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Domestic Violence and Care Proceedings: Re-victimising the Victim?

Rebekah Wilson, barrister, of Garden Court Chambers examines the plight of victims of domestic violence who find themselves caught up in care proceedings.

Rebekah Wilson, barrister, Garden Court Chambers

Rebekah Wilson, barrister, Garden Court Chambers

Earlier this year Olga Borzova reported to the Parliamentary Assembly of the Council Of Europe on 'Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States'. Within that document she made some very troubling observations of care proceedings in the United Kingdom. In the run up to Christmas it seems a good time to remind ourselves of them.  In summary she noted that many mothers now find themselves trapped in abusive relationships, afraid to signal domestic violence in case they should lose their children as a consequence.   Every practitioner in public law children proceedings will be all too familiar with how frequently domestic violence is a significant issue in a case.  International, as well as national, law and guidance remind practitioners of the on-going demand for particular caution when dealing with these cases to ensure that care proceedings do not serve to re-victimise victims of domestic violence or trap women in abusive relationships.

I should mention here that considering these issues seeks in no way at all to undermine the very harmful nature that domestic violence can have on children.  I cannot improve on the observations of Dr Sturge and Dr Glaser in Re L (A Child) (Contact: Domestic Violence)(CA) [2000] 2 FLR 334:

"Domestic violence involves a very serious and significant failure in parenting.." (page 271)

Domestic violence: the background
The definition of domestic violence employed across government is necessarily wide:

'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 the following types of abuse:

Controlling behaviour is: a range 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 behavior.'

Studies vary but according to the national domestic violence hotline it takes a victim on average seven attempts to leave an abusive relationship.   Austerity measures have had an impact on support for victims of domestic violence with refuges and shelters closing (see The Guardian).   Some victims simply have nowhere to go. The Council Of Europe report also identified resource problems for social services:

"The pay structure in England also does not encourage social workers to stay on the job, so that many social services are understaffed or staffed with short-term agency staff to a significant degree. This has an effect on the system: It appears that threshold levels on which children social workers deem to be at risk of significant harm can also vary based on workload and staff shortages." (Para 59)

There will be a variation in the level of domestic violence which acts as a trigger to care proceedings and of course in the support a social worker is able to offer to any alleged victim within those proceedings.

Against this backdrop is the mandatory 26 week rule in care proceedings (s32(5) of the Children Act 1989, amended by the Children and Families Act 2014).  It is easy to see how the pressure of concluding proceedings in these circumstances could lead to a poor outcome for both the children and parents who are victims of domestic violence.

An international perspective
The UN Committee on the Rights of the Child "General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration" gives some useful reminders on what 'best interests' means in practical terms:

"60. Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires 'that a child shall not be separated from his or her parents against their will, except when [...] such separation is necessary for the best interests of the child'. Furthermore, the child who is separated from one or both parents is entitled 'to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests' (art. 9, para. 3). ...

61. Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child. Before resorting to separation, the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family's capacity to take care of the child, unless separation is necessary to protect the child. Economic reasons cannot be a justification for separating a child from his or her parents."

With cuts in resources available to victims of domestic violence the issue of the state providing support is key in many cases.  It is worth remembering here the impact of cuts to legal aid.  According to Rights of Women, 'at least two in every five victims of domestic violence can't get access to legal aid to go to court to secure the protection they need'.   For victims of domestic violence who have not yet reached the point of finding themselves in care proceedings, the situation is very bleak indeed. The support to keep a child with their family must come sooner.

The national level and some fundamental points
Some of the leading authorities in England and Wales which encompass these international principles above have concerned cases involving 'domestic violence'. 

In the matter of A (A Child) [2015] EWFC 11 the President of the Family Division Sir James Munby set out some fundamental principles essential to any case involving allegations of 'domestic violence':

"The first is that the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove." (para 9)

"The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold. .. The linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm.". (para 12)

These two fundamental points are of course crucial to any case where domestic violence has been alleged.  The local authority must establish the facts of the domestic violence and then link them to the threshold.  Careful examination beyond the very wide all encompassing words, 'domestic violence' is of course essential.

The President's third fundamental point is perhaps the most helpful to any victim of domestic violence:

"The third fundamentally important point is even more crucial.  It is vital to always bear in mind in these cases, and too often they are overlooked, the wise and powerful words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, para 50:

"society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent."

The President went on:

"It follows that I also agree with His Honour Judge Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam) , a judgment that attracted some attention even whilst I was hearing this case:

"I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink.  But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any of the domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place.  The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering."

In J (A Child) [2015] EWCA Civ 222 the Court of Appeal considered a case where "domestic abuse" had formed a part of the local authority's threshold in proceedings where a 16 year old had had her baby removed from her care. In that case Lord Justice McFarlane readily endorsed the words of the President in his Judgment in Re A.  He found that "if proper and  focused scrutiny had been given to the underlying facts of this case they may have been insufficient to establish that J 'is likely to suffer significant harm' of one category or another in the care of his parents." (Para 47). 

Lord Justice Aikens agreed with the judgment of McFarlane LJ:

"This case exhibited many of the shortcomings that were highlighted in the judgment of Sir James Munby P in Re A (A Child) [2015] EWFC 11.   I wish to endorse and underline all the points of principle made and the salutary warnings given by the President in that case.  It is a judgment that needs to be read, marked and inwardly digested by all advocates, judges and appellate judges dealing with care cases and particularly adoption cases." ( para 55)

In Re S (A Child) [2014] EWCC B44 (Fam) the President gave guidance on where the 26 week rule can be extended. 

In Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), para 40, Pauffley J expressed the point in words which I cannot improve upon and which I wholeheartedly endorse:

"Justice must never be sacrificed upon the altar of speed." (para 29)

Domestic violence was not one of the specific examples cited which might be the cause of an extension (para 33).  Nevertheless in the case of Re S-W (Children) (Care-Proceedings: Case Management Hearing) Practice Note [2015] EWCA Civ 27 a case also involving domestic violence where final care orders had been made at a Case Management Hearing the President observed:

"Every care judge will be conscious that, whilst it is in a child's best interests for their future to be determined without delay, it is equally in their best interests that the management of the case which determines their future should be fair and compliant with article 6 of the Convention.  The danger lies when, as unfortunately happened here, vigorous and robust case management tips over into an unfair summary disposal of a case." (para 29)

No one should be fearful of reporting domestic violence because of the risk of losing their children.  But sadly the reality must be as observed to the Parliamentary Assembly of the Council of Europe:

"There is a particular problem which I was made aware of in the United Kingdom, but which may pose a problem in several other countries, too: many mothers who are victims of domestic violence themselves seem to be re-victimised by the child protection system as the child witnessing such violence (or threats of it) is considered to be subject to emotional abuse and thus significant harm. This means that, if the mother has nowhere to turn to, her child can be taken away from her. This is a problem which should not be underestimated, as the impact of the crisis and the effect of austerity cuts on social services means that more and more mothers are now trapped in abusive relationships (with shelters closing) and afraid to signal domestic violence lest their children be taken away from them". (Para 44)

Practitioners who have 'digested' Re A and all the guidance above will be well placed to prevent further harm to victims of domestic violence, adult or child.  Well placed but not always able to remedy the potential damage of the cuts by the state to provision of resources to victims of domestic violence.