March 2012
Cafcass’ response to the cross-government definition of domestic violence consultation
Cafcass (the Children and Family Court Advisory and Support Service.) is a non-departmental public
body accountable to the Department for Education, and we work within the framework established
by primary legislation and court rules and the remit set by the Secretary of State for Education.
Our role within the family courts is to safeguard and promote the welfare of children, provide advice
to the court, make provision for children to be represented, and provide information and support to
children and their families. We principally work with children and families where court applications
have been made about future arrangements for children, following parental separation, or where
applications have been made by local authorities, in relation to concerns that children are suffering
significant harm. In completing work for the court we have a duty, under section 16A Children Act
1989, where there is cause to suspect that the child concerned is at risk of harm, to provide an
assessment to the court of the risk of that harm being suffered by the child. This could include the
risk posed to a child, by witnessing or directly experiencing domestic violence.
Option 1: Definition to remain the same
We support the current government definition of domestic violence, as set out in Working Together
to Safeguard Children, which is also reflected in our practice policies and guidance. However, in
addition to the government definition, we also provide staff with the following information about
domestic violence:
‘This behaviour can be overt, as in threatened or attempted assault, or actual harassment. It can also
be subtle, such as the imposition of social isolation on a partner and/or his/her children. It can thus
take the form of emotional, financial, physical or sexual abuse, or any combination of these. The
Adoption and Children Act 2002 has extended the definition of harm to include harm suffered from
seeing or hearing the ill-treatment of others, such as harm caused by witnessing domestic violence’.
Notwithstanding any extension to include coercive behaviour, we think that it would be helpful for
the cross-government definition to remain relatively broad, as this enables agencies to add
additional information, as we have done, where it is relevant to their function to do so.
Do you think the current definition is properly applied by government departments, local
government, and frontline practitioners?
We have no cause to believe that the current definition is applied incorrectly, either by our staff or
within the wider family justice system. However, it is important to make clear that our experience
does not extend to the use of the definition within the criminal context. Our duty and experience
falls within determining whether behaviour that fits the Working Together definition, and the
further information provided by Cafcass as set out above, is relevant to the way in which we exercise
our functions in respect of children whose cases are before the family courts. Cafcass practitioners
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March 2012
Cafcass’ response to the cross-government definition of domestic violence consultation
receive training in identifying and assessing domestic violence, and the potential impact that
domestic violence can have on a child’s welfare, in the context of the definition of harm set out in
s31(9) Children Act 1989 (“ill-treatment or the impairment of health or development”), as amended
by s120 Adoption and Children Act 2002, which added at the end the words “including, for example,
impairment suffered from seeing or hearing the ill-treatment of another”.
Within family proceedings, a number of factors must be taken into consideration when determining
the outcome of contact or residence applications in cases where domestic violence has occurred, as
set out in FPR Practice Direction 12J: Residence and Contact Orders: Domestic Violence and Harm
(2009). The Practice Direction sets out that, in considering the conduct of both parents towards each
other and towards the child, the court should have particular regard to ‘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’, and whether a perpetrator of domestic violence ‘has the capacity to
change and to behave appropriately’. We consider that the current definition is correctly applied,
and results in further consideration to the issues at hand by professionals and the court within
family proceedings.
Do you think the current definition is understood by victims, perpetrators, and frontline
practitioners?
Cafcass has a training module titled ‘Impact of domestic violence on children’, which covers the ways
in which children can experience domestic violence – both directly and indirectly – and the impact
this can have on their welfare. The aim of this session is for practitioners to gain an understanding of
how children can be affected by violence within the family, even if they are not present or are very
young. This is of particular relevance to Cafcass practitioners, as we work with a large number of
children under 5 years old, and the majority of our young service users are under 10. We therefore
consider that our practitioners understand the current definition, and its application to the work
undertaken by Cafcass.
While any form of domestic violence is, of course, unacceptable, part of Cafcass’ role in assessing
risk and providing information to the court may involve considering whether behaviour, which
meets the definition of domestic violence, is an isolated incident (such as a violent, one-off reaction
to a separation) to that which is part of continued pattern of abusive behaviour. In this sense, the
current definition is expanded upon by Cafcass, in assisting the family courts in their task of
determining the outcomes of the applications that have been made.
Identifying patterns of controlling behaviour is particularly relevant to Cafcass’ work as the initiation
of family court proceedings can be seen, in some cases, as an attempt – by the perpetrator – to
maintain control over the victim, rather than the application being made in the best interests of the
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Cafcass’ response to the cross-government definition of domestic violence consultation
child (Michael P. Johnson, 2008). The family court is instructed to identify any such behaviour, as set
out in the extract above, drawn from Family Procedure Rules Practice Direction 12J, 27(b). Such
behaviour patterns may not be recognised as domestic violence, particularly by the perpetrator.
Option 2: Definition to include coercive control
As set out earlier, we consider that our practitioners, and the family court, fully acknowledge that
domestic violence is often underpinned by a pattern of coercive control that, for the purposes of our
work, may have a greater relevance for the courts’ decision-making than a one-off incident (whilst
recognising that a single incident may render contact or residence as entirely unsuitable). Extending
the definition would be consistent with the additional definition we provide to our staff, which takes
into account coercive control and the impact this may have on a child’s welfare.
Do you think extending the definition would be helpful to victims as well as frontline
practitioners?
We consider helpful in this context to be any measure which would improve reporting rates and
access to support services. Cafcass carried out research in 2011 into the levels of disclosure of
domestic violence among our service users, in applications to the court and during our screening
work. In the sample of 100 section 8 Children Act 1989 family court cases (primarily involving
contact and residence applications), domestic violence was alleged in 34 of the cases, including in
cases where the applicant had not disclosed ‘harm’ in the application to the court, but did disclose
domestic violence to the Cafcass practitioner. As identified in the consultation document (p. 9), it is
known that the first incident reported to the police, or other agencies, is rarely the first incident to
have occurred. Should the definition be extended, and this be accompanied by a campaign to raise
awareness, this change may increase reporting rates as victims are made aware that the behaviour
they are experiencing is recognised across all agencies as being domestic violence.
In considering the impact such an extension would have to victims in the context of family
proceedings, we note that this would only be ‘helpful’ in terms of victims accessing support (Legal
Aid) under the current wording of the Legal Aid, Sentencing and Punishment of Offenders Bill for
such proceedings, if the extension of the definition resulted in increased reporting and
corresponding action (i.e. non-molestation orders or convictions).
From Cafcass’ experience of complaints handling, we have seen instances of complaints made
because a recommendation has been made for a party to attend a Domestic Violence Perpetrator
Programme (DVPP), as a result of coercive behaviour that has been drawn to attention of the court
by a Cafcass practitioner, but the party does not consider that such behaviour makes them a
perpetrator of domestic violence. Extending the definition, teamed with an awareness raising
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Cafcass’ response to the cross-government definition of domestic violence consultation
campaign, may mean those who are exhibiting such behaviour will better aware both that this is
unacceptable and more receptive to programmes which can help challenge their behaviour.
Options 3 and 4
Should the government’s definition of domestic violence be extended to include all those under 18
(option 4)?
There is a wide body of evidence around the detrimental impact witnessing domestic violence can
have on a child’s welfare. A recent report by Ofsted, Learning lessons from serious case reviews
2009-2010, looked at serious case reviews regarding 194 children; domestic violence was a factor in
the families of 61 of these children. Ofsted has found that, in some cases, agencies do not
understand, or fully assess, the impact of domestic violence on children. Further, it has been found
that 40 per cent of children from families where domestic violence is an issue exhibit clinically
significant emotional and behavioural problems (Harold and Howarth, 2004).
We agree that age-appropriate programmes (such as the Blackpool case study, cited in the
consultation document) are needed to cover those 16 and 17 year olds who are engaging in abusive
behaviour. However, in the absence of evidence to show that older young people are missing out on
services relevant to issues of domestic violence due to their age, Cafcass cannot see any benefit in
extending the definition from the information set out in the paper. To do so may encourage the use
of criminal measures which at this stage of life do not seem as appropriate or as likely to change
behaviour as more therapeutically-oriented age-appropriate interventions.
Anthony Douglas
Chief Executive
30th March 2012
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