Tuesday, November 22, 2011

New report on children and domestic violence

Refuge and the NSPCC have today published a report, Meeting the needs of children living with domestic violence in London, which details the findings of research "examining how children and young people affected by domestic violence are recognised and responded to by professionals in a range of services". The research was conducted between October 2008 and March 2011 throughout the 33 London local authorities, and included interviews with 74 professionals, 37 mothers and 23 children and young people who had lived with domestic violence.

I have not read all of the report's 258 pages, but the Executive Summary sets out the three main findings of the research:

1. There are significant gaps in services addressing the needs of children and young people living with domestic violence in London.

2. Some of the most vulnerable children and young people are the least likely to be able to access help when they need it. There should be a stronger emphasis on equality of access to help for children and young people, regardless of their ethnicity, age, gender, disability or parental immigration status.

3. Children are rarely given opportunities to express their own views, and some professionals are reluctant to talk directly with children and young people and to involve them in decisions which affect them.

Obviously, the third of these findings is of direct relevance to the legal process involved in applications for residence and contact orders, particularly the report's 'key recommendation' addressing this finding: that children should have the right to say 'no' to contact. As far as I can see, the report gives no detail as to how this would work, for example dealing with the obvious questions of the age and understanding of the child, and 'coaching' by the other parent. The courts, of course, should already consider the wishes of the child when going through the welfare checklist (although they do usually rely upon other professionals to ascertain those wishes), but those wishes are not of course binding upon the court.

Whatever the issues involved, I'm not sure of the likelihood of such a radical change happening. More likely, perhaps, is a change of emphasis. The report states at paragraph 4.1:
"Courts and family lawyers should be more aware of the research evidence on the risks to children from abusive contact and should be more willing to stop contact from happening in circumstances where a child’s safety cannot be guaranteed." 
I am not, however, certain that there is much room even for such a change of emphasis. There is, of course, already considerable guidance for the courts when dealing with children applications involving domestic violence, see Practice Direction 12J and the leading case of Re L, Re V, Re M & Re H (Contact: Domestic Violence) [2000] EWCA Civ 194. In particular, paragraphs 26 and 27 of the Practice Direction set out the factors to be taken into account when determining whether to make residence or contact orders in all cases where domestic violence has occurred. Paragraph 26 states that the court:
"...should only make an order for contact if it can be 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."
Clearly, this cannot be altered to read that the child's safety must be guaranteed before the court makes an order - no one can guarantee any such thing. Possibly, the wording could be strengthened in some way, although whether that would satisfy the report's authors I don't know.

Anyhow, those are just my initial observations. The full report can be read here.

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