
Melissa Vaughan is a member of Oriel Chambers Family Team.
Here Melissa provides a brief outline on the new domestic abuse policy published by Cafcass on 9th October 2024.
If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at clerks@orielchambers.co.uk
On 9th October 2024, Cafcass published a new domestic abuse policy setting out requirements that the family court advisor’s (FCA) and children’s guardian must follow in cases involving children and adult victims of domestic abuse. The policy comes as a direct response to the Harm Panel’s report published in June 2020. One of the concerns raised with the evidence gathered for the purposes of the report was a ‘pro-contact culture’ in cases where domestic abuse is present.
The policy outlines several ‘starting points’ to be followed by the FCA’s and the children’s guardian. Any departure must be supported by a ‘compelling rationale, discussed with a manager and recorded contemporaneously in child’s case record’.
The following starting points apply:
a. When a parent is being investigated by the police for a sexual offence, has a conviction for a sexual offence and/or has served a prison sentence for a sexual offence, the starting point is to provide a recommendation for a child NOT to spend time with that parent due to the significant risks that exist.
b. In considering recommendations for family time when there has been a report of a sexual offence, the following points apply:
- If there is a report of sexual offending, the starting point is to consider the risk of harm to the child as significant and the needs for a finding of fact hearing and the suspension of any pre-existing direct spending time arrangements until the court makes findings.
- If a finding of fact hearing has been listed, there should be an evidence-based recommendation for no direct time with the accused parenting until the court considers the evidence and makes any findings.
- If there is a police investigation of a sexual offence or a charging decision is pending, there must be a recommendation for no direct time until the police have concluded their investigation, or the criminal process has run its course. If the outcome of a police investigation is no further action, paragraph (i) applies.
- If there is a conviction for a sexual offence, the risk of harm to a child of contact with the adult is significant and there should be a recommendation of no time with that parent.
c) Practitioners must not support or recommend any contact (direct or indirect) or spending time arrangements where the resident parent and the child are living in a refuge having disclosed domestic abuse by the other parent. In cases where spending time arrangements have not been suspended, a referral should be made to children’s social care together with a S.16A risk assessment which should consider and recommend the suspension of interim arrangements whilst a full assessment is completed.
d) Practitioners must not recommend that a child spend time with a parent without clear evidence that the perpetrator:
- recognises the harm their behaviour has caused their victims
- has taken responsibility for the harm they have caused
- has taken action to sustain the change in their attitude and have stopped their harmful behaviour. This needs to be demonstrated over a period of time.
- These changes have resulted in an assessment of that the risk of them perpetrating that behaviour has been removed to the point of enabling a recommendation that family time is now in the child’s best interest.
Furthermore, language used by practitioners within their reports have also been addressed within the new policy:
- Practitioners must not use language such as ‘claims’ or ‘alleges’.
- Practitioners should not describe someone as ‘anxious’ or ‘suffering from mental ill health’ unless clinically diagnosed without considering and understanding that a victim’s feelings of anxiety and fear may be a trauma response to their experience of abuse.
- Practitioners must provide a clear, unequivocal and compelling rationale in their report to the court for discounting domestic abuse as a risk to the child when recommending ‘time with’ or ‘live with’ arrangements when such abuse and harm has been shared with the practitioner by the child or one or both parents.
The full policy can be accessed here:
http://www.cafcass.gov.uk/sites/default/files/2024-10/Domestic%20Abuse%20Practice%20Policy.pdf
This policy will inevitably impact the presumption set out in s.1(2A) of the Children Act 1989 and will no doubt impact the court’s own assessment under Practice Direction 12J when considering the need for a fact-finding hearing.