We have produced a guidance note to explain how family courts deal with cases where there are allegations of domestic abuse.
You can view or download the guidance note here. This is v2 (December 2018) which is very slightly modified since v1 in November 2018.
IMPORTANT UPDATE MAY 2021 : We will be revising this guidance note in light of some changes in the law and guidance. For those interested in finding out more, take a look at our posts with #domestic-abuse. The headline is that there is likely to be reduced use of Scott Schedules and an increased emphasis on patterns of controlling, coercive and abusive behaviour rather than incidents.
Bottom of page 9, top of page 10:
“Both parents are often given (well meaning) information or advice by support agencies (domestic abuse services, fathers’ rights groups etc.) that may include a mixture of what those services think the law is or should be, but which isn’t really what is likely to happen at all.”
Please name the “domestic abuse services” and “father’s rights” groups you are referring to here?
Can you also please explain how PD12J deals with the case of a child living with a parent who has perpetrated domestic abuse against the parent seeking contact?
Finally isn’t denying the child a relationship with the other parent without the authority of the court abuse in itself?
Top of page 13:
“There are lots of people whose job it is to support victims of domestic abuse, and to help them to rebuild and get on with their lives. Fathers seeking contact with their children through the family court may also be assisted by support services for men.”
So victims of domestic abuse are not father’s? Only fathers are seeking contact with their children, and presumably since they aren’t the victims, they must be the perpetrators.
Do you find this statement in any way biassed?
Page 17:
“Until the court has decided whether the allegations are true it will work on the basis that they might be true and will put safe arrangements in place. This might mean no contact or supervised contact.”
This only applies to allegations made by the parent the child is living with. If the parent seeking contact has made allegations they will give regarded as untrue (i.e. the child will not be removed from the alleged abusive parent) until findings are made.
At this point, if the court makes findings of abuse against the child the parent is living with it will have left that child in the care of the abusive parent for some weeks.
How can this possibly be protecting the child from an abusive parent?
This could happen in cases of parental alienation where the person that the child is living with is abusive but has managed to manipulate their way into covering it up. A presumption should not be made simply because a child is currently living with one party, especially if that party does not have any legal right to have the child live with them.
Parental alienation is an example of this
Page 18:
“For example, sometimes contact has been allowed because although there has been abuse the
parent who has suffered it still thinks it is more important to ensure their child has a relationship
with another parent and has found a way to keep it going without feeling unsafe. But sometimes it
has been allowed because the victim has felt unable to say No, or has been frightened about what
might happen if they did – or because they didn’t really realise what the risks were to their child.”
Apparently the parent who has allegedly suffered abuse has “allowed” the child to see the alleged abusive parent. This assumes once again there is only one parent victim and the child is living with that victim. This is a presumption which cannot be justified. It fails to take account of the very real prospect of the child living with an abusive parent.
Thanks for your numerous comments Brian. It’s probably helpful to explain that the guidance is intended for general use and is not legal advice. It cannot cover every eventuality, and we struggled to keep it to its existing length so had to strike a balance. In our experience the child is usually, but not always, living with the parent who is alleging domestic abuse. the guidance note very clearly acknowledges that not all such allegations will be true and that other sorts of abuse may be experienced by a child whose resident parent is knowingly making false allegations.
I’m a mother of 3 children.
I have been kicked out of my home and been denied any access to my children all because I was raped by their father and I needed support. Never have received any support ever.
[edited for legal reasons]
I will not give up until my children are free from that disgusting excuse for a man.
So I’ve been accused of a mental health disorder (which is false ) yet I have been left all by myself and offered no help and support.
I’m still here still fighting and o shall continue this way till my last breath leaves my body.
Hi ZP, i was just browsing looking for advice and i came across your post and what shocked me the most was that it sounded exactly like the position i am currently in now. i hope you got all the help and support you needed to be able to have your children again because all we have at the moment that our abusive ex`s cant take is our love for our children and hope each day for their return
regards T xx
Sorry to hear this. I had no support either just more abuse from people who were supposed to be helping. It’s sad. Did they apologise to you? They apologized to me and gave me a present in apology
Same here.
I have situational anxiety.
I have proven serious abuse.
He literally told the judge he wants them because I wouldn’t let him see them before a check he is safe, and that I brought this on myself, he also told the judge he wants them because he is alone in the county and has no friends and family.
I am being seen as the problem for daring to raise allegations.
Domestic abuse act and PD12J should be cancelled, it makes women think they have a chance, it is dangerous, should be cancelled, reality should be acknowledged, and women should be warned
Fully understand your situation the best of luck
Page 23:
“Such evidence will be important, but the court will still have to take into account all the evidence available because documented injuries do not always give a complete picture as to who was the aggressor (often there are conflicting accounts and sometimes both parties present with injuries which might be defensive).”
Or they could both have assaulted each other, yet another possibility which is ignored in this guidance.
See our previous reply. It is indeed possible that both parties have assaulted the other. This is why we have acknowledged that sometimes both parties will present with injuries.
Page 25:
“Each party must prepare a witness statement. Usually the person making the allegations goes first.”
Only one person making allegations? It’s common for both parties to make allegations, why haven’t you included the procedure for that eventuality?
See our previous replies. In our experience it isn’t terribly common for both parties to make counter allegations of physical assault. More typically, counter allegations will be of domestic abuse versus fabrication or mental health difficulties. But even where there are counter allegations of the same type someone has to go first, so that is likely to be the person who first made the allegations of abuse.
Page 29:
“WHAT IF THE PERSON ACCUSED OF ABUSE DOESN’T HAVE A LAWYER – WHO ASKS THE QUESTIONS WHEN THE PERSON COMPLAINING IS GIVING EVIDENCE?”
You’ve missed out the possibility of a party accused of domestic abuse having a McKenzie Friend with them who could ask questions on their behalf. Is this not preferable to the judge?
See our previous answers.
Use of a McKenzie for cross examination is a possibility. However, it is not something that is recommended in guidance and appears from case law only to be permitted in exceptional circumstances. We would not suggest it is preferable to a judge asking questions.
Page 35:
“Parents who have been found to have been domestically abusive, but who do not accept findings of domestic abuse, can find it hard to make progress with their contact applications. This may be because they are unlikely to be accepted on any domestic abuse perpetrators programme without a genuine acceptance of their abusive behaviour. A parent who understands that the findings have been made, but who continues to say these are wrong, is unlikely to be given a place on a course,and a parent who says they have accepted the findings but who is just saying the right words’ is unlikely to successfully complete the programme.”
You need to replace the word “parent” in this paragraph with “father”. No mother is ever ordered to attend a domestic abuse perpetrator’s programme because Cafcass do not commission these programmes for women, only men, despite programmes existing for women.
We understand that they are commissioning such programmes for women.
What is a “parent” supposed to do if they know the allegations are false and they did not do what the court “found” they had done? Are they now supposed to start lying convincingly to get through a DAPP? 51% is not a large margin of error and the court can be, and often is, wrong.
Appeal.
“Unless the decision is by magistrates the person who wants to appeal will need to get permission to appeal either from the judge who made the decision (this will usually be a Circuit Judge or a High Court Judge) or from the appeal court”
Wouldn’t this normally be a District Judge or Circuit Judge, not a High Court Judge?
No.
Page 47:
“A McKenzie Friend cannot speak on your behalf.” – unless the court grants them permission to do so.
See our previous replies. This is at a level of detail beyond the scope of this note.
how do I take it back to court on fact finding after a judge has side there’s been DV with out any proof. I have now got my medical files to prove that DV has never happened.
We have been informed that argument’s are classified as domestic abuse (everyone has arguments ) we have admitted to verbal arguments.
Please I’m in need of help
Hi Danielle,
I’m afraid the project isn’t able to give legal advice about individual cases. It sounds as if you need to try and get some legal advice from a lawyer. You can check the gov.uk website to find solicitors who do family legal aid work, although its not clear whether you would qualify for legal aid I’m afraid. Alternatively you might perhaps be able to get a referral to Advocate (formerly the bar pro bono unit). Some local courts and advice centres offer free advice or clinics on family law matters.
Lucy
Shouting is verbal abuse and should not be considered normal or healthy behaviour. It should also never be done in the presence of children. Also swearing, name calling, disparaging language etc. Are All abuse. “An argument” could be conducted as a debate at reasonable volume, with composure and no aggression, usually referred to as a discussion where party’s can’t agree but this does not impact the child. Emotional damage is abuse.
I have just attended first hearing and awaiting court letter with further instructions, my ex has put false allegations on me however I was the one who was victim and decided to leave the house and ever since she didn’t allow myself to see kids and infact put her own conditions every time I tried to see kids, I don’t want to spend too much money is it possible I can contact her solicitor or Barister and ask for mutual agreement without proceeding any further ? I do not have solicitor.
“Everyone has arguments” – No they don’t
This seems to happen too often, I’m here now. It feels like there is no support, I feel very let down, as well as all the other emotions from the abuse
It should be made a criminal offence to falsely accuse another parent of domestic abuse, especially if it is found on a balance of probability in a fact finding hearing to be just that. These false allegations should be in themselves be treated as domestic abuse of the other parent.
The obvious difficulty with a proposal to criminalise the making of false allegations is that it might well deter genuine victims of abuse from coming forward, thus exposing both the victim and their children to further risk. That said, although as far as we are aware its very rare, it is possible for evidence given in family court to result in a perjury charge where it can be proved to be false. And even leaving aside a potential criminal prosecution a finding that allegations have been falsely made may well have significant consequences in terms of the decisions the court may then make about the care and contact arrangements of the child.
That’s (your first sentence) exactly what I was thinking after the last post
So if someone deliberately misleads the court in a child access case, knowing that they have already been found not to be truthful in a criminal court, and no evidence either medical or police, just to prevent a parent from child contact would Caffcass take that as a serious cause for concern and rule in favor of the other parent