The double bind in Practice Direction 12J – Residence and Contact Orders: Domestic Violence and Harm

Much of the work I have done around family separation has been to unpick the fixed ideas and stereotypes that surround families as they reorganise. It can often be both an illuminating and frustrating process.

This is a small example, tucked away in the Ministry of Justice Practice Direction, PD 12J – Residence and Contact Orders: Domestic Violence and Harm. It reads:

Factors to be taken into account when determining whether to make residence or contact orders in all cases where domestic violence has occurred

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In every case where a finding of domestic violence is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider –

(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;

(b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;

(c) the likely behaviour during contact of the parent seeking contact and its effect on the child;

(d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;

(e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately.

On the face of it, this may appear to be sensible, practical advice to the courts. But, read a little more closely, it reveals an assumption that it will always be ‘the parent seeking contact’ who will have been the ‘perpetrator’ of any abuse or violence and always be ‘the parent with whom the child is living’ that will be the victim.

Given the complex nature of family violence, not least the high levels of mutual violence, I find it difficult to understand how this serves justice or children. And there is another little barb contained in this Direction.

Point d) requires the court to assess ‘the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child’. The way that this works, in practice, is that a parent accused of violence finds themselves in a double bind.

Failure by the accused parent to accept the allegations of violence will frequently lead to a Cafcass report that concludes that the ‘perpetrator’ is either unwilling or unable to ‘appreciate the effect of past violence and the potential for future violence on the other parent and the child’. A willingness to ‘appreciate the effect of past violence’ is an admission of guilt. Here’s an example of how it plays itself out.*

Following allegations by a mother that the father had been violent towards her, the court found that whilst the father had been violent towards the mother, the mother had also been violent towards the father; the violence had been mutual in nature. As a result of this, a judgement was made which stated that there was no reason why the father should not be having unsupervised contact with his children and that it should start immediately.

The Cafcass officer referred the father to an Integrated Domestic Abuse Programme (IDAP) course and insisted that he attend. The father attended but refused to agree that he was ‘the perpetrator’, providing as evidence the finding of fact that this had been mutual violence.

The father showed the IDAP course leader the judgement which stated that he should be having unsupervised contact with his children. He was told that because he would not accept that he was ‘the perpetrator’ he was considered to be too dangerous to have unsupervised contact.The IDAP course leader wrote a report to say that he was too dangerous to have unsupervised contact.

The case went back to court. The course leader refused to be cross examined. Another Cafcass officer was assigned who read only the previous Cafcass officer’s report and the IDAP report and recommended no contact at all. The father no longer sees his children. He now writes to them once a week. They do no reply.

It seems to me that, until we get a grip on issues such as these, we will continue to see children lose a parent based not on the best interests of the child but on the assumptions and bias that are present in the court processes and the services that sit around them.

* This case has been redacted to ensure anonymity
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