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Family law expert, Sophie Key considers the recent judgement in Re H-N and Others and its impact on disputes regarding the arrangements for children where domestic abuse is alleged.
The long-awaited judgement in the four Court of Appeal cases Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 was handed down on 30th March 2021. Family lawyers have been awaiting this significant ruling but what does it mean for parents who turn to the Courts for help to resolve the arrangements for their children?
For many cases, it will have no bearing as it relates only to cases which involve allegations of domestic abuse. However, it is believed that over 40% of private law children cases (involving a dispute between, generally, a child/children’s parents) now involve allegations of domestic abuse. In 2019/2020 that equates to over 29,000 of the cases before the Family Court which tells us how significant the issue is.
There is a presumption in English law that the involvement of a parent in their child’s life is in their best interests and, so, a child should have contact with both parents unless there are exceptional circumstances. In some cases, a parent may argue that, due to domestic abuse committed against them (or the child), contact should not take place or should be supervised to ensure the child’s welfare.
The Family Court has for some time taken very seriously the issue of domestic abuse in assessing the arrangements for children. In 2008, statutory guidance (Practice Direction 12J) was introduced which set out what the Court is required to do when domestic abuse is alleged or admitted. This includes identifying at an early stage whether domestic abuse is raised as an issue and to consider the extent it is relevant to the arrangements for the child(ren). The guidance provides for disputed allegations to be determined by the Court through a Fact Finding Hearing (at which the parties and any witnesses give evidence for the Court to determine whether the allegations are proved). Where domestic abuse is admitted or proved the Court should make an order for contact between the perpetrator of the domestic abuse and the child only if it is satisfied that the child, and the victim of the domestic abuse, is safe. To do this, the Court may require risk assessments, psychological assessments and the perpetrator to attend a Domestic Abuse Perpetrator Programme.
The recent judgement in Re H-N addressed 4 main issues:
Whilst the recent judgement does not provide us with clarity as to how the Court wishes us to present the allegations for determination, it makes it very clear that domestic abuse, specifically coercive and controlling behaviour, remains a clear focus of the Family Court in determining whether a child should spend time with both parents and ensuring the safety of all involved.
Should you require any advice in relation to the arrangements for your children or any child-related issues then please contact Sophie Key at [javascript protected email address] or on 01603 580011 / 07929 840901.
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To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.