenting app only. We recommend the use of APP CLOSE. This way you can ask someone else to do the texting to limit your time spent trying to talk civilly with the other parent when they are hostile. Many of us parents who help other parents have also been in controlling relationships gaslighting, all of it.
There is a quote that goes "AS ACADEMIC EVAN STARK SAYS, COERCIVE CONTROL IS LIKE BEING TAKEN HOSTAGE AND TRAPPED IN A WORLD OF FEAR. WHILE COERCIVE CONTROL HAS BEEN A CRIMINAL OFFENCE SINCE 2015, THE FAMILY COURT IS STILL LAGGING." I know how awful it can be but when you are not in that relationship, you need to take back control of yourself and let them be the person they are. You don't have to forget but letting it go can take a huge weight off. We as a parent are adults and the child needs us to be that. We have to act as sponges to the abuse that we experience so it doesn't affect the child's thoughts on their parents.
If a parent is continuously abusive, Before you go to ignore them, you need to show that you tried and tried. Evidence is everything in cases where there is continued abuse.
There are many strategies that you can try. If these fail You could also get a non-molestation order and ask a third party to do handovers for the children. Ignoring without evidence will go against you so please make sure that you have all the evidence to show why you are this. In court, it will be for the children to have contact as it is for them not you and you must find a way to make sure the relationship is not disrupted for them and that you still do all you can to make the children/child available. Also NEVER and I cannot state this strongly enough use the word narcissist or any other words like this in a court without evidence of a diagnosis. You have to be seen to put your children's need to have their other parent in their lives despite your ex's behaviour towards you. Since you and the other parent are no longer together it can go against you that you are so affected by his words. They will likely want an assessment of you to see if you are pointing the children against the other parent. Ignoring is all well and good but according to the court, they will still want you to put that first and sort out other venues to communicate with the other parent, Asking the court to order the use of a co-parenting app is a good way to do that.
If the other parent raises parental alienation and the child is not going to the other parent at all because of the abuses that are a part of YOUR relationship with the other parent it can go horribly against you, so always be sure that you cover those areas and make sure you make the child available for any contact that has been ordered. Going no contact is all well and good but if you are not abiding by an order that won’t be great.
Another thing you could do is to look to see if you can get on any classes for assertiveness. Being assertive is a great skill to master and it's because you essentially remove the emotions from situations, which makes it hard for people to manipulate you. You can find some good resources online, also try to set yourself realistic boundaries that work for you, if the other parent crosses them stop engaging.
If they are bombarding, just don't respond, sometimes people enjoy the fight rather than the issue they are fighting for so take the fight away.
If the message simply replies with please correspond by the app, and then doesn't answer again no matter what they put, once they use the app then reply, but don't engage in any other way, They will do it once they realise there is no other option and you're not going to give in.
There are many courses on here this page is connected to this group and you can do as many courses as possible as a head start. But yes, a court can and often does order that you attend courses. The Sollihill approach is one that's used by social workers and is recognised by the courts. ESCAPE
The way a court works regarding cases where domestic violence is involved can be seen below. Remember this is a process.
PRACTICE DIRECTION 12J - CHILD ARRANGEMENTS & CONTACT ORDERS: DOMESTIC ABUSE AND HARM
PRACTICE DIRECTION 12J – CHILD ARRANGEMENTS AND CONTACT ORDERS: DOMESTIC ABUSE AND HARM This Practice Direction supplements FPR Part 12, and incorporates and supersedes the President's Guidance in Relation to Split Hearings (May 2010) as it applies to proceedings for child arrangements orders.
Contents of this Practice DirectionTitleNumberSummaryPara. 1General principlesPara. 4Before the FHDRAPara. 9First hearing/ FHDRAPara. 11AdmissionsPara. 15Directions for a fact-finding hearingPara. 16Reports under Section 7Para. 21Representation of the childPara. 24Interim orders before determination of relevant factsPara. 25The fact-finding hearingPara. 28In all cases where domestic violence or abuse has occurred or other hearing of the facts where domestic abuse is allegedPara. 32Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic violence or abuse has occurredPara. 35Directions as to how contact is to proceedPara. 38The reasons of the courtPara. 40
Summary
1
This Practice Direction applies to any family proceedings in the Family Court or the High Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.
2
The purpose of this Practice Direction is to set out what the Family Court or the High Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.
3
For the purpose of this Practice Direction –
“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;
“abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;
“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;
“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;
“health” means physical or mental health;
“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical; and
“judge” includes salaried and fee-paid judges and lay justices sitting in the Family Court and, where the context permits, can include a justices’ legal adviser in the Family Court.
General principles
4
Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.
5
The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment ('FHDRA'), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must –
identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.
6
In all cases it is for the court to decide whether a child arrangements order accords with Section 1(1) of the Children Act 1989; any proposed child arrangements order, whether to be made by agreement between the parties or otherwise must be carefully scrutinised by the court accordingly. The court must not make a child arrangements order by consent or give permission for an application for a child arrangements order to be withdrawn, unless the parties are present in court, all initial safeguarding checks have been obtained by the court, and an officer of Cafcass or CAFCASS Cymru has spoken to the parties separately, except where it is satisfied that there is no risk of harm to the child and/or the other parent in so doing.
7
In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.
8
In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must 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 must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.
Before the FHDRA
9
Where any information provided to the court before the FHDRA or other first hearing (whether as a result of initial safeguarding enquiries by Cafcass or CAFCASS Cymru or on form C1A or otherwise) indicates that there are issues of domestic abuse which may be relevant to the court's determination, the court must ensure that the issues are addressed at the hearing, and that the parties are not expected to engage in conciliation or other forms of dispute resolution which are not suitable and/or safe.
10
If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.
First hearing/ FHDRA
11
At the FHDRA, if the parties have not been provided with the safeguarding letter/report by Cafcass/CAFCASS Cymru, the court must inform the parties of the content of any safeguarding letter or 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.
12
Where the results of Cafcass or CAFCASS Cymru safeguarding checks are not available at the FHDRA, and no other reliable safeguarding information is available, the court must adjourn the FHDRA until the results of safeguarding checks are available. The court must not generally make an interim child arrangements order, or orders for contact, in the absence of safeguarding information, unless it is to protect the safety of the child, and/or safeguard the child from harm (see further paragraphs 25-27 below).
13
There is a continuing duty on the Cafcass Officer/Welsh FPO which requires them to provide a risk assessment for the court under section 16A Children Act 1989 if they are given cause to suspect that the child concerned is at risk of harm. Specific provision about service of a risk assessment under section 16A of the 1989 Act is made by rule 12.34 of the FPR 2010.
14
The court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.
Admissions
15
Where at any hearing an admission of domestic abuse toward another person or the child is made by a party, the admission must be recorded in writing by the judge and set out as a Schedule to the relevant order. The court office must arrange for a copy of any order containing a record of admissions to be made available as soon as possible to any Cafcass officer or officer of CAFCASS Cymru or local authority officer preparing a report under section 7 of the Children Act 1989.
Directions for a fact-finding hearing
16
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 abuse –
(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;
(b) in order to provide a basis for an accurate assessment of risk;
(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or
(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).
17
In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –
(a) the views of the parties and of Cafcass or CAFCASS Cymru;
(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;
(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;
(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;
(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;
(f) the nature of the evidence required to resolve disputed allegations;
(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and
(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.
18
Where the court determines that a finding of fact hearing is not necessary, the order must record the reasons for that decision.
19
Where the court considers that a fact-finding hearing is necessary, it must give directions as to how the proceedings are to be conducted to ensure that the matters in issue are determined as soon as possible, fairly and proportionately, and within the capabilities of the parties. In particular it should consider –
(a) what are the key facts in dispute;
(b) whether it is necessary for the fact-finding to take place at a separate (and earlier) hearing than the welfare hearing;
(c) whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegation or complaint; the allegations in the schedule should be focused on the factual issues to be tried; and if so, whether it is practicable for this schedule to be completed at the first hearing, with the assistance of the judge;
(d) what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse;
(e) directing the parties to file written statements giving details of such behaviour and of any response;
(f) whether documents are required from third parties such as the police, health services or domestic abuse support services and giving directions for those documents to be obtained;
(g) whether oral evidence may be required from third parties and if so, giving directions for the filing of written statements from such third parties;
(h) where (for example in cases of abandonment) third parties from whom documents are to be obtained are abroad, how to obtain those documents in good time for the hearing, and who should be responsible for the costs of obtaining those documents;
(i) whether any other evidence is required to enable the court to decide the key issues and giving directions for that evidence to be provided;
(j) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence;
(k) in cases where the alleged victim of domestic abuse is unable for reasons beyond their control to be present at the hearing (for example, abandonment cases where the abandoned spouse remains abroad), what measures should be taken to ensure that that person’s best evidence can be put before the court. Where video-link is not available, the court should consider alternative technological or other methods which may be utilised to allow that person to participate in the proceedings;
(l) what support the alleged perpetrator may need in order to have a reasonable opportunity to challenge the evidence; and
(m) whether a pre-hearing review would be useful prior to the fact-finding hearing to ensure directions have been complied with and all the required evidence is available.
20
Where the court fixes a fact-finding hearing, it must at the same time fix a Dispute Resolution Appointment to follow. Subject to the exception in paragraph 31 below, the hearings should be arranged in such a way that they are conducted by the same judge or, wherever possible, by the same panel of lay justices; where it is not possible to assemble the same panel of justices, the resumed hearing should be listed before at least the same chairperson of the lay justices. Judicial continuity is important.
Reports under Section 7
21
In any case where a risk of harm to a child resulting from domestic abuse 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 Children Act 1989 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.
22
If the court directs that there shall be a fact-finding hearing on the issue of domestic abuse, the court will not usually request a section 7 report until after that hearing. In that event, the court should direct that any judgment is provided to Cafcass/CAFCASS Cymru; if there is no transcribed judgment, an agreed list of findings should be provided, as set out at paragraph 29.
23
Any request for a section 7 report should set out clearly the matters the court considers need to be addressed.
Representation of the child
24
Subject to the seriousness of the allegations made and the difficulty of the case, the court must 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 court considers that the child should be so represented, it must review the allocation decision so that it is satisfied that the case proceeds before the correct level of judge in the Family Court or High Court.
Interim orders before determination of relevant facts
25
Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).
26
In deciding any interim child arrangements question the court should–
(a) take into account the matters set out in section 1(3) of the Children Act 1989 or section 1(4) of the Adoption and Children Act 2002 ('the welfare check-list'), as appropriate; and
(b) give particular consideration to the likely effect on the child, and on the care given to the child by the parent who has made the allegation of domestic abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence of making or declining to make an order.
27
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 and the parent who is at any time caring for 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; and
(c) whether contact will be beneficial for the child.
The fact-finding hearing or other hearing of the facts where domestic abuse is alleged
28
While ensuring that the allegations are properly put and responded to, the fact-finding hearing or other hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved. At the fact-finding hearing or other hearing –
each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts; and
the judge should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.
29
The court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child's parents and any other relevant person. The court must record its findings in writing in a Schedule to the relevant order, and the court office must serve a copy of this order on the parties. A copy of any record of findings of fact or of admissions must be sent by the court office to any officer preparing a report under Section 7 of the 1989 Act.
30
At the conclusion of any fact-finding hearing, the court must 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. Any section 7 report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise.
31
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 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 which must be 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 or abuse has occurred
32
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 include local domestic abuse support services) to assist any party or the child in cases where domestic abuse has occurred.
33
Following any determination of the nature and extent of domestic abuse, whether or not following a fact-finding hearing, the court must, if considering any form of contact or involvement of the parent in the child’s life, consider-
(a) whether it would be assisted by any social work, psychiatric, psychological or other assessment (including an expert safety and risk 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. Any such report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise;
(b) whether any party should seek advice, treatment or other intervention as a precondition to any child arrangements order being made, and may (with the consent of that party) give directions for such attendance.
34
Further or as an alternative to the advice, treatment or other intervention referred to in paragraph 33(b) above, the court may make an Activity Direction under section 11A and 11B Children Act 1989. Any intervention directed pursuant to this provision should be one commissioned and approved by Cafcass. It is acknowledged that acceptance on a DVPP is subject to a suitability assessment by the service provider, and that completion of a DVPP will take time in order to achieve the aim of risk-reduction for the long-term benefit of the child and the parent with whom the child is living.
Factors to be taken into account when determining whether to make child arrangements orders in all cases where domestic violence or abuse has occurred
35
When deciding the issue of child arrangements the court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child.
36
In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is 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, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
37
In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –
(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;
(b) the effect of the domestic abuse on the child and its effect on the child's relationship with the parents;
(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;
(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and
(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.
Directions as to how contact is to proceed
38
Where any domestic abuse has occurred but the court, having considered any expert risk assessment and having applied the welfare checklist, nonetheless considers that direct contact is safe and beneficial for 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 intervention (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; and
(d) whether it will be necessary, in the child's best interests, to review the operation of the order; if so the court should set a date for the review consistent with the timetable for the child, and must give directions to ensure that at the review the court has full information about the operation of the order.
Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supervised by a parent or relative, is not appropriate.
39
Where the court does not consider direct contact to be appropriate, it must consider whether it is safe and beneficial for the child to make an order for indirect contact.
The reasons of the court
40
In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.
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.
When faced with dealing with facing your abuser in the family court, surely has to be abuse of the victim, but in the eyes of the court this weakens the victim which leaves the child vulnerable. The freedom programme is recognised by courts and proffesionals. Taking s many courses as possible shows change, but this course shows that you understand and recognise abuse in the future, which is key to you getting through these battles in court.
We do not currently have the code to do this for free and we continue to seek for one for our members. You can still do the course and print it off to show that you have done this and understood it. It will not be seen as any less than a certificate.
The freedom programme
To successfully tackle concerns over domestic abuse / violence you will need to do the following-
If your leaving the relationship -
1. Contact women’s aid
2. See a family solicitor and get a non molestation order to protect yourself and show that you know the appropriate steps to take to protect your children.
3. Do the freedom programme (for free access enter username Freedom and password Control4us
https://www.freedomprogramme.co.uk/online.php
4. Do the IDAS Course https://www.idas.org.uk/
5. Do the course of children and violence https://www.open.edu/openlearn/society-politics-law/children-and-violence-introductory-international-and-interdisciplinary-approach/content-section-0?active-tab=description-tab
If you intend to stay in the relationship -
you will need to fully engage with a course of family and relationship counselling to obtain methods of healthy conflict management, and changing behaviours. This will not work for every couple as some partners do not want to change, you both have to be extremely committed to achieve success and change your lives to do this.
The Freedom Programme Online Course
The Freedom Programme online course. Online version of the Home Study course and Living with the Dominator book by Pat Craven
freedomprogramme.co.uk
written for familycourtsupport.social by Lorna
Certain M.Ps are recognising that many victims of domestic violence and they have tried to get things changed. Repeatedly the Lords has not allowed the changes to happen currently. There has been changes in the laws in respect of domestic violence but they are still not going far enough and these terrible situation are still emerging in the secret family courts.
Many victims of abuse that are parents (not gender specific as both men and women can be the victim of domestic violence.) Find themselves in the position where there is a court order ordering them to take the children to contact with the abusive parent, but the children are refusing to go as they may have had bad experiences, or they may have picked up on the victim parents fear and emotions when around the abusive parent. In many cases, parents are having to take the children kicking and screaming against their will to force them to attend contact.For instance, we have had the question posed to us many times "My children are 8 and 10 and although I've always encouraged contact the children don't want to know. I am potentially being threatened with kids being removed from my care as he's played the parental alienation card.If I have to drag my kids there how will this be taken by the courts as in my eyes it shouldn't be about forcing kids? and what repercussions will I face.. help!!"It is a difficult position to be in as the victim yourself, having to take the children who don't want contact with your abuser but you must encourage this contact and never speak badly of this other parent to them otherwise you can have your children removed from your care to work on the relationship with your abuser. The author of this blog has had exactly this happen to her. She states firmly, "we live and learn." Offering advice for someone in this position can feel impossible. The only advice I can give to you is to sit with your children and do a family tree and show how we are all connected and though some on our tree may not be perfect we are a part of them still and they want connection to us because of that.. try and show them from the fathers viewpoint without making it about him being an abusive person but a human being wanting connections to part of himself and that one day they will have too in their own children. This person's abuse of you shouldn't be shared with the children at this age they are far too young to process this information and if they do know of this social services and the courts will deem this the victims abuse of the children which is why they believe removing the children from the "emotional abuser" of them is the correct thing to do.
Let us hope that these ridiculous laws change sooner rather than later.
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Prohibited steps orders
What is a Prohibited Steps Order?
21 June 2018
A Prohibited Steps Order is an order granted by the Court preventing a parent from doing certain activities or events or making specific trips with their child/children. to get a prohibited steps order you will need to use Form C100: Apply for a court order to make arrangements for a child or resolve a dispute about their upbringing
Apply for a 'child arrangements', 'prohibited steps' or 'specific issue' order under the Children Act 1989.
From: HM Courts & Tribunals Service
It allows the Court to apply a restriction upon a mother or father’s parental responsibility. For example, a Prohibited Steps Order could do the following:
1) Prevent a parent from removing a child from their nursery/school;
2) Prevent a parent from removing a child from their home or from their local area;
3) Prevent a parent from removing a child from the UK;
4) Prevent a parent from changing a child’s surname.
A Prohibited Steps Order may be made in the course of proceedings concerning the child (in conjunction with another Child Arrangements Order under s8 of the Children Act 1989) or as a stand-alone application to the Court.
It can be possible to make urgent applications to the Court and to ask that the Court grant the order without notice being sent to the other party.
Equal rights for seperated Dads.
Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.
Families Need Fathers (www.fnf.org.uk) – this organisation works with lone parents of both sexes. It has booklets and pamphlets that can help you as a separated father, as well as a parenting plan and workshops with trained facilitators. Although a political organisation in part (it has a presence at all three party conferences), its focus is on individuals. It’s £35 a year to join (FNF is a registered charity), but that offers access to many more options. There is also a helpline open to anyone.
The Centre for Separated Families (www.separatedfamilies.info) – The Centre for Separated Families is a national charity. They work with everyone affected by family separation in order to bring about better outcomes for children. Their services are available to parents who are sharing care, those who are caring for their children alone, those who are not able to spend time with their children, grandparents, carers or anyone else with concerns about family separation. You can visit their website or contact them directly via email: advice@separatedfamilies.org.uk
Domestic Violence
What is domestic violence?
Domestic violence (DV) is commonly held to include physical violence, psychological abuse, emotional abuse and financial control. If you are a victim of domestic violence, you need seek help to protect yourself and your children from harm.
What does ´harm´ actually mean?
´Harm´ means ill-treatment or the impairment of health or development. This can include impairment suffered from seeing or hearing the ill-treatment of another person. If children witness domestic violence, even when it isn´t directed at them, the law considers that they are directly suffering.
´Development´ (insofar as a child is concerned) includes a child´s physical, intellectual, emotional, social and behavioural development.
´Health´ includes both physical and mental health.
´Ill-treatment´ includes sexual abuse and forms of ill-treatment that are not physical such as neglect.
Can either sex be victims or perpetrators?
Absolutely. Domestic violence affects both men and women.
Why do people stay in an abusive relationship?
People stay in an abusive relationship for a number of reasons. A common reason is that the victim´s self-esteem becomes reliant on the abuser´s opinion. There may be fear of what the abuser will do if they tell anyone, there may be guilt or shame at being in the situation, a feeling of helplessness, a false feeling of responsibility for the abuse and a fear of how they will cope financially if they leave.
What are the effects on children of domestic violence?
Suffering abuse or witnessing domestic violence can have serious effects on children including ill health, anti-social behaviour, drug and alcohol abuse and self-harm. There can also be longer-term effects leading into adulthood. These can include anxiety, depression, substance abuse, eating disorders and self-destructive behaviour. Sustained abuse can also have a deep impact on the children´s self-esteem and lead to difficulties forming relationships in later life, problems with employment and impact on their own parenting ability.
Who can provide advice and practical assistance?
Government agencies such as the Police and Social Services can provide practical help and support, as can charities that specialise in this area. This can include counselling, and the provision of a place of safety if required, albeit refuge places for male victims of domestic violence are limited.
Has a crime been committed if my partner has hit my children?
Possibly, depending on why they hit your child, and how the child was hit. Individuals with parental responsibility may use ´reasonable´ physical punishment to discipline their children.
It is illegal to punish children to the extent that they become a victim of battery, suffer grievous bodily harm, actual bodily harm or experience punishment that could be considered to be cruelty.
Bodily harm includes any physical harm calculated to interfere with the health or comfort of the victim.
If you are unsure as to whether your partner´s methods of punishment are excessive, you could contact the NSPCC to discuss this, if you had concerns about discussing it with your partner.
There is no need to use physical punishments to chastise a child. Other parenting methods have been proven to be more effective at maintaining a child´s behaviour and wellbeing. Organisations such as the Family Lives and the National Society for the Prevention of Cruelty to Children (NSPCC) provide further information on more appropriate ways to discipline your child:
What will the Police do if I call them?
You should call the Police if you believe either you or your children are in danger, are being harassed, if your property has been damaged, you are being threatened, or have been physically assaulted. The Police have the power to enter any premises and arrest someone guilty of causing injury to another person or damage to property.
The Police are often the first point of contact for families where domestic violence is taking place and have extensive powers to ensure your safety.
If the Police believe that the children are at risk of harm, and depending on the severity of the circumstances, the Police can:
refer the matter to Social Services. This will be done if there are concerns about the children´s safety or if the Officer believes that the children are suffering harm.
secure the safety of the victims in their home. Where this isn´t possible, the Police should take them to a place of safety, such as a relative´s home or refuge accommodation.
arrest the offender when a crime has been committed to ensure the safety of the victim while the offense is investigated. If there hasn´t been physical violence, the Police can still remove the aggressive party from the property if they believe that it might be dangerous or result in a breach of the peace to leave them there.
Will someone be arrested if accused of DV?
Some forms of domestic violence are criminal offences, for which the offender can be arrested and prosecuted, such as:
Common assault. This includes causing injury or putting the victim in fear of injury or causing injury.
Assault causing actual bodily harm.
Criminal damage to property.
Harassment. A charge of harassment can only be brought if harassment has occurred on two separate occasions but can include both physical and verbal conduct.
Rape or Indecent assault.
Are there organisations which can help victims?
Yes. If you and/or your children are in immediate physical danger, you should call the police.
If you and your children are not in immediate physical danger, but experiencing emotional, psychological or financial abuse or control, there are a number of organisations available to assist you:
The National Domestic Violence Helpline can be contacted on 0808 2000 247. Calls to this helpline are free on a BT Landline (mobiles will be charged), but the calls will not show on a British Telecom, 3, Virgin or Orange phone bill. Family and friends can call on your behalf.
For female victims of domestic violence:
For male victims of domestic violence:
Is there legal assistance for victims?
Yes. Legal measures may be taken to remove the perpetrator from the family home. Again, if you are at immediate risk of physical danger, the police should be called.
Legal aid is available to assist people who are victims of domestic violence. You should also contact a solicitor and ask if they undertake legal aid work. Government cutbacks will see legal aid provision reduced from April 2013, however evidence will be required to help secure legal aid funding. This includes:
an existing protective order or injunction in respect of the other party, against the applicant;
an undertaking having been given by the other party in lieu of a protective order or injunction for the protection of the applicant;
a police caution for domestic violence against the applicant;
appropriate evidence of admission to a domestic violence refuge;
appropriate evidence from a social services department confirming the provision of services to the victim in relation to alleged domestic violence;
evidence from GPs;
a criminal conviction for domestic violence by the other party against the applicant;
evidence of a multi-agency risk assessment conference having been referred as at risk of domestic violence, with action recommended;
a finding of fact by the courts of domestic violence by the other party against the applicant.
A solicitor can help you apply for:
An Emergency Protection Order to remove temporarily your ex-partner from the property. This Order may be made if the children are considered to be at risk of significant harm;
A Non-Molestation Order (a type of injunction used to protect named individuals from abuse, harassment, threats of and actual violence);
An Occupation Order. An occupation order affects who can live in or live in part of the family home.
For more information about these orders, we have specific guides (see below):
Emergency Protection Orders Non Molestation Orders Occupation Orders
Victims of domestic violence, after separation, may have concerns about their children having contact with their ex‐partner. It may also be that the ex‐partner presents no risk to the children, but the victim of domestic violence may fear meeting them in person. In such circumstances, and where applications for contact have been made in the family court, please refer to our guide on contact centres, which may offer an appropriate and safe solution dependent on the nature and extent of risk:
Is there help for abusers?
Yes. Respect is the UK membership association for domestic violence perpetrator programmes and support services. Their objective is to increase the safety of people experiencing domestic violence by promoting effective interventions.
Respect provides a telephone service offering information and advice to domestic violence perpetrators, their partner, ex-partner and friends and family.
If you are a perpetrator of domestic violence, the Court may take into account your willingness to recognise that you have a problem and are willing to get help when considering contact with your children.
The following leaflet provides additional information on domestic violence perpetrator programmes:
Other recourses.
Domestic Abuse Perpetrator Programme (DAPP)
The Domestic Abuse Perpetrator Programme (DAPP) aims to help people who have been abusive towards their partners or ex-partners to change their behaviour and develop respectful, non-abusive relationships.
Taking part in DAPP can make a real difference to the lives of those involved, including children who have been affected. But it can be challenging and the court will make decisions about contact based on the progress a participant makes during the programme.
In most cases, Cafcass will assess a person’s suitability for the programme and will check whether it is available locally. We will only make a referral following a court order.
What to expect
The DAPP takes place in groups involving 8-12 participants. Sessions are weekly, outside working time, and last for between 2 and 2.5 hours over about six months. Every DAPP has a parallel service that supports partners and ex-partners at risk from domestic abuse and this service is offered to them.
The Family Court Adviser will make the referral to the provider. The provider delivers the DAPP sessions and will report back to Cafcass on progress and learning. The court is then informed by Cafcass regarding changes in risk.
Cost
There is no charge for Cafcass service users to take part in a DAPP when this is ordered by the court as a ‘court ordered activity’ in private law cases concerning Child Arrangements Applications.
Local providers
You can find a list of DAPP providers in your area on the Directory of Providers page. Please note that the delivery sites listed for DAPP may not be available for all groups all the time, as this will depend on need and availability.
Children and the law: the Family Court process
Click here to download a PDF guide to Children and the law: the Family Court process
How to make an application to the Family Court
Allegations of harm and domestic violence
What if I need to take urgent court action?
Can I appeal the court’s decision?
Can the court change orders it has made previously?
This guide provides an overview of the family court process and procedure for disputes between parents which need to be resolved by making an application to the court for a child arrangements order, prohibited steps order or specific issue order. For information about what these types of orders are and the options available to separating parents, see Children and the law: when parents separate
Before you apply to the courts for an order you must first contact a mediator and arrange for a mediation information and assessment meeting (MIAM). You may not need to attend a MIAM if an exemption applies (for example if you are a victim of domestic violence or your case is very urgent). For further information, see our Guide to alternatives to the Family Court.
How to make an application to the Family Court
The application procedure can be complicated and we recommend you seek legal advice from a solicitor or our advice line.
To start a new application you should:
Complete form C100 (available from your local family court, or alternatively you can download a copy from hmcourtsservice.gov.uk/HMCSCourtFinder/FormFinder.do)
Complete supplemental form C1A if you or your child have suffered, or are at risk of suffering, any harm from domestic violence or abuse, child abduction or other conduct or behaviour that could be considered harmful.
Pay the relevant court fee or complete form EX160 if you are applying for a fee exemption.
People other than the child’s mother and father may need to apply to the court. They should complete the form C2 in order to apply for permission to make the application. Contact our advice line (see Useful Contacts) for further information.
You should take all forms (with sufficient copies for yourself, the court, Cafcass (see below), the other party and anyone else with parental responsibility) to your nearest family court. You can find the full list of courts and information about what type of work they do online at www.courttribunalfinder.service.gov.uk
The court office will issue your application and give you a court reference number. You should also receive a date for the first hearing. If you have issued your application using a form C100 then the court will send the applications forms and hearing date to the other party.
You will be referred to as the applicant in the proceedings. The other party will be referred to as the respondent.
If there are already ongoing court proceedings in relation to the children but you wish to make a further application in relation to the same children, you can apply to the same court, using the same court reference number using a different form (form C2). You will need to send a copy of the application forms and hearing date to the other party. Contact our advice line if you require further information.
What if I don’t want the child’s father to know our address?
If you feel that you or your children will be at risk of harm if the father has your contact details then you do not need to put this information on the forms, but you will need to provide your contact details to the court. You can do this using a form C8. The court should not send the C8 or reveal your contact details to the other party.
I have received an application from my child’s father from the family court
If you receive an application from the court which has been issued by someone else in relation to your child, you are a respondent in the proceedings. The court should also send you a blank form C7 which you should complete and return to the court not less than 10 days before the hearing. If you are concerned that there is a risk of harm to your child that the court should know about, you can complete form C1A and return this to the Court at the same time as you send them the form C7.
Cafcass and Cafcass Cymru
Cafcass (the Children and Family Court Advisory and Support Service) and Cafcass Cymru (in Wales) are involved in most children disputes at court. The role of Cafcass is to provide judges with advice, information and recommendations and help them reach a safe decision for the child.
If there is an application for a child arrangements order (and sometimes if there is an application for a prohibited steps order or specific issue order) Cafcass will carry out background safeguarding checks before the first hearing and report to the court to highlight any safety issues. This will include contacting the local authority and police. An officer from Cafcass should also contact you and the other party by telephone to discuss any safety issues.
The court may ask Cafcass to prepare further reports during the case. The officer from Cafcass may speak to the children to find out their wishes and feelings (if they are old enough to express these) and they will usually speak to both of the parents.
First hearing
The first hearing is called a “First Hearing Dispute Resolution Appointment” (FHDRA). Sometimes parties are able to reach an agreement at the first hearing. If this happens then the court may make an order setting out the agreement. This is known as a consent order. You should check the consent order to ensure it reflects what you agreed to. You should not consent to the order unless you are happy with it. Sometimes, if the judge thinks that your case would be suitable for mediation or you and the other party need more time to try and agree matters, the judge may adjourn the hearing (this means to take a break and come back to court at a later date) and can direct that you attend mediation.
If the parties cannot agree then the judge may make a decision and put the decision in an order. Remember to check any orders to ensure that they reflect what the judge said.
Alternatively, if the judge needs more information before they can make a decision, they may list a further hearing or further hearings for future dates, and ask for various things to happen in the meantime. For example, the court may ask you and the other party to file statements, or request reports or disclosure from the police or social services. They may also direct that Cafcass meets your child or children and reports to the court about their wishes and feelings.
Allegations of harm and domestic violence
The court should consider whether there has been any domestic violence or harm to you or the child early on in the case. The court needs to think about whether or not the violence or harm affects the decision that the court has to make.
If you have alleged that the other party has been violent towards you or the children and the other party denies the allegations, the court may hold a finding of fact hearing. This is a hearing when the judge will look at all of the evidence and decide whether they think the evidence shows that the alleged abuse is more likely to have happened than not. In order to make this decision, it is likely that the judge will ask you and the other party to give oral evidence in court and you may be asked questions about what has happened by the judge and the other party or his lawyer. You are also allowed to bring other witnesses that can support your case but you should inform the judge of these witnesses at the first hearing and obtain statements from them before going to court. If the judge has directed that the finding of fact hearing is necessary, they will give directions to you and the other party which you must comply with. If, for any reason, you are not able to comply with the directions in the time given, you should write to the court and inform them of this.
At the end of the finding of fact hearing, if the court decides that the other party has been violent towards you or the children then any order it makes will need to ensure that the child is not at risk of harm. The court’s order should also take into account other issues, e.g., whether the perpetrator should attend a domestic violence programme, and how the children have been affected by the perpetrator’s behaviour.
Final Hearing
There may have been several hearings before you reach a final hearing. If you and the other party reach agreement then there may be no need for a final hearing. If you do have a final hearing then it is likely that you will have provided the court with written statements to support your case.
At the final hearing you may be required to give oral (spoken) evidence. You will be asked take an oath or affirm (make a formal declaration) that you will tell nothing but the truth to the court. You will have a chance to tell the judge your side of the story. The other party, or his lawyer, will ask you questions. The other party will also have a chance to tell the judge his story, and you or your lawyer can ask him questions.
After hearing the evidence the judge will either take a break or give a decision straight away. The judge will summarise what you have said and what the other party has said and give a decision on what should happen with the child’s future. The judge will give reasons for the decision, which you should try and note down.
What if I need to take urgent court action?
If your case is urgent then you should inform the court staff that you need your case to be heard urgently. You should contact the court before going there as some courts require you to make an appointment first. The court staff will either allow you to see a judge or magistrates that day, or as soon as possible depending up on the circumstances of your case.
When seeking an urgent order you should, generally, tell the other party that you are making an application. You can do this informally, by writing to them, phoning them, texting them or e-mailing them.
In certain circumstances, you can ask the court to hear your application without the other parent knowing about it. This is called a without notice application. In order to have a without notice hearing you will need to show that if you told the other parent that you were making the application:
this would enable the other parent to take steps which would defeat the purpose of your application (for example, take the child abroad before the hearing);
you, or the child, would not be safe if you gave notice to the other parent (for example if he has been abusive in the past or threatened abuse);
there is some other exceptional urgency, which means there is no time for you to give notice.
During a without notice hearing, the judge will hear your reasons for making the application without informing the other party and may make the order you request or may postpone making the order until they have also heard from the other party. Even if the court makes the order you have requested, it will usually set a date for a further hearing to decide whether or not the order should continue. The other parent will be informed of this hearing date and asked to attend the hearing to put forward their views.
Can I appeal the court’s decision?
The court’s decision is usually final. In certain circumstances you may be able to appeal the court’s decision. You can only appeal in very limited circumstances, for example if the judge made a very serious mistake or because the judge did not follow the proper legal procedure.
If you intend to appeal a decision of the family court you must normally do so within 21 days of the decision (unless the judge who gave the decision provided a different time limit).
You need the court’s permission to appeal. You can request permission from the judge who made the decision. If you didn’t ask for permission, or if the judge who made the decision refused to give you permission to appeal, then you can ask permission from the court that you are appealing to.
Appeals can be costly and complicated and you should seek legal advice from a solicitor or a barrister.
Can the court change orders it has made previously?
Sometimes circumstances change after the court has made a final decision. For example, the arrangements in a Child Arrangements Order may no longer work as the father has moved away, or the other parent may not be collecting the child when he is supposed to. If circumstances change you can apply to the court to “vary” the order. The same procedure applies to this application, so you will need to follow the procedure set out above.
The issues relating to orders about children can be complex and we have provided a very basic overview of terminology, law and court practice and procedure. We would also strongly advise you to seek legal advice by either telephoning our legal advice line or a solicitor.
Please note that the law as set out in this legal guide is the law in England and Wales as it stood at the date of publication The law may have changed since then and accordingly you are advised to take up to date legal advice. Rights of Women cannot accept responsibility for any reliance placed on the legal information contained in this legal guide.
This legal guide is designed to give general information only.
For free, confidential, legal advice contact our advice lines
FAQ
The main question asked by parents in the group is this.
What is the point of a Finding of Fact hearing if domestic abuse against the other parent is not a factor when it comes to contact?
our Answer ..
Because even though they may acknowledge the parents hate one another to the point abuse has gone on between them, they see that the child that is in the middle of that abuse has been abused more. They put child abuse before adult abuse because adults can get out but a child cant. Where the child is in the victims care the victim will try to stop contact with THEIR abuser.
The victim with care will try hard to tell everyone at the court and professionals that this other parent is abusive. In these circumstances where the child has witnessed the abuse, the family court says that the parent with care didn't protect the child from the abuse and have allowed the child to be abused... Abuse, especially emotional abuse and coersive control is hard to prove and unless there are criminal charges against the abusive parent towards the child they will ignore it. The more the victim cries rages writes and shout’s that this other person is abusive warning others that he/she will harm the child they see THIS behavior as what the child is witnessing even more and call this parental alienation especially where the victim parent is stopping the child/ren having contact with the other parent.
A person who has healed and had intense therapy after being in an abusive relationship speak’s of the abuse they suffered as being in the past and dealt with. They accept they are no longer with this person and no longer being abused. The unhealed victim will keep talking and talking to everyone about this abuser, the child's parent is abusive to them and therefore also abusive to the child. They cannot seperate their abuse with the childs experiences and they call this an enmeshed relationship and deem the parent that the child has become enmeshed with as being the abuser. They remove children from the parent that they have this “enmeshed relationship” with and tend to want to work upon the relationship between the other parent and the child whilst causing the parent who has the enmeshed relationship to only have limited contact with the child under supervised conditions.
Another idea the family courts see these situations is they say that because the abuser hate’s and “appears abusive” but is behaving this way towards the enmeshed parent because they are not getting contact with the child and see this as bing abusive in itself towards that child. CAFCASS tend to agree with this. They believe that because they are angry towards the parent witholding contact, this does not mean they will abuse the child.
Where the child has never been abused by the other parent and they have not witnessed the abuse of one parent of the other and where the victim has not told the child of the abuse then it is likely that the child will love the one deemed the “abusive parent” and the chances are the child will want to have a relationship with them. This may be hard for the victim but it really is the most heald and adult path that the family court see as being best for the child...
The family court sees it that as a parent we have got into a situation where we made a child with this person and must have liked them too at some point to have created this little person together.
1. So when the victim says “I dont want this child to see this person who has abused me, they see that as parental alienation that is happening now and not in the past which is even more abuse of the child that they are experiencing now.
2. The family courts see the adults as being responsible for protecting the child against witnessing abuse.
3. The family court believes that the parent who abuses the other parent is doing so because they are being stopped from seeing the child and so if the child is in the abuser's care then the abuse against the other parent will then end.
4. The victim becomes so afraid to contact the abuser and prefer to have their contact in a centre where they end up appearing the abusive party having to have their contact supervised. Whilst the abuser has care it causes family and friends to turn against the victim victimising them still further.
In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments That Guide Judicial Determinations
source
School of Criminology and Criminal Justice, Griffith Institute of Criminology, Griffith University, Brisbane 4122, Australia
Academic Editor: Patricia Easteal
Received: 20 December 2015 / Accepted: 7 March 2016 / Published: 10 March 2016
Abstract
: This paper outlines why domestic violence (or more specifically, coercive control) should be crucial to child custody proceedings. What is known about parenting in the context of coercively controlling violence, and what the legislation directs courts to consider, is juxtaposed with the actuality of court decision making. Current knowledge about the recognition of domestic violence in judicial practice is overviewed, drawing particular attention to the role of the “expert” family assessment in determinations of a child’s “best interests”. A comprehensive synopsis of the existing research on these “expert” reports in Australia, the United Kingdom and the United States is provided. It is concluded that, in court proceedings the reality of living with coercively controlling violence and the potential on-going risks it poses to children and non-abusive parents, is typically negated. Instead, “best interests” considerations prioritise the maintenance of perpetrator/child relationships, and thus “abuser’s rights” over victim safety. Judicial officers are not experts in domestic violence and they can only make decisions on the basis of the evidence before them, the assessments made by the “experts” likely play an important role in best interest considerations. Of concern is current research that calls into serious question the expertise of these “experts” when it comes to proceedings involving allegations of coercively controlling violence.
Keywords:
domestic violence; coercive control; family law; family reports; family courts; custody evaluations; expert evaluations
1. Introduction
In this paper domestic violence, a gendered crime [1,2,3,4,5], is conceptualised as coercive control; a pattern of on-going intentional domineering tactics employed by (usually) male perpetrators with the intent of governing their female victim’s thoughts, beliefs or conduct and/or to punish them for resisting their regulation [6]. Coercive control, a term introduced by Stark in 2007 [6], has recently gained ground in western scholarly literature, public narratives, government policy and law. For example recent changes to the United Kingdom’s Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in intimate or familial relationships, which acknowledges this violence as “a purposeful pattern of behaviour which takes place over time in order for one individual to exert power, control or coercion over another” ([7], p. 3). Similarly, the Australian Government’s National Council to Reduce Violence against Women and their Children ([8], p. 13) states that, “a central element of domestic violence is that of an ongoing pattern of behaviour aimed at controlling one’s [ex]partner through fear (for example, by using violent or threatening behaviour)...the violent behaviour is part of a range of tactics used by the perpetrator to exercise power and control...and can be both criminal and non-criminal in nature”. The United States Department of Justice [9] also defines domestic violence as “a pattern of abusive behavior...that is used by one partner to gain or maintain power and control over another intimate partner”.
The tactics or behaviours exhibited by perpetrators of coercive control may include: emotional abuse (e.g., victim blaming; undermining the victim’s self-esteem and self-worth; verbal abuse (e.g., swearing, humiliation and degradation); social abuse (e.g., systematic social isolation); economic abuse (e.g., controlling all money); psychological abuse (e.g., threats and intimidation); spiritual abuse (e.g., misusing religious or spiritual traditions to justify abuse); physical abuse (e.g., direct assaults on the body, food and sleep deprivation); sexual abuse (e.g., pressured/unwanted sex or sexual degradation) ([10], pp. 2–3).
In reality many perpetrators never use physical violence. Some may use what is best described as minor assaultive violence such as pushing, grabbing and/or getting “up in a victim’s face”. Others may threaten physical violence. Some may follow through on these threats, but only when they are losing control over the victim. The largest predictors of intimate partner homicide, for example, are, in fact, emotionally abusive and controlling behaviours and victim-instigated relationship separation ([6], pp. 276–77). Universally, victims of domestic violence report that it is the non-physical elements of abuse that causes them the most pain and trauma both in the short and long-term [6,11,12].
In the past, domestic violence and child abuse were frequently treated as separate issues. More recently, there is growing recognition that domestic violence is a child protection issue. For example, child welfare legislation in most of Australia’s states and territories now explicitly names exposure to domestic violence as constituting “harm” to children ([13], p. 460). This shift, also evident in child protection law in both United Kingdom and United States [14], owes much to a growing body of research demonstrating: (1) the high co-occurrence of domestic violence and child abuse; (2) the abusive nature and negative impact on children living with domestic violence ([8]; [15], p. 148; [16], pp. 50–51; [17,18,19,20,21,22]).
Domestic violence and child abuse frequently co-occur within the same families [21]. In the United States, it is estimated that between 30 and 60 per cent of children with mothers in abusive relationships are abused ([21], p. 1). Australian studies of child protection cases similarly support the co-occurrence of domestic violence and child abuse. For example, in Victoria (Australia), an investigation of actual or suspected child maltreatment cases found that child protection workers reported domestic violence in 31 per cent of cases ([16], pp. 5–6). More specifically, domestic violence was reported as present in 38% of child neglect cases, 37% of physical abuse cases, 68% of emotional abuse cases and 20% of sexual abuse cases ([20], pp. 5–6). Bedi and Goddard’s [22] Australian research reported co-occurrence rates of 55% and 40% respectively for intimate partner violence and child physical and sexual abuse.
Children living with domestic violence are not only exposed to the violent events but may also: hear the violence; see its effects (e.g., blood, injuries, damaged property); be used as a tool in the abuse (e.g., being forced to spy on a parent by the abusive parent; used to send threatening messages); be blamed for the violence; be used as a hostage by an abusive parent to intimidate/scare their victim; as well as defend a parent against the violence and/or intervene to stop the violence [15,18,19]. As noted by Parkinson and Humphreys ([15], p. 148) domestic violence in families, “does not usually occur in a way which is separated from the lives of children”; it is not something that children simply witness at a distance. Rather, it is something that they acutely experience [23].
For example, utilising interviews with children living with domestic violence, recent research undertaken by Callaghan et al., in the United Kingdom [23] established that children are directly entwined in the parental dyadic of coercively controlling violence. Children clearly expressed an awareness of the controlling behaviour and coercion being perpetrated within their families and described the negative impacts of this on their victimised parent, themselves and family life. They “narrated the disruption and distress that they experience[d] as a consequence of coercive control and abuse in the family” ([23], p. 13). Thus, Callaghan and colleagues [23] argue, the “victim” in domestic violence is not just the adult in the intimate dyad; children are also the direct victims of coercive control.
Indeed, children who live with domestic violence, “exhibit levels of emotional and behavioural problems, trauma symptoms, and compromised social and academic development comparable to children who are the direct victims of sexual and physical abuse” ([22]; [24], p. 21). This includes, but is not limited to: feelings of sadness, anger, confusion, fear, low-self-esteem, anxiety and other internalised symptoms of distress (e.g., psychosomatic illnesses, fretful sleeping, nightmares, insomnia, eating disorders, repetitive self-harm, depression), externalised behaviour problems (e.g., aggression, antisocial behaviour), poor academic achievement, social withdrawal, poor social competence, low levels of empathy, and in more extreme cases, posttraumatic stress disorder [15,17,18,19].
Similar to adult victims, coercive control also imposes a sense of constraint on children’s lives. Callaghan et al.([23], p. 14) reported that the children in their research were vigilant about monitoring space, perpetrator mood and learnt how to manage what they said and did around their abusive parent both prior to and post parental separation. As clear strategies for keeping themselves and other family members safe, the children reported monitoring their speech, their self-presentation, self-expression and social interactions. The psychological abuse and sense of constant fear that is associated with coercive control, was expressed by the children as being a regular feature of their lives—thus, “far from passive witnesses, [children] are not exposed to violence and abuse; rather, they live with it and experience it directly, just as adults do” ([23], p. 16).
Accordingly, living with domestic violence is itself a form of child abuse ([18], p. 799). This conjecture is supported, for example, by recent changes to Australian law (including family, child protection, and civil domestic violence protection order legislation) in which domestic violence is now included in definitions of child abuse [13]. Correspondingly, Einat Peled [25], one of the few researchers worldwide undertaking studies on abusive men as parents, contends that “all abusive men can be defined as psychologically abusive to their children by being responsible for the children’s exposure to domestic violence and its various negative emotional, cognitive and behavioural derivations”.
Unfortunately for children and their mothers, family dissolution does not inevitably mean that the coercive control will come to an end. Research shows that domestic violence frequently continues post-separation and often increases in severity ([18], p. 800; [21], p. 2; [26]). At its most extreme this may have lethal consequences for both adult victims and/or their children ([18], p. 800; [21], p. 2). When domestic violence ends in homicide, there is no doubt about the dangers of separation. Death reviews and inquests routinely point to the dramatic increase in risk to women and their children when trying to leave coercively controlling men [5,27,28,29,30]. This is consistent with the definition of domestic violence as coercive control. Separation sends a clear message to perpetrators that they are losing power over their victims ([31], pp. 8–9). It is against the backdrop of relationship dissolution and heightened risk that adult victims and their children enter into child custody proceedings.
In this paper I discuss utilising extant research and commentary, why domestic violence (or more specifically coercive control) should be crucial to child custody proceedings. What is known about parenting in contexts of domestic violence, and what family law legislation directs judicial officers to consider is juxtaposed with actual practice. While there is a relatively expansive literature on the apparent inconsequentiality of domestic violence in judicial assessments of the “child’s best interests”, less is known about the “expert” family assessors. The paper will therefore overview what is known with regard to the recognition of domestic violence in judicial practice, draw attention to the plausible significance of “expert” family assessments in judicial determinations of the child’s best interests, and provide a thorough synopsis of the research (in Australia, United States and United Kingdom) pertaining to these “experts” reports in cases of coercively controlling violence.
2. The Significance of Domestic Violence in Child Custody Proceedings
Cases involving allegations of domestic violence and child abuse are core business in child custody proceedings ([32], p. 32). In the United States, for example, it is estimated that up to 50% of disputed custody cases involve domestic violence ([33], p. 1078). Research undertaken by the Australian Institute of Family Studies similarly shows allegations of spousal violence occurring in over 51% of litigated family law cases, with the figure rising to over 70% of those cases that were not judicially determined ([34], p. 67). Although now over a decade old, analyses of court files undertaken by Smart and colleagues in the United Kingdom ([35], pp. 2–3) revealed allegations of domestic violence in around 25% of disputed child custody cases.
Given the previously discussed impacts on adult victims and children, domestic violence should be highly relevant to child custody proceedings. Obviously the parental capacity of people who directly abuse their children and/or expose them to their abuse of others is questionable ([36], p. 192). As noted by Meier ([36], p. 705) with regard to the latter, “people who need to control and abuse their intimate partners are unlikely to be capable of the loving, nurturing and self-disciplined behaviour that good parenting requires. By definition, a father who abuses the mother has indicated that he cannot put the children’s interests first, since their mother’s abuse, by undermining her well-being, [is] inherently harmful to children.”
However, this is but one feature of the multifaceted problems that pervade the lives of children with a domestically violent parent [24,32,33]. Coercive control is often directed at both adult and child victims ([11], p. 3), a situation likely to continue post-parental separation. As noted above, separation is not a “vaccination against domestic violence” ([31], p. 29). Certainly, it is common for perpetrators to use child visitation as an occasion to persist with the abuse of their ex-partner. This is a manifestation of “child abuse as tangential spouse abuse…a particularly effective intimidation tactic during separation…when the offender’s access to [the victim], but not to the children, may be limited…the offender treats the child as an extension of the mother and as a way to hurt or control her” ([6], p. 251). In the process of course, children continue to live with and experience the negative consequences of domestic violence [23]. In addition, when coercively controlling fathers re-partner, research shows that many will then go on to abuse their new spouse [37].
Further, and in contrast to non-abusive men, domestic violence perpetrators tend to parent in ways that are less than positive for children ([38], p. 22). While not an exhaustive list, the following key concerns are highlighted in albeit limited extant literature/research:
Poor Role Modelling: The family is core to children’s socialisation. Here powerful lessons are taught including conflict resolution and how to cope in the “face of” frustrated needs and wants ([24], p. 22; [38], p. 22). When children witness domestic violence they may grow up believing that such behaviour is acceptable ([31], p. 30; [38], p. 22). This assumption is borne out in research showing that sons of domestically violent men have dramatically elevated rates of domestic violence perpetration in adulthood, while daughters often find themselves victimised by men like their fathers ([39], p. 61). Perpetrators also tend to be excessively patriarchal, believing in strict gender roles, the superiority of men and subordination of women. This teaches further negative lessons to children about gender-role expectations ([31], pp. 30–31).
Rigid Authoritarian/Coercive Parenting: To recover from the trauma of living with domestic violence children need a nurturing, loving environment that includes appropriate structure, limits and predictability. Yet domestic violence perpetrators are not only coercively controlling with intimate partners they also tend to utilise harsh and rigid discipline with their children ([24], p. 22; [38], p. 22). This parental approach may be especially intimidating as well as re-traumatising for children whose well-being is already compromised as a result of living with domestic violence ([18]; [25], pp. 28–29; [36], p. 706; [39], pp. 2–3; [40]).
Lack of Empathy and Respect: Men who perpetrate coercive control generally lack the empathy that allows parents to treat their children with respect and to validate their feelings, qualities that are important to raising emotionally healthy, conscientious and caring children ([36], p. 706).
Neglectful or Irresponsible Parenting: Perpetrators tend to be self-absorbed and this can result in negligent or irresponsible parenting. In addition, some may use intentionally neglectful parenting as a way to win children’s loyalty, e.g., allowing them to eat “junk” food all the time, permitting them to watch inappropriate violence or sexuality on the television ([39], p. 3).
Use of Psychological Abuse and Manipulation Tactics: Coercively controlling men have a tendency towards verbally abusive and manipulative parenting such as lying, providing false promises, drawing children in as agents of abuse against their mothers (e.g., asking the children to give the mother threatening messages, demanding they report on her whereabouts, who she talks to and what she does) and/or trying to fracture the mother/child relationship ([25], pp. 28–29; [31], p. 29; [36], p. 706; [39], p. 3; [41], p. 102). These latter two behaviours, which appear to increase post-separation, are examples of what Evan Stark ([6], p. 292) refers to as “child abuse as tangential spouse abuse”. The literature suggests that more than any other factor, emotional recovery for children who have lived with coercive control is dependent on a positive and secure relationship with the non-abusive parent. As a consequence, domestically violent fathers who create tensions between mothers and children can sabotage the healing process ([39], p. 3).
Possessiveness: Perpetrators of coercive control perceive their partners as their property and this perception may extend to their children. Perpetrators have, for example, been found to seek custody at higher rates than non-abusive fathers even when they have shown little prior interest in parenting. Possessive parenting is also linked to an increased risk of child physical and sexual abuse ([39], pp. 15–17).
Sense of Entitlement: Perpetrators of coercive control often have difficulty focussing on their children’s needs due to their selfish and self-centred tendencies ([39], pp. 11–12). Many abusive men have an overinflated sense of entitlement, expecting children to meet their needs, rather than vice versa ([39], pp. 8–11). For example, they may expect their children to give up their interests to spend time with them, demand physical affection regardless of the child’s feelings and become blaming, tearful, or shout when their children fail to make them feel good ([36], p. 705; [39], pp. 11–12). This parent/child role reversal can make children feel that it is their responsibility to take care of the abusive parent, that they must meet their needs and ensure their well-being ([39], pp. 49–51). Such parenting weaknesses can be accentuated in the context of post-separation visitation where abusers have primary responsibility for their children for longer periods of time than was likely the case prior to parental separation ([36], p. 705).
In addition to concerns around abusive men’s capabilities as fathers, mothers who have been victimised often experience specific parenting challenges. They are often preoccupied and continue to be fearful of their abuser, physically and emotionally exhausted, economically strained (due to previous and on-going financial abuse) lacking in parenting confidence, anxious, depressed, paranoid (with logical reason), substance abusing (as a form of self-medication) and/or affected by post-traumatic stress ([24], p. 22). All these factors have the potential to impair maternal parenting and detrimentally impact the mother/child relationship ([38], p. 20; [42], p. 18). This is concerning because studies show that a positive relationship with the non-abusive parent can placate the negative impacts of domestic violence on children ([31], pp. 28–29). Research does nonetheless suggest that the adverse consequences of domestic violence may dissipate once mothers are safe. It is therefore critical that non-abusive parents be protected from on-going post-separation violence ([38], p. 20).
However, even if the domestic violence ceases post-separation, mothers and children still need time to heal. Similar to adult victims, it is not uncommon for children to remain fearful and anxious toward the perpetrator even when the domestic violence has ceased. This is especially so in contexts where the perpetrator and victim come together in the same physical space (e.g., at visitation “hand-over”). As noted by Jaffee, Lemon and Possion ([31], p. 29), “for the children, the past traumatic [events have] engendered such fear that any association with the past (e.g., the presence of both parents in the same place) can create significant anxiety and distress”.
3. Domestic Violence in Family Law and Judicial Practice
In the United States, British Isles and Australia, living with coercively controlling violence alongside a child’s right to maintain their relationship with both parents is now explicitly recognised in family law as crucial in the determination of the child’s best interests. However in each locale the research is unequivocal: contact with a parent with whom a child does not live (usually fathers) is almost always deemed by the family courts to be in the child’s best interests, regardless of whether the non-resident parent is a perpetrator of coercive control ([36], p. 1; [37], p. 13; [43], p. 11; [44], pp. 350–54).
In Australia, “ensuring that children have the benefit of both their parents having meaningful involvement in their lives” is noted to take precedence over “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” ([36,42,43]; [45], p. 182; [46,47,48,49]). Similarly, in Ireland, Naughton et al.’s [44] research (based on interviews with family court judges) revealed a “pro-access” narrative that negated the coercive control, future risk, and ensured continued contact between perpetrators and their children. Likewise, Holt’s [50] study, based on interviews with key family court stakeholders (including children), found that judicial decision making is dominated by the presumption that contact with abusive men is automatically in the child’s best interests even when children openly expressed aversion to this. Dragiewicz ([51], p. 122) in her overview of research in the United States, correspondingly concludes that despite concerns about domestic violence and state laws requiring its consideration at custody determination, maximum contact with fathers is still prioritized in the family courts. In practical terms, this has resulted in equivalent, substantial or significant time being afforded to perpetrators of coercive control [44,45,46,50].
In the United Kingdom a recent study revealed that notwithstanding histories of violence [including cases where a protection order was in place and fathers had criminal convictions for domestic violence related offences], unsupervised contact was commonly ordered to abusive fathers [33]. Concerning as this might be given what is known about the impacts on children, more problematic is research suggesting that domestically violent fathers are considered no differently or viewed more favourably than non-abusive men [52,53,54,55].
Australian research suggests that parenting orders in domestic violence and non-domestic violence are not substantially different (e.g., [54], p. 87). O’Sullivan’s [52] analysis of family court files in the United States found that fathers who had a domestic violence protection order out against them had a much high probability of being granted visitation compared with those fathers who never had a protection order against them. In the United Kingdom, 50% of disputed custody cases involving allegations of domestic violence resulted in orders of direct contact between children and abusive fathers [35].
The now growing body of research showing the inconsequentiality of domestic violence to child contact outcomes has led researchers (particularly in the United States) to suggest that gender bias, and failure to understand the nature of coercively controlling violence and its impact on women and children could be to blame [56,57,58]. These propositions are supported by research and the outcomes of government commissions of inquiries in the United States showing that the “creditability accorded to women in family court proceedings is less than that accorded to men” ([36], p. 687). This results from negative gender stereotyping (e.g., women are manipulative and prone to hysterical over-exaggeration) alongside cursory understandings of domestic violence and perpetrator tactics ([36], p. 680; [56,59,60]).
Studies show, for example, that while abusive men have a tendency to minimise or deny allegations of violence made against them, courts are more likely to view women’s accusations of violence as exaggerated, false or insufficient ([31], p. 17; [36], pp. 681–84; [42], p. 14; [44]; [56], p. 20; [61], p. 93). Likewise, though an attempt to fracture the mother/child relationship is a common tactic utilised by perpetrators to punish and control their victims (i.e., child abuse as tangential spouse abuse), the prevailing court fiction is that women are at best more likely to be “unfriendly parents” and at worst responsible for paternal alienation1 ([31]; [36], pp. 679–89; [56], pp. 22–23; [60], p. 39). Common sense protective actions taken by mothers to shield themselves and their children from the perpetrator (e.g., not wanting to co-parent, reveal their residential address or support unsupervised visitation) are frequently construed as unreasonable, unfriendly and potentially alienating, as are associated claims by mothers that their children are at future risk from domestically violent fathers ([36], pp. 679–89; [60], p. 39).
Utilising case analyses of court outcomes in the United States, Meir ([36], p. 686) concludes the following with regards to victim’s concerns for the safety of their children: “...it is highly unusual for a [victim]...to be recognised by a court to be sincerely advocating for her children’s safety. Rather her status as a litigant, a mother, and [victim], seems to ensure that she will be viewed as, at best, merely self-interested, and at worst, not credible. Conversely, men’s demands for access to their children are typically met with the presumption of good faith, even when those men are adjudicated [perpetrators of domestic violence]”. In reality, men who perpetrate domestic violence frequently seek outcomes (e.g., sole or joint physical custody) in which they have no genuine interest ([31], p. 20; [36], p. 685).
The courts have a tendency toward over-valuing fathers’ claims of desire for extensive access to their children. Rather than being “good faith”, it is now well-established that litigation is primarily used by perpetrators as an extension of power and control. It provides an avenue through which they can continue to intimidate and incite fear in their victims ([31], p. 20; [36], p. 685).
Other instances in the research literature of judicial unawareness around domestic violence and/or gender bias include: (1) the reconstitution of coercive control as mutual violence or as indicative of a “high conflict” relationship, rather than the result of perpetrator dysfunction; (2) holding mothers to higher standards than fathers; (3) restricting child/mother contact (instead of providing mechanisms to support it) in cases where the effects of domestic violence (e.g., depression, anxiety, paranoia, anger, self-medicating substance abuse) call into question the victim’s parental capacity; (4) treating domestic violence (past and present) as extraneous to perpetrators parenting or children’s well-being ([36], pp. 697–702; [44]; [56], p. 19; [57]).
4. The “Expert” Evidence in Child Custody Proceedings: What does the Research Tell Us?
Judicial officers are not domestic violence experts and can only make decisions on the basis of the evidence that is before them. As noted by Retired Justice of the New York Supreme Court, Marjory Fields [61], in child custody proceedings involving domestic violence, even “the best trained judge cannot find or be persuaded by missing evidence”. Given that domestic violence happens in the privacy of the home, and victims have likely experienced barriers to disclosure as a result of the perpetrators coercively controlling tactics, sparse evidence may be available to prove allegations of abuse. Without evidence and with limited knowledge about coercive control, there is a danger that judicial officers may overly rely on normative assumptions about gender and domestic violence ([32], p. 32). However, guidance can be sought from “experts” ([60], p. 38).
In Australia, the provision of this “expert” assistance frequently comes in the guise of the family report which can be ordered by the court or arranged privately by the independent children’s lawyer and parties. Prepared by family consultants, who are usually social workers or psychologists, these reports provide independent “expert” evidence about the family’s dynamics and guidance around how the best interests of the children might be served post-separation ([34], p. 91; [46], p. 72; [64], p. 16). The “expert” opinions of Australia’s family consultants are argued to play “a significant role in informing judicial officers’ understandings of children’s best interests” ([28], p. 33). Indeed, studies suggest judicial officers likely privilege the opinions of these independent court appointed “experts” over others including non-abusive parents, children, children’s regular therapists, child protection officers and the police ([32], pp. 33–37; [45]; [57], pp. 150–51). The concern, highlighted in the limited Australian research (n = 2 studies) to date, is the apparent lack of adequate consideration of domestic violence in these reports ([32]; [34], p. 91).
Forming part of a larger project examining allegations of domestic violence in family law proceedings; the first Australian study undertaken on this topic revealed that, “no views were generally expressed in family reports about specific allegations of domestic violence” ([34], p. 91). Analyses of evidentiary material about domestic violence in family reports in n = 300 family law court case files resulted in the conclusion that, “of all allegations raised, no more than 10% in any were fully or partially corroborated by a Family Report, and no more than 2% were fully or partially discredited” ([34], p. 91).
Shea Hart’s [32] qualitative analyses of n = 20 family court judgements sought to unpack the role of family reports in judicial constructions of the best interests of the child in cases where domestic violence was alleged. She found that the “context of violence within the family was not central to the family report assessments” ([32], p. 37). Further, family reports referred to in the judgments analysed “largely failed to address the children’s exposure to domestic violence, its impact on the child, and the potential future risk for the child and adult victim” ([32], p. 37).
Coercive control was frequently reconstituted as mutual parental “conflict”, and it was this, rather than exposure to what was often extreme acts of domestic violence by fathers against mothers, which impacted adversely on the children. While it is the case that children from high-conflict families can experience adverse effects, their experiences and needs are different from those living within environments characterised by coercive control. High conflict relationships are characterised by mutual distrust and disagreement. This is fundamentally different from contexts where a perpetrator’s intent is to wield power and control over their victim/s via numerous tactics aimed to intimidate and incite fear ([32], p. 37; [36], p. 191; [65], pp. 294–95).
Even in the few cases where coercive control was acknowledged as an issue, any adverse effects to children were commonly ignored, minimised or de-contextualised from the violence. Further, no reference was made to family reports having outlined the potential risks of ongoing exposure to violence if children were placed in the care of perpetrators ([32], pp. 35–37).
Judicial reference to family reports in the judgments analysed by Shea Hart [32] also tended to construct women within stereotypical gendered frameworks which negated their credibility. Further, report writers and in turn judges, appeared to have limited or no understanding of domestic violence and its impacts. Thus victim mothers were referred to as “hostile” and or “irresponsible in their parenting”. They were situated within a strong discourse of parental alienation; berated for interfering, destabilising and sabotaging relationships between violent men and their children. There was no recognition that maternal “hostility” could be symptomatic of victimisation and/or a mother’s reasonable fear for the safety of herself and her children. Neither was it suggested that “alienating behaviours” could be realistic actions taken by mothers to protect their children from further harm ([32], pp. 35–37).
The outcome was the potential re-exposure of children and adult victims to domestic violence through parenting orders that did not provide an adequate assessment of domestic violence allegations. Rather than prioritising child safety, the family report assessments referred to in the judgments examined tended to construct the child’s best interests in terms of maintaining the parent/child relationship, even if that parent was domestically violent ([32], p. 37).
Shea Hart’s [32] study is unique; it is the first in Australia to systematically consider the role of family reports in family court proceedings. However, given the small sample size and the fact that assessment of these reports was based on secondary judicial reference, we need to be careful before drawing definitive conclusions regarding the Australian situation. Her [32] findings are nonetheless supported by more rigorous research undertaken in the United States and United Kingdom.
An emerging body of research exploring custody evaluations in cases of domestic violence exists in the United States [24,56,66,67,68,69,70,71]. As summarised by Saunders et al. ([56], pp. 16–27), these studies generally consist of surveying/interviewing evaluators and/or undertaking content analyses of their reports to the court.
Results from this body of research show a tendency toward gender bias/stereotyping and misunderstanding about the nature of domestic violence and its impact on victims. More specifically, custody evaluators frequently: (1) fail to document and understand the nature and risk of coercively controlling violence; (2) question the credibility of mothers by presenting them as having made false or inflated allegations of abuse; (3) label victims “unfriendly” or “alienating” parents; (4) de-contextualise trauma symptoms in victims from domestic violence. Each of these points is highlighted below.
As reported above, research suggests that judicial officers often fail to take domestic violence into account when making assessments of the child’s best interests in child custody proceedings. On a more positive note, studies from the United States do show that when judges possess information about domestic violence they are more likely to take protective action toward adult victims and their children, “though they failed to do so in the vast majority of cases” ([65], p. 299). This suggests that the proportion of judges who respond protectively in domestic violence cases could improve if abuse was reported to the family court, all allegations were properly investigated by evaluators, and their recommendations shaped in response to this ([65], p. 299). Unfortunately, however, evaluators frequently fail to discuss domestic violence in custody evaluations even when there is significant substantiating evidence that is has occurred. Further, it is documented that there is an apparent lack of understanding about the nature of coercive control, and the on-going risk this type of violence poses to adult victims and their children.
For example, in their examination of family court case files in one jurisdiction in the United States (n = 102 evaluations), Logan et al. [68] found few differences in the content of custody evaluations or subsequent recommendations between domestic and non-domestic violence cases. The majority of the domestic violence cases in this study had protection orders in place, yet evaluators still failed to investigate the nature and extent of the abuse. Even more concerning, for the authors, was the fact that the custody evaluators did not explore domestic violence as a “way of attending to the child’s safety needs” ([68], p. 735). They argue that, given the risk factors to children and adult victims in cases of domestic violence, the concept of “the best interests of the child’ should suggest heightened attention to domestic violence in custody evaluations, especially given judicial reliance on evaluators” reports and recommendations. By not addressing domestic violence as a clear risk factor for children’s safety, custody evaluators were subsequently failing “to meet the best interests of the child standard” ([68], pp. 735–37).
Evaluator failure to understand the nature of coercive control is highlighted in the research of Hans et al. [70], who undertook a survey of n = 607 custody evaluators from across the United States. Factorial vignettes were used to quantitatively examine evaluators’ assessment in hypothetical cases of coercively controlling versus mutual violence occurring in the context of a high conflict relationship. Results showed that most evaluators recommended joint custody regardless of the type of violence. Given that custody evaluators’ recommendations can have a large impact on judges’ final decision, this finding was “troubling given the greater risks associated with coercively controlling violence and the higher likelihood of that this type of violence will continue even after separation and divorce” ([70], pp. 963–64).
Davis, et al. [67] undertook statistical analyses of case files (n = 69) and interviews with evaluators (n = 15) to explore “outcomes of custody and visitation disputes when there is a history of domestic violence by examining the knowledge and beliefs about domestic violence that custody evaluators bring to their court-ordered task, how they investigate allegations, and how their recommendations influence court orders” ([67], p. ii). Whilst the conclusions and recommendations in the custody evaluators’ report had a determining influence on court outcomes, evidence of extreme domestic violence was not predictive ([67], p. 85).
The primary influence on the evaluators’ conclusions and recommendations and thus final court outcomes, was their assessment of the risk around on-going serious domestic violence. However, these risk assessments were predicated on evaluator knowledge of domestic violence, namely, whether or not it was understood as being an issue of power and control. Few evaluators understood domestic violence as coercive control. Most either saw it as mutual conflict, explained it as a problem of perpetrators’ poor impulse control/anger management or as a result of victim provocation. As a result, most evaluations then went on to recommend custody and visitation arrangements that would not protect the mother and children from further abuse ([67], pp. vii, 85).
The reconstitution of coercive control in terms of victim blaming and claims of mutual conflict derives from the family systems/interaction approach to domestic violence ([31], p. 11). From this perspective domestic violence is seen as resulting from reciprocal interactions within the family ([61], p. 95). Violence within this context must therefore be analysed from “the perspective of family relationships, without there being a clear victim and perpetrator” ([31], p. 11). This blatantly contrasts with what is understood about coercively controlling violence and when utilised by custody evaluators it can put women and children at critical risk of harm ([61], p. 95).
Complementing the work of Davis et al. [67], Haselschwerdt et al. [69] conducted interviews with evaluators (n= 23) to determine more about their perspectives and the influence of this on their recommendations in cases of domestic violence. They found that custody evaluators tended to come from either one of the two perspectives (i.e., family systems/interaction or coercive control) and that the theoretical approach taken aligned with beliefs about the relevance of domestic violence to custody decisions, the credibility of victim allegations and ultimately their recommendations to the court ([69], p. 1704).
The dominant discourse of evaluators (n = 14) expressing a family systems/interaction approach was that of domestic violence being stress induced, normative, mutual, the result of a “conflict” in the relationship and thus likely to end after separation. While acknowledging that coercively controlling violence did exist, they considered it to be rare in family court proceedings. Rather it was something that happened “out there” amongst a minority of particularly “violent, evil, and horrible people” ([69], p. 1708). Indeed, when faced with a scenario of coercive control, they appeared unable to recognise it and simply relabelled it as “conflict”. As such, it did not factor into their evaluations.
This group of evaluators did not believe that spousal abuse was relevant to child custody, largely viewing a father’s relationship with his partner as separate from his relationship with his children, all but one failed to acknowledge that perpetrators of domestic violence might lack positive parental skills and all implied that the abuser was able to co-parent “independently from the domestic violence” ([69], p. 1709). However, concern was expressed about the “emotional volatility of the victimized parent”, which called into question the parental capacity of abused mothers. In addition, all expressed “concerns about mothers making false or exaggerated domestic violence allegations—which were ‘common and purposeful’” ([69], p. 1709). This issue raised further apprehension around victims’ parental capacity and ability to co-parent effectively with the father. The resulting recommendations made to the courts prioritised co-parenting and the father/child relationship with little mention of safety concerns where domestic violence was alleged ([69], p. 1712).
Evaluators (n = 9) who utilised coercive control to understand domestic violence all stressed that “power and control by male partners” was “central to the dynamics of domestic violence in the majority of their cases” ([69], p. 1704). For these evaluators, identifying coercive control was crucial because it was highly relevant to child custody. They expressed concern about the ability of coercively controlling fathers to be good parents, the negative effects on children from living with domestic violence and the potential for concurrent direct child abuse to occur. They also asserted the view that false allegations in the context of custody disputes were rare amongst mothers, but estimated that over 50% of men falsely claim to be victims of domestic violence. Domestic violence was more “downplayed or underreported” by victims than “falsely alleged”. While they “considered ongoing father-child contact to be important for children, they prioritised victim safety” in cases of coercive control, recommending, for example, supervised visitation and exchanges. Joint custody or overnight visits with perpetrators were also discouraged ([69], pp. 1705–6).
The small sample sizes in Davis et al. [67] and Haselschwerdt et al. [69] research could lend itself to criticism; however, both analyses are corroborated by the results of a large scale quantitative study conducted by Saunders et al. [56,66]. Here a survey of n = 465 custody evaluators was undertaken to ascertain what factors were associated with their recommendations. It was found that belief in false allegations of domestic violence was significantly related to other beliefs about this type of abuse and custody/visitation including that: (1) mothers alienate their children from the other parent; (2) mothers harm the children if they do not co-parent with the perpetrator; and (3) domestic violence is not important to consider in custody and visitation decisions. Arguably, these sets of beliefs are likely to come from evaluators taking a family systems approach. In contrast, evaluators who said they would explore hypotheses about coercive-controlling behaviour and the mental health consequences of living with this type of violence were more likely to believe that: (1) domestic violence is important in custody decisions; (2) mothers do not make false allegations; and (3) refusing to co-parent does not harm the child. Further, believing in false allegations of domestic violence was related to recommendations for custody/visitation arrangements that would increase abuser-child contact. In fact, the biggest predictor of custodial/visitation recommendations was beliefs held by evaluators about domestic violence. Those holding what presented as a family systems view were, for example, more likely to recommend abusive fathers have custody of their children ([66], pp. 479–80).
Finally, in Pence et al. [24] examination of domestic violence related custody reports and case files (n = 18), it was observed that evaluators did not “consistently describe or explain the nature and context of the violence occurring”. Instead, in the reports examined, evaluators “did just the opposite”—they obscured, discounted or explained the domestic violence away ([24], pp. 5–6). This silencing of domestic violence in evaluators’ reports came about as the result of one or more of the following:(1)Only mentioning domestic violence in a cursory way and/or limiting consideration to “one or two discrete incidents”. In this instance, violence was presented as an isolated event, without explaining what happened or considering whether or not it might form part of a larger pattern of coercive control. This approach fails to “explicate for the court how the domestic violence might affect”: (a) current and future health of children and the abused parent; (b) safety and wellbeing of children and the abused parent; (c) the parenting capacities of the parties, and (d) the ability of the parents to successfully share parenting responsibilities ([24], pp. 7–8).(2)Concentration on physical violence alone—The custody evaluation reports examined often focussed exclusively on physical violence without consideration of other features and characteristics of domestic violence, such as coercive control ([24], p. 8).(3)Subjective weighting of information—Another “reoccurring issue was the widespread practice among evaluators of deciding what ‘counts’ when it comes to domestic violence, without a thorough exploration of the circumstances and without regard to established research on risk factors associated with abuse” ([24], p. 9). Information was discounted, for example, from children’s long term therapists, and evaluators failed to explain how different sources and types of information were considered and weighed in formulating their opinions ([24], p. 10).(4)Violence was frequently “subsumed under alternative frameworks” including being: (a) described as “high conflict”, being “packaged up as a ‘communication problem or a case of mutual parental conflict’”; or (b) hidden when evaluators subsumed it under a mental health framework—there were several cases where the child and victim parent’s reaction to domestic violence was framed as evidence of mental illness or pathology without apparent justification or consideration of alternative explanations (i.e., an indication of trauma resulting from victimisation). There was also evidence that evaluators administered psychological tests that were not designed to detect domestic violence or identify its impact on family members with results then being used to make future predictions about the parents; and (c) references to parental alienation by the victim of domestic violence were used to “explain away” domestic violence with some evaluators “quick to assume that a child’s attachments and/or aversions towards one parent were the product of manipulation, suggestion, or contempt by the adult victim” ([24], pp. 15–16).(5)Assumptions treated as fact—it was observed that, for example, “the nature and context of domestic violence was also hidden when evaluators’ assumptions and isolated observations stood in for the actual facts of the case. It was not uncommon for an evaluator to treat an inference, observation or opinion as a factual finding and then draw a conclusion that did not represent what was actually going on” ([24], p. 19).(6)There was little evidence in the reports examined of any connection between the dynamics of domestic violence and parental or co-parenting capacity. Not once was an assessment made about how the experience of domestic violence impacts either the victim or offender’s capacity to parent, either individually or together as co-parents ([24], p. 20).(7)The impact on children of living with domestic violence was rarely discussed. In fact, when it was raised the evaluators noted, “in a conclusory fashion, that the violence simply had not impacted on the children” ([24], p. 20).(8)Domestic violence was frequently constructed as being “a thing of the past” and something that adult victims and their children just needed to “get over” and “move past” ([24], pp. 26–27).
Unsurprisingly, given the ways in which domestic violence was obscured, discounted or explained away in the evaluations analysed by Pence et al. ([24], p. 30), the authors report recommendations being made by the courts that “seemed to bear little or no relationship to the problems that domestic violence created for children and their abused parents”. Rather, “evaluators’ recommendations seemed more tied to their own wishful thinking about the future than to the present realties of domestic violence.” This was despite the fact that the violence reported in the case files involved ongoing coercively controlling violence.
Thus, evaluator misconceptions about domestic violence and the use of gendered stereotypes can place children at further risk of harm through consequent recommendations for perpetrators to have significant contact with their children. In the process, adult victims can also be exposed to further domestic violence. Evaluator misconceptions have been attributed to a lack of specialised domestic violence training around coercive control and pro forma regarding the methods and sources of information that should be gathered during evaluations [38]. Haselschwerdt et al. [69], for example, found that evaluators who utilised coercive control to understand domestic violence reported extensive domestic violence training and education. In contrast, those employing family systems theory reported little domestic violence training (i.e., 1–3 seminars to no formal training in the past 5 years). Similar results around domestic violence misconceptions and training were also found by Saunders et al. ([66], p. 480).
It has also been argued that many evaluators over-rely on limited information sources to make assessments, e.g., only interviewing the parents and children for short periods of time, failing to consult with extended family, teachers, psychologists, child protection workers, police and others involved in the children’s lives [56]. Research by Bow and Boxer ([71], p. 1394), however, calls into question this claim as well as the lack of training arguments. Here results from a survey of (n = 115) custody evaluators revealed adequate training and the use of multiple sources of data collection. Yet, in spite of this, “robust, specialized domestic violence instruments, tests, and questionnaires were underutilized” ([71], p. 1400).
Bow and Boxer’s [71] research is now over a decade old and was conducted prior to the mainstream conceptualisation of domestic violence as coercive control. Further, the level of information gathered lacked the nuance of more recent studies. For example, Bow and Boxer’s ([71], p. 1400) claim that training was adequate was premised on the fact that evaluators, on average, over an undisclosed period of time, attended four seminars (median) and read a median of 18 articles/books. They did not consider the content of this training or explore the relationship between training, beliefs and recommendations. Indeed, a large proportion of evaluators still said that they would make recommendations for children to have extensive contact (i.e., sole or joint custody) with perpetrators in cases where the violence was not considered mutual ([71], p. 1403).
Research exploring victim’s experiences provides additional insight into the report writing process and its impact on adult victims and their children. To date two studies, one undertaken in the United Kingdom and the other in the United States, included interviews with female victims of coercively controlling violence [43,56]. The results of this research mirror those reported in studies of evaluators.
In the United Kingdom, “expert” reports play a vital role in ensuring outcomes that are safe for adults and children in British family law proceedings. After conducting n = 34 in-depth interviews with women who were victims of domestic violence, Coy et al. ([43], pp. 54–60) reported a generally negative perception of the report writing process and recommendations resulting in potentially risky outcomes for women and their children. All the women interviewed wanted their child(ren) to have contact with fathers and develop/maintain a strong relationship with them. However, these women also wanted assurances that both they and their children would be physically and emotionally safe. Nevertheless, the “expert” reports frequently failed to reflect these concerns. This situation had resulted from the inadequate amount of time report writers spent with the women and their children. The outcome as perceived by the women interviewed were recommendations that put adult and child victims at further risk of harm. More specifically, concerns were expressed that report writers: (1) minimised ex-partners’ violence; (2) down-played the impacts of living with domestic violence on children; (3) separated men’s violence from their fathering; (4) prioritised contact between domestically violent men and their children with subsequent inadequate attention to the consequential harms and risks; (5) paid inadequate attention to women’s on-going needs for safety and welfare; (6) failed to understand the impact of victimisation on women’s parenting; and (7) appeared to be convinced by abusive men’s accounts despite the fact that domestic violence perpetrators are highly skilled manipulators.
Similar issues with the custodial evaluation process and outcomes were noted by n = 24 women interviewed by Saunders et al. ([56], pp. 102–9) in the United Sates. Three themes related to negative outcomes resulting from inadequate custody evaluation reports emerged from victims’ interviews: (1) domestic violence was ignored or minimised in custody evaluations and thus subsequent decisions; (2) there was an overreliance on maternal mental health issues to assess survivors credibility and parenting capacity; and (3) negative child custody outcomes were attributed in part to limitations in the custody evaluation process, i.e., the process was one-sided and incomplete because it relied on limited sources of information.
5. Summary and Discussion
Despite what is now known about coercively controlling violence, the negative impacts on children of living with it, the questionable parenting capacities of abusers, and legislative change suggesting that the best interests of the child are dependent on protecting them from this type of abuse, research from Australia, Ireland, the United Kingdom and United States, suggest that the family law system is likely failing children and adult victims of domestic violence.
Judicial determination of children’s best interests appear weighted more toward the parental rights of abusers than the safety of children. The inconsequentiality of domestic violence to judicial determinations of children’s best interests appears to stem from normative assumptions around gender and a poor understanding of coercive control. However, judicial officers are not experts in domestic violence and they can only make decisions based on the evidence before them. Given its private nature, corroborating domestic violence can be difficult. Fortunately or perhaps unfortunately, independent assessments of domestic violence can be provided to the court by “expert” family assessors.
Research and commentary suggest that judicial officers are likely influenced by the assessments and recommendations made by these “experts” [32,57,61,67,70]. Of deep concern is the emerging body of research outlined in this paper that calls into serious question the apparent expertise of these “experts” when it comes to understanding the nature of coercively controlling violence. It would seem that many of the views held by the judiciary with regard to domestic violence are reflected in the assessments and subsequent recommendations made by these “experts”. Here, maintaining abusive fathers’ relationships with their children are the primary consideration in determinations of a child’s best interests. Achieving this often in the face of overwhelming evidence to the contrary, the judiciary and the “expert” report writers need to make coercively controlling abuse and intimidation “disappear”. Coercive control is thus ignored or minimised, re-constructed as inconsequential (e.g., impacts and risks are ignored), re-constituted as something else (e.g., mutual violence) and subsumed under alternative gendered narratives that call into question women’s credibility but not men’s (e.g., women manipulate and lie, men are to be taken at face value).
In the United States, Retired Justice of the New York Supreme Court, Marjory Fields ([61], p. 94), expresses concern with regards to the extant research showing that judges base their orders on the recommendations of custody evaluations. She notes, these “recommendations determine the extent and conditions of visits by fathers who were abusive to the mothers of their children. Thus, the safety of...victims and their children can be compromised by evaluators who recommend custody or unsupervised visits for...offenders...[and] there is an assumption among evaluators working with the courts that visits are to be allowed under all circumstances...of course, the judges are responsible for their decisions and improper delegation of their decisions to evaluators. Evaluators, however, must take responsibility for contributing to judicial misconceptions that [domestic violence] presents no risk of harm to children...this misconception is the reason for…dangerous orders [being put in place]”.
Perhaps the first step, therefore, is to provide both judicial officers and court appointed “experts” with the understanding needed to more fully understand the significance of domestic violence to a child’s best interests. Studies from the United States suggest that evaluator misconceptions around domestic violence are the likely consequence of inadequate training. Indeed, when evaluators receive training and have an understanding of coercive control, more thorough assessments are undertaken and they are less likely to possess erroneous beliefs about women and domestic violence and more likely to recommend parenting plans that reduce the risk of further harm to adult victims and their children [56].
Conflicts of Interest
The author declares no conflict of interest.
References
Jacquelyn C. Campbell, Nancy Glass, Phyllis W. Sharps, Kathryn Laughon, and Tina Bloom. “Intimate Partner Homicide: Review and Implications of Research and Policy.” Trauma Violence Abuse 8 (2007): 246–69. [Google Scholar] [CrossRef] [PubMed]
Catalano Shannan. Intimate Partner Homicide in the United States; Washington: Department of Justice, 2006.
Mari L. Aldridge, and Kevin D. Browne. “Perpetrators of Spousal Homicide.” Trauma Violence Abuse 4 (2003): 265–76. [Google Scholar] [CrossRef] [PubMed]
Heidi Stockl, Karen Devries, Alexandra Rotstein, Naeemah Abrahams, Jacquelyn Campbell, Charlotte Watts, and Caludia G. Moreno. “The Global Prevalence of Intimate Partner Homicide: A Systematic Review.” The Lancet 382 (2013): 859–65. [Google Scholar] [CrossRef]
New South Wales Domestic Violence Death Review Team. Domestic Violence Death Review Team Annual Report; Sydney: New South Wales Government, 2015.
Evan Stark. Coercive Control: How Men Entrap Women in Personal Life. Oxford: Oxford University Press, 2007. [Google Scholar]
Home Office. Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework. London: Home Office, 2015. [Google Scholar]
Australian National Council to Reduce Violence against Women and Children. Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and Children, 2009–2021; Canberra: Department of Families, Housing, Community Services and Indigenous Affairs, 2009.
The United States Department of Justice. “What Is Domestic Violence? ” Available online: http://www.justice.gov/ovw/domestic-violence (accessed on 9 March 2016).
Liesl Mitchell. Domestic Violence in Australia—An Overview of the Issues; Canberra: Social Policy Section, Australian Government, 2011.
Daniel K. O’Leary, and Ronald D. Maiuro. Psychological Abuse in Violent Domestic Relationships. New York: Springer Publishing, 2001. [Google Scholar]
Lynne Harne, and Jill Radford. Tackling Domestic Violence: Theories, Policies and Practice. Berkshire: Open University Press, 2008. [Google Scholar]
Anastasia Powell, and Suellen Murray. “Children and Domestic Violence: Constructing a Policy Problem in Australia and New Zealand.” Social and Legal Studies 17 (2008): 453–73. [Google Scholar] [CrossRef]
Gillian Weaver-Dunlop, Alberta Kendra Nixon, Alberta Leslie Tutty, Christine Walsh, and Cindy Ogden. “A Review of Policies to Address Children/Youth Exposed to Domestic Violence Background.” In Paper presented at the International Policy Forum on Family Violence, Calgary, AB, Canada, 1–2 November 2006.
Patrick Parkinson, and Catherine Humphreys. “Children Who Witness Domestic Violence—The Implications for Child Protection.” Child and Family Law Quarterly 10 (1998): 147–60. [Google Scholar]
Martha A. Matthews. “The Impact of Federal and State Laws on Children Exposed to Domestic Violence.” The Future of Children 9 (1999): 50–66. [Google Scholar] [CrossRef] [PubMed]
Australian Law Reform Commission. Family Violence—A National Legal Response. Canberra: Australian Law Reform Commission, 2010. [Google Scholar]
Stephanie Holt, Helen Buckley, and Sadhbh Whelan. “The Impact of Exposure to Domestic Violence on Children and Young People: A Review of the Literature.” Child Abuse and Neglect 32 (2008): 797–810. [Google Scholar] [CrossRef] [PubMed]
Kelly Richards. “Children’s Exposure to Domestic Violence in Australia.” In Trends and Issues in Crime and Criminal Justice. Canberra: Australian Institute of Criminology, 2011. [Google Scholar]
Adam Tomison. “Exploring Family Violence: Links between Child Maltreatment and Domestic Violence.” In Issues in Child Abuse Prevention. Melbourne: Australian Institute of Family Studies, 2000. [Google Scholar]
Lesley Laing. Domestic Violence in the Context of Child Abuse and Neglect. Sydney: Australian Domestic Violence Clearinghouse, 2003. [Google Scholar]
Bedi Gillindger, and Chris Goddard. “Intimate Partner Violence: What Are the Impacts on Children? ” Australian Psychologist 42 (2007): 66–77. [Google Scholar]
Jane E. M. Callaghan, Joanna H. Alexander, Judith Sixsmith, and Lisa Chiara Fellin. “Beyond ‘Witnessing’: Children’s Experiences of Coercive Control in Domestic Violence and Abuse.” Journal of Interpersonal Violence, 2015. [Google Scholar] [CrossRef] [PubMed][Green Version]
Ellen Pence, Gabrielle Davis, Cheryl Beardslee, and Denise Gamache. Mind the Gap: Accounting for Domestic Violence in Child Custody Evaluations. Minneapolis: The Batter Women’s Justice Project, 2012. [Google Scholar]
Einat Peled. “Parenting by Men Who Abuse Women: Issues and Dilemmas.” British Journal of Social Work30 (2000): 25–36. [Google Scholar] [CrossRef]
Statistics Canada. Family Violence in Canada: A Statistical Profile 2001; Ottawa: Minister of Industry, 2001.
Domestic Violence Resource Centre Victoria. “Just Say Goodbye”: Parents who Kill Their Children in the Context of Separation. Melbourne: Domestic Violence Resource Centre Victoria, 2012. [Google Scholar]
Kate Cavanagh, Emerson R. Dobash, and Russell P. Dobash. “The Murder of Children by Fathers in the Context of Child Abuse.” Child Abuse and Neglect 31 (2007): 731–46. [Google Scholar] [CrossRef] [PubMed]
Carolyn H. Johnson. Come with Daddy: Child Murder-Suicide after Family Breakdown. Crawley: Western Australian Press, 2005. [Google Scholar]
Special Taskforce on Domestic and Family Violence in Queensland. Not Now, Not Ever; Brisbane: Queensland Government, 2015.
Peter G. Jaffe, Nancy K. D. Lemon, and Samantha E. Poisson. Child Custody and Domestic Violence: A Call for Safety and Accountability. Thousand Oaks: Sage, 2003. [Google Scholar]
Amanda Shea Hart. “Child Safety in Australian Family Law: Responsibilities and Challenges for Social Science Experts in Domestic Violence Cases.” Australian Psychologist 46 (2011): 31–40. [Google Scholar] [CrossRef]
Allison C. Morrill, Dai Jianyu, Samantha Dunn, Iyue Sung, and Kevin Smith. “Child Custody and Visitation Decisions When the Father Has Perpetrated Domestic Violence against the Mother.” Violence against Women 11 (2005): 1076–107. [Google Scholar] [CrossRef] [PubMed]
Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu, and Matthew Grey. Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-Reform Exploratory Study. Canberra: Australian Institute of Family Studies, 2007. [Google Scholar]
Carol Smart, Vanessa May, Amanda Wade, and Clare Furniss. Residence and Contact Disputes in Court, Volume 1; London: Department for Constitutional Affairs, 2005.
Joan S. Meier. Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining Solutions. Washington: The George Washington University Law School, 2003. [Google Scholar]
Sharon Woffordt, Delbert E. Mihalic, and Scott Menard. “Continuities in Marital Violence.” Journal of Family Violence 9 (1994): 195–225. [Google Scholar] [CrossRef]
Jennifer L. Hardesty, Megan L. Haselschwerdt, and Michael P. Johnson. Domestic Violence and Child Custody. Champaign: University of Illinois at Urbana-Champaign, 2011. [Google Scholar]
Lundy Bancroft, Jay G. Silverman, and Daniel Ritchie. The Batterer as a Parent: Addressing the Impact of Domestic Violence on Family Dynamics. Thousand Oaks: Sage, 2002. [Google Scholar]
Lundy Bancroft. “The Batterer as a Parent.” Court Review 36 (2002): 44–49. [Google Scholar]
Lorraine Radford, and Marianne Hester. Mothering Through Domestic Violence. Philadelphia: Jessica Kingsley Publishers, 2006. [Google Scholar]
Daniel G. Saunders. “Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns.” Applied Research Forum: National Online Resource Center on Violence Against Women, 2007. Available online: http://www.vawnet.org/applied-research-papers/print-document.php?doc_id=1134 (accessed on 9 March 2016).
Maddy Coy, Katherine Perks, Emma Scott, and Ruth Tweedale. Picking Up the Pieces: Domestic Violence and Child Contact. London: Rights of Women and CWASU, 2012. [Google Scholar]
Catherine M. Naughton, Aisling T. O’Donnell, Ronni M. Greenwood, and Orla T. Muldoon. “Ordinary Decent Domestic Violence: A Discurcive Analysis of Family Law Judges’ Interviews.” Discourse and Society 26 (2015): 349–65. [Google Scholar] [CrossRef]
Zoe Rathus. “Social Science or ‘Lego-Science’? Presumptions, Politics, Parenting and the New Family Law.” QUT Law Review 10 (2010): 164–90. [Google Scholar] [CrossRef]
Patricia Easteal, and Dimian Grey. “Risk of Harm to Children Exposure to Family Violence: Looking at How It Is Understood and Considered by the Judiciary.” Australian Journal of Family Law 27 (2013): 59–77. [Google Scholar]
Dale Bagshaw, Thea Brown, Sarah Wendt, Alan Campbell, Elspeth McInnes, Beth Tinning, Becky Batagol, Adiva Sifris, Danielle Tyson, Joanne Baker, and et al. The Effect of Family Violence on Post-Separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families Who Separated Post-1995 and Post-2006; Canberra: Australian Government, 2010.
Richard Chisholm. Family Courts Violence Review; Canberra: Australian Government, 2009.
Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, and Lixia Qu. Evaluation of the 2006 Family Law Reforms; Canberra: Australian Government, 2009.
Stephanie Holt. “Domestic Violence and Child Contact: Positioning Children in the Decision-Making Process.” Child Care in Practice 17 (2011): 327–46. [Google Scholar] [CrossRef]
Molly Dragiewicz. “Domestic Violence and Family Law: Criminological Concerns.” International Journal for Crime, Justice and Social Democracy 3 (2014): 121–34. [Google Scholar] [CrossRef]
Chris O’Sullivan. “Estimating the Population at Risk for Violence during Child Visitation.” Domestic Violence Report 5 (2000): 77–79. [Google Scholar]
Leora N. Rosen, and Chris S. O’Sullivan. “Outcomes of Custody and Visitation Petitions When Fathers Are Restrained by Protection Orders: The Case of the New York Family Courts.” Violence against Women 11 (2005): 1054–75. [Google Scholar] [CrossRef] [PubMed]
Miranda Kaye, Julie Stubbs, and Julia Tolmie. “Domestic Violence, Separation and Parenting: Negotiating Safety Using the Legal Process.” Current Issues in Criminal Justice 15 (2003): 73–94. [Google Scholar]
Mary A. Kernic, Daphne J. Monary-Ernsdorff, Jennifer K. Koepsell, and Victoria L. Holt. “Children in the Crossfire: Child Custody Determinations among Couples with a History of Intimate Partner Violence.” Violence against Women 11 (2005): 991–1021. [Google Scholar] [CrossRef] [PubMed]
Daniel.G. Saunders, Kathleen C. Faller, and Richard M. Tolman. Child Custody Evaluators’ Beliefs about Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation; Washington: United States Department of Justice, 2012.
Amanda Shea Hart. “Children Exposed to Domestic Violence: Whose ‘Best Interests’ in Family Court.” Ph.D. Thesis, University of South Australia, Adelaide, Australia, 2006. [Google Scholar]
Karen Czapnskiy. “Domestic Violence, the Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts.” Family Law Quarterly 27 (1993): 247–77. [Google Scholar]
Donna Roberts, Peter Chamberlain, and Paul Delfabbro. “Women’s Experiences of the Process Associated with the Family Court of Australia in the Context of Domestic Violence: A Thematic Analysis.” Psychiatry Psychology and Law 22 (2014): 599–615. [Google Scholar] [CrossRef]
Rita Smith, and Pamela Coukes. “Fairness and Accuracy in Evaluations of Domestic Violence and Child Abuse in Custody Evaluations.” The Judges Journal 36 (1997): 38–55. [Google Scholar]
Marjory D. Fields. “Getting Beyond ‘What Did She Say to Provoke Him’? ” Violence against Women 14 (2008): 93–99. [Google Scholar] [CrossRef] [PubMed]
Richard A. Gardner. “Parental Alienation Syndrome vs. Parental Alienation: Which Diagnosis Should Evaluators Use in Child-Custody Disputes? ” The American Journal of Family Therapy 30 (2002): 93–115. [Google Scholar] [CrossRef]
Joan S. Meir. Parental Alienation Syndrome and Parental Alienation: A Research Review. Harrisburg: National Resource Center on Domestic Violence, 2006. [Google Scholar]
Judith Cashmore, and Patrick Parkinson. “Children’s Participation in Family Law Disputes: The Views of Children, Parents, Lawyers and Counsellors.” Family Matters 82 (2009): 15–21. [Google Scholar]
Evan Stark. “Rethinking Custody Evaluation in Cases Involving Domestic Violence.” Journal of Child Custody6 (2009): 287–321. [Google Scholar] [CrossRef]
Daniel G. Saunders, Richard M. Tolman, and Kathleen Faller. “Factors Associated with Child Custody Evaluators’ Recommendations in Cases of Intimate Partner Violence.” Journal of Family Psychology 27 (2013): 473–83. [Google Scholar] [CrossRef] [PubMed]
Michael S. Davis, Chris S. O’Sullivan, Kim Susser, and Marjory D. Fields. Custody Evaluations When There Are Allegations of Domestic Violence: Practices, Beliefs, and Recommendations of Professional Evaluators; Washington: United States Department of Justice, 2007.
T. K. Logan, Robert Walker, Carol E. Jordan, and Leah S. Horvath. “Child Custody Evaluations and Domestic Violence: Case Comparisons.” Violence and Victims 17 (2002): 719–42. [Google Scholar] [CrossRef] [PubMed]
Megan L. Haselschwerdt, Jennifer L. Hardesty, and Jason D. Hans. “Custody Evaluators’ Beliefs about Domestic Violence Allegations during Divorce: Feminist and Family Violence Perspectives.” Journal of Interpersonal Violence 26 (2011): 1694–719. [Google Scholar] [CrossRef] [PubMed]
Jason D. Hans, Jennifer L. Hardesty, Megan L. Haselschwerdt, and Laura M. Frey. “The Effects of Domestic Violence Allegations on Custody Evaluators’ Recommendations.” Journal of Family Psychology 28 (2014): 957–66. [Google Scholar] [CrossRef] [PubMed]
James N. Bow, and Paul Boxer. “Assessing Allegations of Domestic Violence in Child Custody Evaluations.” Journal of Interpersonal Violence 18 (2003): 1394–41. [Google Scholar] [CrossRef] [PubMed]
1The concept of parental alienation and/or Parental Alienation Syndrome has invoked much controversy and debate amongst social scientists, legal scholars, men’s rights activists and women’s groups ([39], pp. 168–73; [62,63]). Parental alienation is the process by which one parent, in the context of child custody disputes, psychologically manipulates a child into showing unwarranted fear, disrespect or hostility toward the other parent. This can result in the child refusing contact with and becoming estranged from the alienated parent [62,63]. Of concern, within the context of coercive controlling violence, is that claims of parental alienation can be used by perpetrators to mask their abuse and lay blame on the victim parent. Bancroft and Colleagues ([39], p. 168) have subsequently argued, that within the context of custody proceedings, “the use of parental alienation charges by alleged or confirmed abusers has become a national crisis for battered mothers”.
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