Domestic Violence:
Contact Disputes and Fact Finding Hearings
Introduction by Khatun Sapnara
‘The Law in relation to Fact-Finding Hearings’
Jeremy A Brown, Coram Chambers
‘Picking up the pieces: domestic violence and child contact’
Presented by Ruth Tweedale, Rights of Women
‘Practical guidance on dealing with allegations made within contact
disputes’
Lucinda Wicks, Coram Chambers
‘Domestic Violence, Child Contact, Post-Separation Violence
Experiences of South Asian and African-Caribbean Women and Children’
Presented by Khatun Sapnara, Coram Chambers
The law in relation to Fact-Finding
Hearings
Jeremy A. Brown
February 2013
1.
Introduction
The adversarial nature of fact-finding hearings and their significance
1.1. The fact-finding hearing (‘FFH’) is commonly considered by lay clients as the
most stressful stage in private children law proceedings. Where domestic
violence (‘DV’) has been pleaded by an alleged victim, it is often the case that –in
considering whether contact poses a risk to the child or the victim- past ordeals
have to be painfully dredged to the surface and put under scrutiny. For the
alleged victim, this inevitably will involve reliving horrific events in their
relationship with the alleged perpetrator and then having their account
challenged in cross examination.
1.2. On the other hand, an alleged perpetrator will often feel frustrated by
‘exaggerated’ or ‘made up claims’ that only exist to prevent them from having a
meaningful relationship with their child/ren; and, furthermore, a feeling that
their character is being unfairly prejudiced should they emotively express their
frustrations in court.
1.3. Not only does a lay client have to face up to the- often horrifying- reality of
giving oral evidence, they also have to digest the difficult advice that FFHs are
rarely simple affairs and that the judge’s decision at the end of the hearing will
inevitably colour how the rest of the case proceeds (however, see the discussion
below at 3). Indeed, once the decision has been made that a FFH is necessary
(whether as part of a split hearing or a ‘full’ final hearing, see below) the selfconfessed inquisitorial nature of private children law proceedings takes on a
distinctly adversarial flavour.1 Accordingly, so much is at stake for each of the
parties, as the judge, the finder of fact, will have to decide upon two competing
positions with little or no room to compromise. Moreover, the adversarial
nature of FFHs brings with it a heightened sense of litigation risk, especially as
any decision is crystallised in the form of a judgment that will often be heavily
relied upon by any experts involved with the case. Often, with two irreconcilable
positions, a finding either way will lead to the aggrieved lay client feeling as if
they were not believed and that whatever flows from the judgment thereafter is
unjust and not in the child/ren’s best interests.
1.4. Perhaps it is ironic that the stress of giving oral evidence is very seldom
experienced by solicitors and barristers. However, given the adversarial nature
of FFHs, it is absolutely essential that lay clients are given the right advice to
assist them in evaluating whether they wish to pursue a FFH or resist such a
direction being made, and, to ensure that a FFH (or the potentiality of a FFH) is
approached in the best way possible with diligent attention to the evidence.
1.5. It is important that this advice is given to lay clients at an early stage and
reiterated as new evidence comes in prior to any direction for a FFH being
made. Unlike under the Civil Procedure Rules, which place an emphasis on
investigation and disclosure prior to issuing a claim, evidence in the family law
jurisdiction will often be adduced in a piecemeal fashion and in relation to the
live issues at the time. Accordingly, it is often difficult for lay clients, especially
in a jurisdiction which relies heavily on documentary evidence, to comprehend
and weigh up all the issues, if they are being advised at court for the first time as
to whether they should support or oppose the listing of a FFH.
1
Indeed, it appears that despite a push towards greater ‘inquisitoriality’ this will continue to be the case, and
will arguably be reinforced, following the implementation of reforms advocated by Ryder J as part of the
Family Justice Modernisation Programme. Ryder J, speaking on 26 June 2012 in relation to the creation of a
Unified Family Court and the Family Justice Modernisation Programme, recently stated: “In addition we hope
to publish a statement of inquisitorial principle. We aim to demonstrate and assist everyone to understand that
save in relation to adversarial fact finding sufficient to make the ultimate decision before the court, the judge’s
function is inquisitorial.” (With thanks to David Boyd for providing the source, which can be found at
http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/family_newsletter6.pdf).
1.6. Accordingly, a flexible working relationship between counsel and solicitor is
likely to be of great assistance in evaluating the evidence and issues as they
develop from the First Hearing Dispute Resolution Appointment onwards.
What this section of the seminar will cover
1.7. This section of the seminar considers the law in relation to FFHs where DV is a
central element in respect of an application for contact or residence. It aims to
assist legal advisers in formulating their advice to lay clients as to how an
application for contact/residence might progress. In doing so, two key issues are
addressed in relation to FFHs and private children law disputes:
1.7.1. When is a FFH appropriate?
1.7.2. The law in respect of facts found or not found.
Defining a FFH / Split hearings
1.8. It may seem a bit redundant to define what is meant by a FFH, however to
ensure we are all singing from the same hymn sheet I will start by defining the
terminology. The President’s Guidance in Relation to Split Hearings May
2010 [2010] 2 FLR 1897 (‘PG’) defines a ‘fact-finding hearing’ as the first limb
of a split hearing; a ‘split hearing’ being:
“[A] hearing divided into two parts, during the first of which the court
makes findings of fact on issues identified by the parties or the court, and
during the second part of which the court, based on the findings which it has
made decides the case.”
1.9. Where the PG refers to a FFH it is really referring to the preliminary limb of a
split final hearing. In this seminar note, a FFH is a hearing is defined more
generally to include any hearing where a judge is asked to make findings of fact
in respect of the alleged past behaviour of a party, whether this fact-finding
function comprises the first limb of a split hearing or part of a comprehensive
(or more properly referred to as a ‘substantive’) final hearing.
1.10.
In directing how a case should progress, consideration should be given as
to whether findings of fact will assist the judge (see below at 2) and, where a
split hearing is not directed, it should be spelt out on the face of an order so it is
clear whether the Court intends to try matters of fact at a final hearing or
proceed on the basis of welfare considerations only. It is vital that the legal
representatives of both parties to clarify the issues for a final hearing and
narrow them where possible. If such an approach is followed, then preparation
for the final hearing can be much more focussed.
1.11.
In respect of splitting the hearings, the PG states that in the President’s
judgment it will be “a rare case in which a separate fact-finding hearing is
necessary” (at paragraph [7]). Importantly, allegations of DV are not a reason
in themselves to ‘split’ a hearing (see paragraph [8]). Strangely, despite
numerous references, the PG does not give any guidance in respect of the
appropriate circumstances to ‘split’ a hearing in a private children law dispute.
Instead, I would suggest that an analogy can be drawn from the guidance in
respect of public children law cases. The rationale for split hearings in care
proceedings is drawn from Bracewell J’s comments in Re S (Care Proceedings:
Split Hearing) [1996] 2 FLR 773, paraphrased in the PG at paragraph [11]:
“[where] consideration could usually be given to whether or not there were
questions of fact within a case which needed to be determined at an early
stage. The advantages of doing so, she said were that early resolution of
such facts ‘would enable the substantive hearing to proceed more speedily/
and would enable the court to ‘focus on the child’s welfare with greater
clarity’.
1.12.
For example, the parallel that can be drawn here is to identify, if
necessary, whether any intervention would benefit the parties, particularly the
alleged perpetrator (we are all familiar with the Domestic Violence Intervention
Project, which will take over 32 weeks to complete from the date the referral is
made).2 Dealing with such an issue early on would clearly be of benefit in a case
2
Practitioners will note that the Legal Services Commission has for some time refused to make funding
available for a party to attend on a Domestic Violence Perpetrator Programme (‘DVPP’); however, discretionary
funding may be provided through CAFCASS (on behalf of the Department for Education) for the attendance at
DVIP where attendance has been ordered as part of a contact activity direction under section 11A Children Act
1989 and the party has successfully cleared an initial risk assessment (the party will not incur costs for the risk
assessment if ordered as a contact activity direction). Funding may also be available through a number of local
authorities. With the changes to public funding, due to come into force in April 2013, it may be that only the
of implacable hostility and would hopefully reduce the risk posed by any contact
ordered at a final welfare hearing or the form of interim contact.
alleged victim of violence is given public funding. It will be important to note section 22(4) Access to Justice
Act 1999, which states that a party’s public funding shall not affect “(b) the principles on which the discretion
of any court of tribunal is normally exercised.” This is crucial in relation to costs as it effectively prohibits a
publicly funded party from meeting the costs of the other party, e.g. in relation to hair strand tests or
assessments, save where the applicable costs principals allowing such a division would ordinarily apply
(Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751 per
Bodey J (in respect of care proceedings) at paragraph 25(g)).
2.
When is a FFH appropriate?
2.1. Findings of fact will not be necessary in every case where allegations of DV are
made by one party against the other; however, early (and ongoing)
consideration should be given to the relevance of the allegations and how these
allegations impact on the proper way to progress the case.3 Where DV is alleged,
the Practice Direction: Residence and Contact Orders: Domestic Violence and
Harm, 14 January 2009 [2009] 2 FLR 1400 (‘PD’) applies.4 DV is defined
widely in the PD and incorporates the definition of harm to a child as set out in
sections 31(9) and 105(1) Children Act 1989. Paragraph [3] of the PD states
as follows:
[3]
The court must, at all stages of the proceedings, consider whether
domestic violence is raised as an issue, either by the parties or otherwise,
and if so must:

Identify at the earliest opportunity the factual and welfare issues
involved;

Consider the nature of any allegation or admission of domestic
violence and the extent to which any domestic violence which is
admitted, or which may be proved, would be relevant in deciding
whether to make an order about residence or contact and, if so, in
what terms;

Give directions to enable the relevant factual and welfare issues to
be determined expeditiously and fairly.
2.2. At paragraphs [13] to [15], consideration is given to directions for a FFH.
Paragraphs [13] and [14] state as follows:
[13]
The court should determine as soon as possible whether it is
necessary to conduct a fact-finding hearing in relation to any disputed
3
The earlier view of Dame Butler-Sloss P, in the seminal case of Re L (Contact: Domestic Violence) [2000] 2
FLR 334, was that where allegations of DV arose in private children law disputes that might have an effect on
the outcome, then they must be adjudicated upon and found proved or not proved (at paragraph 341H).
4
This can be found in the Family Procedure Rules 2010 at PD12J.
allegation of domestic violence before it can proceed to consider any final
order(s) for residence or contact. Where the court determines that a finding
of fact hearing is not necessary, the order shall record the reasons for that
decision.
[14]
Where the court considers that a fact-finding hearing is necessary, it
must give directions to ensure that the matters in issue are determined
expeditiously and fairly and in particular it should consider:

Directing the parties to file written statements giving particulars of
the allegations made and of any response in such a way as to
identify clearly the issues for determination;

Whether material is required from third parties such as the police or
health services and may give directions accordingly;

Whether any other evidence is required to enable the court to make
findings of fact in relation to the allegations and give directions
accordingly.
(emphasis added)
2.3. The decision to direct a FFH is at the sole discretion of the judge and not
CAFCASS or the parties (Re C (Domestic Violence: Fact-Finding Hearing)
[2009] EWCA Civ 994, applying the above PD). It should only be directed
where the Court is of the view that the case cannot properly be decided without
such a hearing. In another case, Mostyn J puts it in the following terms,
“[18] Thus, a fact finding hearing should only be ordered if the court
considering setting one up can discern a real purpose for such a hearing. If
the inquiry would not be purposeful then one should not be ordered. The
finite resources of the court do not exist simply to provide a free-standing
medium for one party to obtain, for no reason other than vindication,
findings of matrimonial misconduct against the other.” (AA v NA (Appeal:
Fact-finding) [2010] EWHC 1282 (Fam), [2010] 2 FLR 1173)
So when is it necessary to conduct a FFH?
2.4. In some cases, the answer to that question will be obvious.
2.4.1. Where allegations are made, for example, that recent incidents of DV have
occurred, which, if proven, are likely to increase significantly the assessed
risk of contact to the child, then a FFH is more likely than not to be
appropriate. In such a circumstance, where, for example the alleged
perpetrator seeks unsupervised contact with the child which is refused by
the alleged victim, then the findings of DV are likely to impact on the Court’s
overall decision as to contact or may enable a party to undertake prior
intervention work before contact progresses.5 Of course, it should also be
remembered that an application for contact can be viewed as a means to
continue to harass the alleged victim by the alleged perpetrator.
2.4.2. If the allegations amounted to a smattering of heated arguments (possibly
leading to further alleged physical tussles) between the parents, and where,
for instance, one parent denigrated the other in front of the children,
consideration could be given to an alternative disposal of the case, e.g.
ordering a Separated Parenting Information Programme (‘SPIP’ or ‘PIP’)
and introducing contact steadily with a neutral and public handover venue.
Such a disposal does not minimise the seriousness of the allegations, but
practitioners for the alleged perpetrator should seek to ‘deal’ with the
allegations, perhaps in a recital, to stop them from re-surfacing in future
hearings. This approach may be more common in intractable contact
disputes where historical allegations are perhaps superseded by
subsequent successful contacts.
2.5. Re C is a “paradigmatic” case where the judge has done “precisely what he ought
to do and precisely what he is entitled to do” in refusing to order a FFH (per
Thorpe LJ at [17]):
5
Again, it is worth going back to basics here: As stated by Dame Butler-Sloss P in the seminal case of Re L,
taking into consideration the specially commissioned report by child psychiatrists Dr Sturge and Dr Glaser on
DV and contact, “[t]here is not, however, nor should there be, any presumption that, on proof of domestic
violence, the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle,
domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate
balancing exercise of discretion.”(at pages 341H to 342B).
“The judge quite rightly emphasised that this was a case in which prior
domestic violence had been established in the criminal justice system and
had been the subject of conviction and punishment. He further emphasised
that there had been a bind-over in the criminal justice system and that in
the family justice system there was a current undertaking by the father to
refrain from any violence or harassment. This was a case in which there had
been no allegation of fresh domestic violence of any significance since April
2006. This was a case where there had never been any suggestion of
violence to the child in question. This was a case in which contact had been
established at a contact centre and was progressing. This was a case in
which the father had successfully completed an anger management course.
Given all those circumstances, the judge had to weigh them against the plea
for investigation of 10 acts that predated the criminal convictions, and with
due regard to all the resource consequences.”
2.6. Re C touches on a particularly important consideration, especially if one is
acting for the alleged perpetrator, namely: what is the likely utility of a FFH if
interim contact has already been ordered and is progressing safely and
successfully? The PD requires the parties and the court to consider the
relevance of DV at all stages of proceedings; however, in evaluating the risk
contact may pose, the Court should also assess the possible containment of that
risk when ordering interim contact. Where interim contact is progressing
smoothly, and depending on the final order sought by the parties, the
proportionality of a FFH may legitimately be called into question.
Previous convictions
2.7. Where there are previous convictions against a party, these will stand as facts
that do not require proof (the conviction itself will). Therefore, a conviction for
assault is a fact proven whether or not the convicted party accepts the basis for
the conviction or not. As any criminal practitioner will tell you, the use of plea
bargaining is not uncommon in criminal proceedings and, in some
circumstances, a package of charges/counts may be presented to a defendant
which s/he may plead guilty to whether or not s/he agrees to the all the charges
against them. Importantly, these will all stand as facts proven. The same may be
said of police cautions as they can only be given where the recipient admits their
guilt.
2.8. However, in some circumstances, it may be necessary to learn more about what
the convictions were for and whether or not the defendant pleaded guilty (and,
if not, whether the matter progressed to trial). For example, following a guilty
plea of assault, there may be disagreement as to whether the assault took place
in front of a child or not, which will likely be a highly relevant consideration for
a judge in assessing risk. Evidence in respect of this could be obtained in the
following ways:
2.8.1. A pre-sentence report;
2.8.2. Sentencing remarks or notes from the trial;
2.8.3. A basis of plea document;
2.8.4. A note of judgment following a ‘Newton hearing.’6
2.8.5. In a schedule II letter or from other investigations made by CAFCASS/the
local authority by liaising with the relevant authorities.
Summary
2.9. The relevant PD directs judges to consider the relevance of DV at all stages of
proceedings and to establish the relevant factual and welfare issues. In
determining whether a FFH should be ordered, the Court should consider the
purpose of a FFH and the likely affect that DV, if proved or admitted, would have
on the order that the Court will make. Accordingly, the judge should consider
the nature and relative seriousness of any allegations and may be influenced by
other matters such as whether contact is currently taking place (and
progressing) or the extent allegations can be proved (e.g. whether they are
general or specific).
6
See R v Newton [1983] Crim LR 198. A ‘Newton hearing’ is held following a guilty plea in criminal
proceedings, when the prosecution’s version of events differs from the defendant’s and a decision by the judge
(not jury) is required to determine the factual basis of the defendant’s guilt.
3.
The law in respect of facts found or not found
3.1. Family law practitioners will be well aware of the rather intuitive approach of
the judiciary when approaching issues of residence and contact. In the context
of interim decisions, where no agreement can be reached, judges are sometimes
given the unenviable task of making decisions based on untested allegations and
are asked in these circumstances to assess the risk contact may pose to the child
and/or resident parent. Often, and especially in the early stages of proceedings,
as you will all have experienced, a judge will have to err on the side of caution.
Here, judges are often justified in relying on their observations of the
interactions between the parents at court and the mere assumption that the
difficulties/allegations between them, whether admitted, partially accepted or
contested, are indicative of potential risk.
3.2. However, the task of the judge at a FFH is much more definitive: here, the judge
is asked to decide whether an alleged incident is fact or not. For many reasons a
judge may not be able to conclude on the evidence that party making allegations
against the other has discharged the evidential standard of proof and so cannot
make the findings sought; but, does that mean that, having not found evidence of
prior DV, the Court must conclude that the related risks of contact are nonexistent? Judges, being human, must inevitably form an overall psychological
picture of the parties from the written evidence and their interactions and
behaviour at court. This ‘picture’ may suggest to the judge that notwithstanding
no findings being made, there may be a risk.
3.3. So the question one needs to ask is to what extent can a judge (representative or
expert) rely on the overall psychological picture of the parties that they have
inexorably formed?
Why is this important?
3.4. The simple fact is that the case law, going all the way up to the House of Lords,
directs trial judges that the standard of proof in family proceedings must return
the result that either an ‘allegation is true’ or an ‘allegation is false’ (Re B (Care
Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141, see the
speech of Lord Hoffman). On the face of it, this appears to explicitly reject the
‘intuitive’ approach familiar to all family practitioners. As Baroness Hale goes on
to state -in the context of care proceedings- at paragraph [54]:
“The threshold is there to protect both the children and their parents from
unjustified intervention in their lives. It would provide no protection at all if
it could be established on the basis of unsubstantiated suspicions: that is,
where a judge cannot say that there is no real possibility that abuse took
place, so concludes that there is a real possibility that it did.” (emphasis
added)
3.5. Despite Re B, judges, experts and practitioners involved in private children law
proceedings are nevertheless all too familiar with the situation on the ground
not necessarily reflecting the findings, e.g. the alleged victim who, despite a FFH
not finding her/his substantive allegations, is terrified of the alleged
perpetrator. This unavoidably creates a tension that advocates must address.7
Burden and standard of proof
3.6. It is worthwhile noting, and making clear reference to such in submissions, the
burden and standard of proof in private children law proceedings. As Re B
clearly sets out, the ordinary civil burden and standard of proof apply, without
gloss, to family proceedings.
3.7. Therefore, the burden of proof is on the alleging party to prove that a fact
happened and not for the alleged perpetrator to establish that the allegations
are not made out. The standard proof is, of course, ‘on the balance of
probabilities’.
The binary nature of FFHs
3.8. Continuing on from the above, Lord Hoffman sought to stress in Re B the binary
nature of the judge’s exercise in FFHs. At paragraph [2] he stated:
7
It is noteworthy here, Dame Butler-Sloss P’s summary of the Dr Sturge and Dr Glaser’s expert report, Contact
and Domestic Violence – the Experts’ Court Report [2000] Fam Law 615, presumably in support, that the
non-resident parent should prove why he can offer something of benefit to the child and to the child’s situation
(Re L at page 339B-C).
“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury
must decide whether or not it happened. There is no room for a finding that
it might have happened. The law operates a binary system in which the only
values are 0 and 1. The fact either happened or it did not. If the tribunal is
left in doubt, the doubt is resolved by a rule that one party or the other
carries the burden or proof. If the party who bears the burden of proof fails
to discharge it, a value of 0 is returned and the fact is treated as not having
happened. If he does discharge it, a value of 1 is returned and the fact is
treated as having happened.’
3.9. Mostyn J provides a more detailed mathematical explanation of this principle in
AA v NA at paragraphs [21] to [26]. Whether his detailed explanation is
intelligible to the majority of family lawyers is a question for another day (and a
cause for a headache), but the thrust his judgment on this issue is that using
Lord Hoffman’s binary system of fact-finding, an allegation which cannot be
substantiated on the balance of probabilities does not lead to a conclusion that a
fact is ‘not proved’ but that it did not happen - even if it was as likely as not to
have happened as not have happened (see also paragraph [100]). That is the
direct application of the civil standard of proof.
3.10.
The headache for most family judges and practitioners (as outlined
above) is that the value returned from a negative finding, that the alleged
incident did not happen, rather than being left ‘on the file’ as unproven, must
surely seldom reflect the reality of the situation that needs resolving. Without
wishing to get too academic, the amorphous criteria of judging a child’s best
interests is an undesirable burden in such circumstances and one can certainly
appreciate the weight upon a judge’s shoulders. Given the discretion afforded to
the family judiciary, and given the range of relevant considerations under
section 1(3) Children Act 1989, the job of the advocate is to creatively craft a
relevant narrative, whether DV is proven or not.
3.11.
Developing this skill will be invaluable, especially in the preparation of
witness statements / final submissions (primarily for victims) in respect of
welfare considerations at a final hearing. This is due to the evidential difficulties
posed by allegations of DV, which are plain to all practitioners. These difficulties
include:
3.11.1. DV is commonly not reported to the authorities, and, when it is, important
details are often purposefully left out by victims or allegations withdrawn
by victims;
3.11.2. Many incidents are without independent witnesses;
3.11.3. There is accordingly a lack of corroborative evidence;
3.11.4. Victims can be reluctant to go into sufficient detail in their evidence;
3.11.5. The thought or actuality of being cross examined, especially by a
perpetrator as
a self-represented party (litigant in person), can be
debilitating;
3.11.6. Cultural considerations may discourage a victim from pursuing certain
allegations;
3.11.7. Competing allegiances may mean that contradictory evidence is given;
3.11.8. The alleged abuse can be so frequent that remembering key dates and
incidents can be difficult and may impact upon credibility;
3.11.9. The threat of further violence may still be real;
Conclusion
3.12.
It will be tempting, if not –in many cases- the norm, for professionals
working with a family and the Court to proceed on the basis of their overall
psychological picture of the parties rather than the basis of allegations found by
a judge to be true or not true. The wide discretion afforded to judges in private
children law proceedings can often be difficult to challenge and judges have
shown particular ingenuity at times where the overall factual matrix
counterbalances a finding of DV either way. As it stands, reliance can and
probably should be placed on Re B if a FFH supports your client. In any event, it
will still often be necessary to really on one’s own inventiveness to develop a
meaningful, realistic, but ultimately persuasive, narrative under the welfare
checklist in final submissions to support a client’s position after a FFH.
“Picking up the pieces: domestic violence and child contact”
A research report by
CWASU and Rights of Women
Even though the court says it’s in the child’s best interests for children to
have contact, I feel my daughter’s emotional needs have been completely
neglected. I’m always having to pick up the pieces (Kathy)
In 1997 Rights of Women published a research report Contact between children and violent fathers: in
whose best interests? (Anderson, 1997). Our findings then indicated that mothers in child contact
proceedings felt that their views about the risks, to themselves and their children, of contact with
violent fathers were marginalised by professionals in the family justice system.
Since 1997 there have been significant developments in the law and policy on domestic violence and
child contact, yet anecdotal evidence from our family law advice line indicates ongoing failures and
missed opportunities within the family justice system to protect women and children from violent expartners and a tendency by judges and other statutory professionals to minimise domestic violence in
the context of applications for child contact.
Picking up the pieces explores the experiences of women and legal professionals in London of the
law, policy and practice in child contact proceedings and, 15 years on from our original research,
supports many studies revealing that women continue to have similar negative experiences of the
family justice system’s response to domestic violence. It makes a compelling case for significant
change in the way that domestic violence is addressed by the family courts.
The research draws on in-depth interviews with women undergoing child contact proceedings and a
survey of legal professionals, the project built on an existing rich body of knowledge about child
contact to highlight specific points where private law Children Act proceedings can enable women to
protect themselves and their children, or facilitate perpetrators’ attempts to continue power and
control.
Women and children’s experiences of violence, separation and initial contact arrangements
Our research indicates that women’s experiences of violence included a number of known risk factors
for further assault and femicide: strangulation; violence beginning or escalating during pregnancy;
jealous surveillance. Conflict over child contact, axiomatically present in all cases here, is also a welldocumented risk factor. Yet women consistently perceived emotional and psychological abuse, the
ways in which their ex-partners used ‘coercive control’ to entrap them, as the most destructive and
debilitating form of violence.
I had him arrested when I was three months pregnant as he tried to strangle
me then (Tina).
The research shows that separation – so often promoted as the route to safety, particularly to
safeguard children – did not end the violence and in many cases served as a trigger for its escalation
(Humphreys & Thiara, 2003; Seith, 2003). Nevertheless most women were committed to facilitating
access to children and sought many routes to make it possible, despite emotional and physical risks
to their own safety.
It got worse to be honest. The first occasion he was physically violent
after we separated was when he tried to take my son and said he would
take him forever. He grabbed my hair and pulled me to the ground
(Rachel).
The journey through legal proceedings: women and legal professionals’ experiences
The research revealed that many women were uninformed about private law proceedings.
Proceedings were ongoing over many years, meaning that women and children’s everyday routines
were subject to intervention and variation by different court orders. Some practices that have been
progressively entrenched in private law proceedings, such as mediation, compounded perpetrators’
ability to continue manipulation and intimidation. This perhaps reflects in no small part that domestic
violence is mostly understood by courts only as physical abuse.
I have rarely encountered judges who consider the emotional safety of
victims (R43, barrister).
At the same time, a number of promising practices also emerged. For example, where women did feel
believed by legal representatives, judges and agencies such as CAFCASS and Social Services, they
were more confident that impacts of violence on children would be factored into contact decisions.
Risk assessments conducted by specialist domestic violence perpetrator programmes consistently
identified harms and risks more accurately, reinforcing that this should be standard practice
(Newman, 2010). Finding of fact hearings offered a vital opportunity to present evidence of violence
before the court. Judicial continuity enhanced the experience and outcomes for victim-survivors and
their children.
The court confirmed he had done these but not everything, some things
they couldn’t decide. I was hurt they didn’t believe all of it, as I was telling
the truth, but happy, glad and relieved when I found out they believed me on
most of it (Chandra).
Overall, however, the research findings support previous research that decisions about child contact
are routinely separated from men’s violence (Eriksson & Hester, 2001; Kaye et al, 2003; Harrison,
2008; Thiara & Gill, 2012), and therefore formally establishing whether the violence had occurred was
often unimportant.
The judge said ‘sometimes men get in a rage and sometimes you have to
give them time to climb down from their trees’. How bad does the violence
have to get? Strangulation is pretty scary stuff (Beverley).
Case outcomes: contact orders
Despite histories of violence, despite children refusing contact or expressing terror and distress,
despite in some cases injunctions being in place and criminal convictions for domestic violence
related offences, despite women’s fears for their children’s emotional well-being, findings here support
multiple previous studies (e.g. Saunders & Barron, 2003; Harrison, 2008; Thiara, 2010) that
unsupervised contact was found to be routinely ordered to abusive fathers.
After the finding of fact hearing I was so shocked that they would even
consider letting him see [my son]. It seems what happened to me has
happened and it is separate from the contact decisions... they are more
concerned with fathers than children (Danielle).
For many women, a combination of poor/inadequate expert reports and judicial decision-making often
failed to acknowledge their concerns about legacies of violence and children’s emotional wellbeing or
factor them into child contact orders. Children’s views were also rarely reflected in orders. As with
women’s accounts of the journey through legal proceedings where emotional safety was rarely
considered by judges, the emotional demands placed on women to manage children’s resistance to
seeing abusive fathers were seldom recognised.
She doesn’t want to go to him, she is not happy. I could see she is not
happy, she was different completely. She said she did not want to stay in his
home. So I can’t say she is happy and safe (Fatima).
The aftermath of child contact proceedings
The final section of data analysis presents findings on the aftermath of child contact proceedings,
including compliance with court orders, post-order violence and financial and wider impacts. One
finding that raises questions about the motivations of abusive men who make contact applications is
the lack of compliance with contact orders. Many perpetrators did not take up the opportunities
granted to spend time with children, or in the case of indirect contact, to send children written
affirmations of their love and concern for them.
The finding of fact hearing found in my favour. At the final hearing, an order
for only indirect contact was made… I knew he wouldn’t write to the
children. He has not written in eight or nine months (Gita).
The financial toll of involvement in child contact proceedings was clear, with many women unable to
sustain paid work and increasing economic inequality between women and men. Recent cuts to
welfare benefits are anticipated to cause greater income loss to single mothers than other households
(Fawcett Society, 2011). In this context, child contact proceedings can be framed not only as a
continuation of abuse and control, but also as a contribution to wider structural inequalities. Yet while
women identified such impoverishment as undermining their attempts to rebuild a sense of autonomy,
for many this was dwarfed by the wider stresses, inconveniences and anxieties of fearing for their
children’s safety and negotiating their ex-partner’s court-sanctioned intrusion into their lives.
I paid out £35,000 in court and solicitors fees. I eventually qualified for legal
aid after losing my job [because of the disruption of the court case], but all
my savings were gone (Annette).
Recommendations
 There must be a robust and statutory framework in place within the family justice system
which ensures the early identification and effective response to women and children’s
experiences of domestic violence.
 Judges, solicitors, barristers, CAFCASS officers and mediators must receive compulsory,
specialist training on domestic violence and its impacts on women and children’s lives.
 Courts must seek risk assessments from specialist domestic violence organisations before
making a decision about contact.
 Adequate and appropriate safeguards should be put in place to enable women to voice their
concerns about their and their children’s safety.
 Special facilities that mirror those available in criminal proceedings must be introduced in civil
proceedings to prevent victim-survivors of domestic violence from having to face perpetrators
in court and protect victim/survivors from direct cross-examination by their perpetrators and
contact with them inside court buildings.
 The Government must monitor the impact of the Legal Aid Sentencing and Punishment of
Offenders Act 2012 on the representation of parties in private Children Act proceedings,
including disaggregating data about applicants and respondents by gender and status.
 The Ministry of Justice must collect and record data on:
o






the presence and extent of domestic violence (rather than allegations of harm) in
private family law proceedings;
o whether or not finding of fact hearings are held where there are allegations of
domestic violence;
o reasons for not holding finding of fact hearings where there are allegations of
domestic violence.
Following the recommendation of the Family Justice Review (MoJ, DfE & WAG, 2011), there
must be judicial continuity in the family justice system.
CAFCASS must review the decision to revoke their Domestic Violence Toolkit.
CAFCASS must have an effective complaints process and a clear and transparent process
for requesting a change of CAFCASS officer.
The Government must take into account the recommendations of the Family Justice Review
and the wealth of evidence on child contact proceedings and domestic violence, and
reconsider proposals to introduce a legislative presumption that both parents should be
involved in children’s lives.
The number and geographical availability of specialist supervised contact centres/provision
must be increased to address ongoing risks.
The Government must urgently review the decision to restrict legal aid in family law cases.
For more details and to download a copy of the full report visit www.rightsofwomen.org.uk.
“THE COURT GUIDE”
DOCUMENTS
Case Summary / position statement (try to keep this to two pages)
Contents:
1) Basic intro: Nature of proceedings. When last heard / if first hearing, outline of
issues for the day (3/4 paras);
2) Background in brief: basic outline of history including details such as what, if
any contact in place and reasons now in court i.e. parties basic positions (M
seeks RO / F seeks contact. (3/4 paras);
3) Update of any evidence obtained / sought since last hearing
4) Parties’ positions for the hearing;
5) Proposed directions / findings sought
Chronology:
If this is not agreed reflect this in the header e.g.
CHRONOLOGY ON BEHALF OF THE APPLICANT
(NOT YET AGREED)
Jan 2011:
Relationship commences
1.4.2011:
John is born
11.09.2011:
(Allegation 1) M alleges that she was slapped by F [C4 para 2 &
CRIS D62-69] this allegation is denied by F [C 19 para 4]
19.11.2011:
(Allegation 2) Police called by M during argument because F is
threatening to stab her [CRIS D74-79] & [C5 para 6] this
allegation is denied by F [C 20 para 6]
Dec 2011:
(Allegations 3) M alleges that F took her passport from her [C9
para12] This allegation is denied by F [C14 para 10]
19.12.11
M leaves family home and moves into a refuge
12.02.2011:
Application by M for NMO – Granted [B23]. Expires 12.03.2012
14.02.2011:
Return date: F makes application for Residence and contact.
NMO continued pending fact - finding on 22.05.2012. s.7 report
directed.
22.05.2012
Fact - Finding. Outcome - findings Allegations 3,4 & 5 only found
[Judgment B24-B26]
Schedules:
There ought not to be more than 6 allegations overall.
Generalised findings are not usually helpful e.g.
DATE
1
20112012
ALLEGATION
Throughout the
relationship F was
controlling towards
the mother
MOTHER
See
Mother’s
statement
FATHER
FINDING
Denied – see
Father’s
statement
Specify incident:
DATE
ALLEGATION
MOTHER
FATHER
FINDING
1 11.09.2011 M was slapped by C4 para 2
F in the face whilst CRIS 62-69
the children were
present
2
F denies this
C 19 para 4
19.11.2011 M calls police
C5 para 6
F denies this
during argument
CRIS D74-79 C14 para 10
alleging that F is
threatening to stab
her with a knife
3 December
2011
F took M's
passport from her
and has since
refused to return it
C9 para12
F denies ever
having M’s
passport
C14 para 10
Finding that
F did shout
at M in front
of the
children but
could not
find that she
was
slapped on
the
evidence.
Found.
Not found
Litigants – in- Person
Some "golden rules"
i.
Regardless of their behaviour you MUST introduce yourself, provide them
with any documents and let them know where you will be if they wish to
continue discussions;
ii.
Outline / clarify with them your position and make sure they understand what
this means.
"We are going to ask the Judge to make a Prohibited Steps Order. This is an
order to prohibit you from taking [John] from his school/ M's care/ the
country)".
NOT "we are seeking a PSO"
iii.
Explain undertakings if these are relevant/ likely to be raised by the Judge
even if you are not seeking these. If not being sought by you, explain why not
when doing so.
iv.
Keep family OUT simple.
v.
Always travel with a spare, up to date, paginated and unmarked bundle. This
can be provided to the Judge if, as is inevitable, they don't have one.
Vital Contact Number
The National Association of Child Contact Centres - Put this on your phone NOW:
0845 4500 280
www.NACC.org.uk
Lucinda Wicks
Coram Chambers
Domestic Violence, Child
Contact, Post-separation
Violence
Experiences of South Asian and AfricanCaribbean Women and Children
Executive Summary
Ravi K. Thiara
Aisha K. Gill
NSPCC charity registration number 216401 and SC037717,
© NSPCC 2012. You may use this publication for your own personal, non-commercial use and otherwise in accordance
with the Copyright Designs and Patents Act 1988 only. No part of this publication may otherwise be copied or reproduced
without prior written permissions. NSPCC is a registered trade mark. All rights acknowledged and reserved. Whilst we have
made every effort to ensure the accuracy of this publication, we cannot guarantee it and you should not rely on the contents
of this publication.
INTRODUCTION
This report outlines the key findings and recommendations of the first study to be conducted on child
contact, domestic violence, post-separation violence and ethnicity, specifically in relation to South
Asian and African-Caribbean women and children. The research was managed by the Centre for the
Study of Safety and Well-being (SWELL) at the University of Warwick and conducted between June
2008 and April 2010 by SWELL, University of Warwick and the Social Research Centre, University of
Roehampton. It was funded by the NSPCC.
Aims of the research
• To develop further understanding of the range of issues faced by South Asian and African-Caribbean
women and children in relation to child contact in the context of domestic violence and postseparation
violence.
• To identify the services being accessed by and available to women and children and to explore how
these services are responding to and experienced by them, including their experiences of assessments,
contact processes and actual contact arrangements.
• To ascertain experiences of and the kinds of support required by women and children in such
situations.
• To make recommendations for policy and practice.
Research methods
Qualitative methods were adopted for the research and included: discussions and interviews with
11 national professionals from the domestic violence, legal and academic sectors; 71 interviews and
discussions with a wide range of relevant local professionals; interviews with 45 women (30 South Asian
and 15 African-Caribbean); and interviews with 19 children (14 South Asian and 5 African-Caribbean).
3
Key Findings
Women and children’s experiences of domestic
violence and abuse
1) A range of abuse
Women had lived with high levels of severe abuse over long periods. In most cases, the abuse began
as psychological or emotional before becoming physical, and getting worse in frequency and severity.
The majority of women suffered daily abuse before separation. Two-thirds could be categorised as ‘high
risk’, according to the Domestic Abuse, Stalking and Honour Based Violence (DASH risk assessment,
when living with domestic violence, and for several South Asian women the abuse was also perpetrated
by other family members. Control and isolation was a feature for all of the women but women who
lacked family and social support, or knowledge of how things worked in the UK, experienced greater
vulnerability. Fear of abduction and/or separation from their children was a significant issue for all, but
especially South Asian women. The threat of and actual abduction of children as a tactic of abuse, whilst
hard to quantify and prove, was extremely commonly reported by a significant number of women. The
undermining of women’s parenting by their partners and in-laws was an issue reported by several South
Asian women. Where undermining took place for African-Caribbean women, it was at the hands of
their partners.
2) Disclosing abuse and seeking help
South Asian women tended to leave quickly with support from agencies and professionals when
separating, whereas African-Caribbean women were more likely to draw on support from friends and
family members. Both groups had a great fear of reprisal from partners and/or families.
Both groups were likely to under-report abuse but often for different reasons. Some South Asian women
were very isolated and knew little of their rights. Several African-Caribbean women wanted to deal
with the abuse themselves, even if they were aware of support services, and in most cases they had not
received support from agencies until after separation. Protecting black men from criminal sanctions
was also a powerful factor for African-Caribbean women along with the pressure to have fathers in their
children’s lives.
Notions of family honour and shame were central to contact battles in the context of domestic violence
across all South Asian groups. For African-Caribbean women, too, the sense of shame and stigma
was powerful in shaping their responses. However, honour and shame for some South Asian women
from close-knit communities took a particular significance, with the prevention of family ‘dishonour’ a
common pressure applied to make women keep quiet and comply.
4
Women described a range of ways in which the abuse had affected their self-esteem, confidence, and
mothering. Depression was a common experience, and was especially acute where abuse was also
perpetrated by other family members.
3) Children living with abuse
Children who lived with domestic violence were involved in men’s abusive behaviour in a range of
ways. Children frequently witnessed verbal and physical abuse and, at times, were directly subjected
to men’s violence. Children, even very young ones, were aware of men’s abusive behaviour. The impact
of abuse on children differed depending on the age of the child. Older children were reported to be the
most affected, with noted impacts on their confidence, speech development, ability to form friendships,
sense of emotional and physical safety, self-blame, eating habits, and other general behavioural issues.
A particular issue highlighted for African-Caribbean boys was that their experiences with their fathers
reinforced a racialised view of black men as violent.
Children who witnessed abuse tended to fear being targeted themselves and described feeling scared and
insecure, something that for some continued in the post-separation period. Although children who were
directly abused or witnessed repeated abuse held ‘anti-dad’ views, those children who were either not
abused or did not witness violence often held positive feelings about their fathers. All of the interviewed
children, even those who had mixed feelings about their fathers, were happy to be living out of the
abusive situation and saw spending time with their mothers as the most important aspect of their new
lives.
Children were often aware of post-separation violence, especially where men were very persistent and
abusive. In such cases, children had a lot of anger towards their fathers, feeling let down by them and
believing they were stopping them from getting on with their lives.
4) Men as fathers
The majority of South Asian and African-Caribbean women in the study described men as inadequate
fathers who took little or no responsibility for their children before and after separation. Men were
reported to do things with children when it suited them, if at all. In some cases, where women had
daughters, men were particularly uninterested and unsupportive, using the sex of the child to justify
their lack of involvement.
Few men were reported to make a financial contribution to the children’s upbringing. More concerning
was men’s neglect of children when they were left in their care, and their threats to take children to
keep women under control and assert their power. Some men also deliberately prevented women from
building a bond with their children as part of their overall undermining of women.
5
Executive Summary
Professional responses and women’s
Experiences
1) Women supportive of safe and beneficial contact
The majority of women wanted their children to have a positive relationship with their father and any
extended family, seeing this as an important part of a child’s identity. However, women also wanted the
benefits of contact with fathers to be greater than the risks, and for contact to be conducted in a way that
was safe and beneficial for their children and safe for themselves.
2) Negative responses from professionals and agencies
Both African-Caribbean and South Asian women mentioned feeling re-victimised by many of the
professionals and agencies they encountered, sometimes as a result of raising concerns about the impact
of their partner’s behaviour on their children.
Women repeatedly mentioned not being believed about their abuse experiences, and feeling undermined
as mothers, with their parenting coming under constant scrutiny by professionals and agencies. Women
saw a clear discrepancy between them being seen as what has been termed ‘failing to protect’ their
children, on the one hand, and a view of men as ‘good enough fathers’, on the other. Women commonly
felt they lacked a voice and were unable to challenge professionals.
Emphasis was placed on the right of fathers to have contact, with women coming under a great deal
of pressure to concede to contact, even when they and their children had experienced serious abuse.
While measures were in place for the courts to assess negative impact on children, it was reported that
this rarely happened adequately in practice, and women were frequently required to ‘prove’ abuse in
competition with men’s narratives.
3) Professional responses shaped by dominant social construction
of African-Caribbean and South Asian groups
Although things are changing, responses to African-Caribbean and South Asian groups
specifically continue to be shaped by a range of dominant social constructions and stereotypes.
This was seen to result in an over-involvement for some (South Asian) and a lack of involvement
or response for others (African-Caribbean). Many professionals assumed that South Asian
fathers, unlike African-Caribbean men, wanted to be a part of their children’s lives.
Thus, different perspectives among professionals marked the experiences and expectations of South Asian
fathers/families compared to those of African-Caribbean fathers/families. In particular, professionals
tended to accept the essentialist view of women and children in South Asian communities that sees them
as the property of fathers/families. Such stereotypes of communities, families and fathers were seen to
inform decisions about contact, where ‘culture’ often replaced gender as a consideration.
Many professionals (especially from Cafcass), in normalising male domination within South Asian
families which was then seen to make it difficult to assess male parenting, were reported to use gender
roles within South Asian families to excuse men’s lack of parenting and to undermine women’s assertions
of men’s inability to deal with children during contact.
6
Domestic Violence, Child Contact and Post-Separation Violence
In relation to African-Caribbean families, professional perceptions in general related to AfricanCaribbean fathers being absent or not taking equal responsibility for parenting, African-Caribbean
women having children by different men, women not being open and even lying about their situations,
and a view that African-Caribbean women tended to be more independent and less controlled by men.
Some respondents across professional groups said that, since black families were assumed to be violent,
domestic violence against African-Caribbean women tended to be normalised, sometimes leaving
women without support.
Despite the airing of common stereotypes by professionals, work around fathering issues for BME men
was seen to be greatly under-developed, both in practice and in research. In particular, the approach of
professionals to asking BME fathers about parenting was seen to require more training and development,
as many still clearly operated on the basis of stereotypes.
4) Over-reliance on or distrust of professionals
African-Caribbean women and educated South Asian women were more likely to be proactive with
professionals and agencies. However, one group of very vulnerable South Asian women tended to overrely
on the professionals they encountered without questioning their expertise, either because they did
not speak the language, did not know how the system worked, had little knowledge about the legal
process or had been so badly affected by the abuse that they lacked confidence. Additionally, there was
a reported trend of solicitors advising women to keep contact out of the courts in order to minimise the
costs of legal aid. In combination, these factors created additional pressures on women who were already
under pressure to keep things within the family.
In contrast, African-Caribbean women tended to distrust professionals and either dealt with things
themselves or drew on support from family and friends. For some, this was because they had had
previous negative experiences and reported being treated ‘really shabby’ while others did not want to
discuss their ‘business’ with outsiders.
5) Lack of knowledge about the legal process
The legal process was reported to be very confusing for women. Women repeatedly said that they wanted
solicitors to tell them about what to expect in court; this practice was only reported by a small minority
of women. Lack of knowledge and fear of legal processes created great anxiety and pressure for women
going to court. The majority of professionals recognised that the court process is a daunting experience
for women. In cases where men knew the system as a result of criminal activities, and were able to
manipulate matters, women reported feeling particularly disadvantaged.
6) Reluctance to use the legal process
South Asian women faced multiple pressures not to go to court, including not knowing the law, wanting
to persevere with the relationship, and issues of shame. When they did go it was a last resort arising
out of crises (including injuries to women or children) or through third-party intervention. AfricanCaribbean women were more likely to try informal contact and only when this failed were they open
to trying legal routes. Such reluctance to use formal routes by women was shaped by a fear of betraying
black men and black people by using the ‘white system’.
7
Executive Summary
7) Involvement of the extended family
For South Asian women, the extended family was implicated not only in the perpetration of abuse but
also in contact disputes so that family members were often reported to be dictating how things should
progress rather than that being in women’s control. Issues raised included family members ‘ganging up
on women’ to reconcile or agree to contact and men using the argument of the paternal family being
better placed to meet children’s needs rather than women living outside families and communities. This
resulted in some contradiction between considering women’s safety alongside children’s cultural identity
and varying practice was reported among professionals.
8) Mediation
Because mediation is common in many South Asian communities as an initial way of resolving marital
conflict and problems, some women had attempted to resolve issues over contact in this way, sometimes
on the advice of their solicitors. However, most of them had found this unhelpful, either because it
compromised their safety or because men were reported by them to lie frequently. It was generally
believed that mediation and resolution through family and community processes did not work for
women in situations of domestic violence and resulted in repeat victimisation. Caution was advised
against the use of mediation as a way of keeping disputes out of court for women leaving situations of
domestic violence.
9) Muslim Arbitration Tribunals (MAT s) and the Sharia Council
The role and function of MATs was not understood by the majority of professional respondents.
Sometimes women were involved in parallel processes – sharia and state court – without the court’s
knowledge. This was something that often caused delays in the court process. Several respondents
in domestic violence services raised concerns about the potential lack of power women had in such
processes.
10) Support from domestic violence and specialist BME services is
critical
Those women who were supported by domestic violence services were likely to receive legal advice and
support as well as to be put in contact with sensitive family solicitors at an earlier stage, enabling better
preparation of cases in contact disputes by solicitors already vetted by support services.
Domestic violence services were reported to be the most supportive to women, although the majority of
respondents highlighted the shortage of such services. Women who were supported tended to be more
confident throughout the legal process. Those in contact with domestic violence services were also more
likely to prefer a formal process for agreeing contact, whereas those not supported were more likely to
try informal routes.
8
Domestic Violence, Child Contact and Post-Separation Violence
Children’s experiences of contact
There appeared to be no hard and fast rules about gaining children’s views during the contact process.
When it did happen, Cafcass sought to elicit children’s wishes and feelings or observe contact between
children and fathers. Women were expected to be compliant and unchallenging throughout, and the
ways in which Cafcass conducted this process greatly impacted children and women’s emotional safety.
An overwhelming picture was presented of men having extremely limited involvement in parenting,
choosing when they wanted to ‘play dad’. The very strong view among women was that the system
allowed them to do this.
Children were reported by women to be differently affected by contact visits. This included: distress at
going for contact; neglect during contact visits; being abused or witnessing abuse during contact and
finding it hard to disclose; anxiety before and after contact; change in behaviour after contact, including
anger, aggression and defiance; negative impact on emotional and physical ill-health; blame placed on
mothers for forcing them to have contact or for the failure of fathers to turn up; confusion as a result of
men’s undermining of women; and fear of their fathers, leading to changes in behaviour. Women were
left to deal with children’s varied responses to contact and to cushion them from its negative effects.
Those who raised concerns with Cafcass about their children’s responses to contact were frequently not
listened to.
Children’s feelings about contact with their fathers varied greatly, from being happy, to hugely mixed.
Some children showed profound confusion about their fathers, wanting to live with them but also feeling
protective of their mothers. This was especially so where extremely abusive men manipulated children,
making promises and buying expensive presents in a bid to force women to reconcile. Children who had
weekend contact with their fathers and their families especially had very mixed feelings. Some children
wanted to see their fathers but reported spending limited time with them during contact visits and
some spoke about their fathers getting fed up with them after a short period. Children regarded the
opportunity to do different things from what they did with their mothers as a positive aspect of seeing
their fathers.
Some children who had great attachment to their grandparents were especially divided, though it was
also evident that grandparents put children under a great deal of emotional pressure. Some grandparents
paid children for each day they stayed with them. Children described receiving presents from their
fathers or grandparents as one of the best things about contact.
Those children who had been enticed by their fathers into informal contact through promises of presents
but then used this to be abusive towards their mothers in front of them were angry about this. These
children stated that they would never see their fathers again. Some felt confused about seeing their
fathers in contact centres whilst other children agreed to contact but had ambivalent feelings about
seeing their fathers.
9
Executive Summary
Women’s experiences of informal contact
Women experienced a great deal of pressure to give men a chance and agree to informal contact. This
combined with pressure from men and frequently compromised women’s safety.
For women with this arrangement, informal contact had been in place for between three weeks to a year
but for some African-Caribbean women it was over many years until severe post-separation violence led
to formal arrangements. African-Caribbean women were more likely to try informal contact and over a
longer period of time directly with men as they wanted their children to see their fathers, often because of
stereotypes of broken black families. African-Caribbean men were also reluctant to use formal processes
which they viewed as racist. Family pressure was a greater factor for many South Asian women.
While informal contact was working in three cases, men used informal contact to pressure women
to reconcile or withdraw from the legal process and to continue their abuse. Men also used informal
contact to ‘buy’ children, showering them with gifts, as part of a strategy to turn children away from their
mothers and to ‘get them on their side’. Women carried the responsibility to make informal contact work,
with men reported to have an ad hoc commitment, where they came and went as they pleased, expected
women to accommodate their visits, often did not turn up at all, and gave no regard to the impact of this
behaviour on their children.
Women’s experiences of Cafcass
In general, those interviewed saw the role of Cafcass as time-limited and focused though very powerful
as it shaped decisions about contact. Although the approach of Cafcass to different groups and its
understanding of domestic violence were much improved, its approach to issues of diversity was
regarded as a ‘work in progress’. Practitioners were still considered to be grappling with their awareness
of the intersection of ethnicity, culture and contact processes, especially in the face of increased cases
coming to their attention from different communities. Cases from South Asian groups were reported to
have greatly increased, and Cafcass practitioners reported having to undergo steep learning curves in
relation to violence in South Asian families and many still struggled to challenge arguments of ‘culture’.
Conducting sensitive and informed assessments, to ensure that they are culturally relevant and avoid
commonplace stereotypes, was underlined by senior Cafcass officers but also seen to be a ‘work in
progress’. Practitioners were seen by some within Cafcass to lack the necessary knowledge base and
interviewing skills for BME families and white colleagues attempting to improve their responses to
diverse families were reported to rely on South Asian colleagues for advice and unwitting racism and
stereotyping of different groups were reported to be common. Training for practitioners on domestic
violence appeared to be disconnected from issues of diversity and equality. Although some areas were
addressing this more proactively, an overall lack of consistency in approach was reported.
A commitment to the importance of contact for children among Cafcass practitioners was widely
reported. Consequently, a practice of convincing children to see their fathers was reported to be
common, and viewed by women and domestic violence services as children being forced to have contact.
Accusations of influence and coaching by women in their attempt to be obstructive were also reported
to exist widely by women and services supporting them. Where practitioners paid close attention to the
safety of children and mothers, this was viewed very positively by women and other professionals.
10
Domestic Violence, Child Contact and Post-Separation Violence
Some women who initially welcomed the involvement of Cafcass came to feel let down by their lack
of understanding, feeling that, as part of its process of listening to both sides, Cafcass gave too much
attention to men’s accounts and counter-allegations, whilst giving inadequate consideration and validity
to women’s experiences. Women who believed men were lying in their accounts to Cafcass to secure
maximum contact or to obstruct their own contact felt unable to make a challenge. Consequently,
women saw Cafcass reports as inaccurate and a poor reflection of their concerns and experiences. Even
where women had fairly positive encounters with Cafcass practitioners, they had concerns about the
final report and felt under pressure to agree with what was recommended. A minority of women who
were unhappy with their final report directly challenged Cafcass but it was clear from women’s accounts
that officers responded negatively to being challenged.
Administrative inadequacies on the part of Cafcass were repeatedly mentioned. Women reported that
Cafcass got their paperwork wrong, did not complete reports on time and sometimes failed to attend
court. Delays in making assessments and preparing reports can cause delays in court hearings and have
huge implications and create great anxiety for women, who often put their lives on hold until contact is
resolved, and especially where they come under pressure from wider family members. They can also lead
to the expiry of legal aid and women being left unrepresented.
Some tension between the approach of the courts and that of Cafcass was reported by senior Cafcass
officers. The courts’ focus on ‘proof ’ of violence and their reluctance to consider historical violence
(making it hard for BME women, who often do not have such evidence) was seen to be in tension with
the Cafcass policy on safeguarding.
Although some practitioners stated that they could identify when contact was used to continue abuse,
there appeared to be a limited understanding of post-separation violence issues, and it was something
that was overlooked in assessments. Where women reported issues of post-separation violence they were
not always believed by professionals, who sometimes believed women’s accounts to be exaggerated due to
their fear of their abuser. However professionals were increasingly becoming familiar with the methods
that men used, including contact, to continue abuse after separation. Moreover, while Cafcass reported
having links with local organisations, this was not always reflected in the reports of other professionals
and organisations, who stated that Cafcass failed to maintain contact or to follow up. Some practitioners
were often unaware of existing, albeit limited, specialist support services although this linking up was
seen as crucial for ensuring the post-separation safety of South Asian and African-Caribbean women.
There was a general acceptance among practitioners that children’s views could be ascertained in a
single session, supplemented by checks with schools/nurseries, and that they would be able to identify if
children had been influenced by a parent (though this has to be seen in relation to women’s reports that
if children said no to contact they were assumed to be influenced by their mothers). However, a minority
of practitioners recognised the limitations of making recommendations about contact based on what
children say in a single session. They also acknowledged that the practice of eliciting children’s wishes
was still very limited and was, in the face of work pressures, sometimes done just by telephone.
11
Executive Summary
Women’s experiences of legal professionals
and the courts
All of the legal professionals spoke about the recent ‘huge changes’ in responding to domestic violence
and child contact, especially since Re L and the two practice directions that have emanated from it.
Training for legal professionals was also regarded as adequate and, coupled with the recent changes, was
believed to ensure positive responses for women and children. However, the experiences of AfricanCaribbean and South Asian women with legal professionals and court processes raise many issues for
practice in this area.
Although legal professionals stressed the importance of assessing each case, in the main, contact was
considered desirable and the right of fathers to contact remains a strong principle in practice. Only a
minority of respondents thought that the benefits of contact for children were exaggerated and that the
view that men’s motive for contact was always their interest in the child needed to be questioned. It was
also believed that the system was not always able adequately to assess the benefits of contact for children.
Indeed, some thought that the principles of maintaining the status quo and the presumption of contact
coincided with the interests of men at the expense of many BME women. None of the professionals
interviewed could provide examples of cases in the last ten years where contact – even if it was indirect
– had not been ordered.
South Asian women often faced additional issues that were seen to require greater attention to ensure
that contact was a safe experience. Issues such as the history of abuse, the undermining of the mother,
involvement of wider family members, arguments about maintaining the cultural identity of children,
and women’s marginal position within the family were reported to be either inadequately understood or
poorly taken into account in decisions about contact. The need was underlined for greater support for
South Asian women by a range of professionals to ensure that the wider family did not attempt to deal
with things outside the court’s orders and so compromise women and children’s safety.
1) Solicitors and barristers
The solicitors and barristers interviewed raised a number of issues with implications for women and
children involved in contact disputes. As many experienced solicitors and barristers face pressures not
to do publicly funded work, inexperienced solicitors are left to deal with domestic violence cases. This
was seen to provide a poorer service for women and restrict their choices, with greater implication for
the cases of South Asian women which tend to be complex and where greater knowledge and expertise is
required from solicitors and barristers. Funding restrictions increasingly impact on the role of solicitors,
including limiting the time they spent on explaining matters fully to their clients, something women
felt strongly about, or making referrals for support. Solicitors frequently had difficulties balancing
women’s expectations with the legal process that had to be followed, with women’s over-reliance on legal
professionals creating further pressures. However, limited knowledge of the legal system resulted in both
groups of women distrusting the legal process. This was seen to lead to women ‘not being fully open’
about their experiences with legal professionals until they had built up a relationship of trust, something
that required time on the part of professionals.
Although a woman’s first statement is a vital element in building up evidence and ensuring credibility
in court, pressures on solicitors’ time, coupled with the complex cases typical of South Asian women,
12
Domestic Violence, Child Contact and Post-Separation Violence
led to insufficient preparation of these. This along with additional issues for South Asian women who
under-report abuse to the police or other agencies, clearly has implications for the contact process and
its outcomes for women and children. Inadequate preparation coupled with issues of disclosure and
memory can lead to a loss of women’s credibility in court. The legal professionals interviewed regarded
evidence building as the single most important issue requiring greater attention, sensitivity and insight
into South Asian women’s experiences, something they were not always afforded.
Although it was recognised by all legal interviewees that the effects of psychological abuse could often be
worse for women and children, in deciding on ‘relevant’ facts, it was evident that a much greater focus
appeared to be given to physical violence than to patterns of coercive control or other non-physical
forms. Although corroborative evidence was not considered crucial, as issues would be covered in fact
finding hearings, in practice it was seen to be harder for women who did not have such evidence as it
placed greater pressure on women in court, where establishing a true picture and credibility through
interpreters was further reported to be difficult. There was some frustration on the part of judges and
solicitors about fact finding hearings being ordered in most cases of domestic violence, as it was believed
this would not make a difference to the outcome but created huge implications for everyone’s time,
resulting in delays.
2) Courts and judges
Greater judicial training on domestic violence and risk was seen to be in place and most judges were
considered to have undergone this. However, the experiences of women and the accounts of some
professionals revealed on-going issues in relation to the response of judges in contact cases where
domestic violence is a factor, though many were increasingly seen to be taking domestic violence more
seriously.
There were contradictory views about judges’ awareness of issues for African-Caribbean and South
Asian families. Some interviewees stated that some judges were fairly aware of the issues for diverse
communities whilst others reported that understanding of women’s cultural contexts was still patchy. In
general, judges appeared to differ in the ways that they handled domestic violence and contact cases and
these were experienced as mixed responses by women, ranging from those who displayed a high level
of insight and understanding into their situations to those who had very little idea, with the majority of
judges reported to be operating on the basis of a presumption of contact.
A number of issues emerged from the findings. A greater emphasis was reported to be placed on
physical violence when considering ‘serious’ domestic violence (defined on the basis of severity and
frequency of attack) than non-physical abuse. Several of the non-legal respondents believed that the
courts placed a greater emphasis on the rights of fathers at the expense of the safety of women and
children. In some South Asian cases, ‘professional’ men gained sympathy from judges when arguing
women lacked language skills and could give little input to children. Indeed, many women believed that
the focus was too readily placed on them rather than on men’s violence by the courts. Examples of cases
were provided where supported contact had been ordered to men with a record of criminal activities
and prison sentences. However, where women had positive experiences with judges, this included cases
where there had been continuity in judges, where judges had been insightful about their issues, and
where they had been less accepting of men’s evidence.
13
Executive Summary
Lengthy contact processes were seen to result from extremely busy courts and a lack of supervised
contact centres when contact was gradually introduced. All of those interviewed talked about the
length of the processes having a negative impact on women and children, especially as this prolonged
the time during which wider family members could exert pressure on women. Moreover, pressure on
the courts’ time led many respondents to believe that judges often rushed to establish contact, without
taking adequate account of women’s concerns about men’s behaviour. Rushing contact often betrayed
a lack of understanding of South Asian women’s situations as it gave little time to women and children
to recover from the trauma of abuse as well as from the wider pressures placed on women by extended
families. It was a widely held view among many professionals that being on their own was a challenging
experience for many South Asian women, especially those who had been severely abused and isolated,
for which they required a high level of support to recover and become independent. Consequently, many
professionals and women wanted contact to proceed slowly, especially so that the developing relationship
between children and fathers could be properly monitored.
Decisions regarding contact were frequently seen to prioritise cultural identity issues for children over
the safety of women and children, especially where these arguments were raised by men and where
professionals lacked the necessary insight and confidence to challenge arguments of culture and
identity.
All of the interviewees identified the impact of language barriers on the contact process, including court
proceedings, as one of the main issues for South Asian women. The present use of interpreters was seen
to be unsatisfactory and many examples of this were provided.
Women’s experiences of contact centres
Contact centres provide an important service for families involved in contact disputes and, in addressing
issues raised by past research, considerable development has taken place in recent years. Despite the
development of national standards and protocols and an accreditation system for contact centres,
concern continues to be raised about the unsafe practices of many service providers. Cuts in funding
for contact assessments pose further risks to ensuring the safety of women and children in contact cases
where there is a history of domestic violence.
The lack of provision of contact centres in general, and supervised centres in particular, was widely
reported by all those interviewed. Great variation in practice among supervised and supported centres,
as well as between supported centres, was further highlighted. While funding issues remained the key
challenge for supervised centres, their practice in relation to domestic violence suggests that great
attention has been given to the safety of women and children. Such centres were reported to generally
have a high level of understanding of the dynamics of domestic violence and into perpetrators’ behaviour,
while recognising the limitations of their own role in assessing the relationship between children and
fathers in a limited number of sessions. A minority of those centres specifically set up to meet the needs
of BME groups expressed strong views about the ways in which men, especially African-Caribbean men,
were negatively constructed in the contact arena and regarded their provision as offering a sensitive
service. Supported centres varied considerably and it was evident that the larger centres with high levels
of referrals continued to be challenged to ensure a safe service that was sensitive to issues of domestic
violence and to equality and diversity. In some centres, this inadequacy in training was reflected in the
worrying attitude that women used domestic violence to prevent men from having contact with their
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Domestic Violence, Child Contact and Post-Separation Violence
children. Inappropriate referrals to centres without expertise in domestic violence were continuing and
presented a risk for families who required high levels of safety.
Language support was a big issue for contact centres which were reported to be working with an
increasing number of BME families without any recourse to interpreting services. Despite guidance
from National Association of Contact Centres to use independent interpreters, it was evident that many
centres struggled. Centre staff and women reported that men would exploit this lack, using their own
language during contact visits to make threats to women and to place pressure on children.
Even where domestic violence training was made available to staff, ethnicity and cultural issues were seen
to be inadequately covered. Some of the supported contact centres visited had a few staff who showed
awareness of domestic violence and issues for BME families, but it was more usual for staff to have one or
the other. Despite high numbers of South Asian families reported to be using supported centres, the lack
of cultural awareness, in particular about the ways in which different families are structured or function,
was considered to create a ‘double jeopardy’ for such families.
Safety was not always given full consideration by some supported centres which were reported still to
be struggling to identify risk and to pick up on post-separation violence. In such cases, handovers were
inadequately monitored and were considered difficult for centre staff to govern, especially as men were
very skilled at harassing and threatening women, including through the use of their own language. The
onus was often on women to raise these issues and return with them to court, with all the effects on their
emotional health that entails. Moreover, the impact on children of such harassment can be difficult to
assess if they are not properly consulted or do not feel free to raise issues, especially given their emotional
confusion and divided loyalties. It was evident that women frequently had the responsibility for drop-off
and pick-up, something that was reported to compromise their safety and to be a financial burden for
many. The vulnerability of some South Asian women was seen to be enhanced when they were left to
make their own way to drop-off and pick-up children for contact. The reported lack of monitoring and
follow up once contact had been ordered was also seen to compromise women’s safety.
Women’s experiences of post-separation
violence
Post-separation violence was a significant issue for 78% (n=35) of the women, and especially for some
African-Caribbean women where separation had occurred years earlier. For some, extreme levels of
post-separation violence had resulted in the involvement of social services and in contact being dealt
with through the courts, despite women’s initial reluctance. Respondents from domestic violence services
were very clear about the role post-separation violence played in continuing to shape and control the lives
of women and children. The fact that greater numbers of people were involved in the post-separation
period for South Asian women created additional difficulties. It was reported that children either
witnessed continuing and severe incidents of violence or were afraid of the threat of such violence. In
some cases, men were still using contact to get access to women five years or more years after separation.
Post-separation isolation and the lack of post-separation support affected the ability of AfricanCaribbean and South Asian women to move on. However, the role of this support, and especially the
value that women themselves placed on community and family, was poorly understood by professionals.
15
Executive Summary
African-Caribbean and South Asian women who were subjected to post-separation violence commonly
experienced pressure to withdraw from the legal process and to give in to contact, a fact not accounted
for by the judicial system. A minority of South Asian women had also been pressured by professionals
who were members of their communities, including police officers, to ‘leave the guy alone’. Men’s use
of contact and children to control, intimidate and undermine women was widely reported by both
professionals and women. Much of this was seen to be hard to monitor or prove by women, but it was
evident from women’s accounts that men used every possible avenue of contact with children to get to
women. Men used intimidation during supported contact visits, and also used other family members to
put pressure on women. Such issues led to women wanting contact to take place in supervised centres.
In some cases, men attempted to control what women wore during contact. Post-separation violence was
extremely severe in cases where men were involved in other criminal activities. The experience of
postseparation
violence was made worse for women who were threatened not to involve the police, leaving
them with little prospect of protection against their on-going abuse.
Although women reported serious and persistent post-separation violence and harassment, they found
that professionals were slow to respond. Even women who risked calling the police, after being warned
not to do so, found the police lenient, seeing men’s contact with women as related to their children rather
than as ongoing violence against women. Thus, a limited view of domestic violence that did not include
post-separation violence appeared to be held. Once women had negative responses from agencies and
professionals to their reports of post-separation violence, they were likely to deal with post-separation
violence issues themselves. Consequently, even though women were subjected to high levels of postseparation
violence, they and their children were often placed in dangerous situations without any
recourse to positive intervention.
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Domestic Violence, Child Contact and Post-Separation Violence
Suggestions for Improvements
1) General suggestions
1.1 Earlier information and advice about the formal contact process – Providing information and
advice about the legal process, including the court process, at an early stage is crucial for women in order
to lessen their confusion and anxiety and for them to feel better equipped to deal with all aspects of the
contact process.
1.2 Earlier and more information about support services – Women need an organisation to go to for
information about support services, and it is important for them to know about support services at an
early stage.
1.3 Co-ordinated approach through cross referrals for women – In recognising the limited support role
of Cafcass and solicitors, the importance of having a co-ordinated approach to a case and of professionals
making cross referrals to available support agencies is an important way for local responses to be
improved to women and children.
1.4 Specialist BME support and counselling services – The limited provision of specialist domestic
violence support services for BME families was widely noted. The need for more local specialist BME
services for women and children remains a nation-wide issue and requires consideration by those in a
position to commission and fund local services.
1.5 Post-separation support for women – Extremely limited post-separation support was available to
women, especially to those who were going through protracted post-separation violence. In planning
services for women and children affected by domestic violence, the issue of general and specialist
post-separation support needs to be addressed by all relevant funding bodies and support services. In
addition, post-court support emerged as a gap for women involved in contact proceedings, especially
where men use contact with children to also continue abuse against women. The need for South Asian
women to be offered support for longer was emphasised by the research findings so that women can be
supported to build their confidence and to live independently.
1.6 Parenting support for women – While there remains a need for parenting interventions for men,
it must also be a consideration for women whose mothering has been undermined as part of their
experiences of abuse. The development of such support, which is tailored to the needs of South Asian
and African-Caribbean women, should be explored by all relevant support services and recognised by
funding bodies.
1.7 Accessible and safe (supervised) contact centres sensitive to diverse needs – Women need accessible,
affordable and safe contact centres that have an understanding of their diverse experiences and needs.
The majority of respondents noted the shortage of such centres, especially specialist ones, as well as a
lack of safe handover facilities. This gap requires the further attention of all relevant local and national
stakeholders. In the face of limited knowledge and insight on the part of contact centre staff – paid and
voluntary – about the context of diverse families and domestic violence, the need to have greater training
for all staff on domestic violence and diversity/equality issues is underlined.
17
1.8 Assistance with pick-up and drop-off – Given the lack of monitoring currently in place, ‘drop-off
and pick-up’ was identified as a key safety issue for women and children, especially some groups of
South Asian women. The need to develop safe and independent options for ‘drop-off and pick-up’ during
contact visits by key players at a national and local level was underlined by the study findings.
1.9 More perpetrator and parenting programmes for men – Despite some national developments, the
need for both perpetrator and parenting programmes as a way of addressing men’s abusive behaviour
and their parenting was widely emphasised. This requires the attention of those who commission and
fund services at a local level. Ways in which such interventions can be specifically targeted at BME men
also needs to be explored.
1.10 More support and therapeutic services for children – The lack of services for children affected by
domestic violence and contact issues was widely noted. Support services for South Asian and AfricanCaribbean children were especially under-developed. The urgent need to address this gap and ensure the
development of appropriate services for children was underlined by the findings of this research.
1.11 Training on equality/diversity and domestic violence for all professionals and access to specialist
who can provide support and advice – Quality training on diversity and domestic violence for all relevant
agencies and professionals involved in contact processes is necessary to ensure greater sensitivity in
responses. In particular, training for the judiciary and legal professionals on these combined issues is
urged. The importance of more training for Cafcass and the courts on the cultural contexts of AfricanCaribbean and South Asian women and their particular experiences of domestic violence and postseparation
violence was underlined by the research findings. This should be explored by all relevant
professional bodies involved in the development and delivery of training to their members.
1.12 Clearly defined contact orders – To prevent further anxiety and distress to children and women, the
importance of the courts issuing clear contact orders was emphasised whereby the time by which men
have to attend contact s stipulated. The issue of clearly defined contact orders could be considered by the
relevant bodies in the family justice system.
1.13 Assessment of men’s parenting and greater consideration of men’s violence – Findings show that
the courts and related professionals frequently disassociate men’s violence from their parenting. The
importance of assessing men’s parenting in the context of men’s violence requires further development,
as opposed to the leap that is made by current service responses from ‘violent man’ to a ‘good enough
father’.
1.14 Greater inter-agency co-ordination – The lack of inter-agency co-ordination was identified as an
issue by many professionals and women. Given the complexity of contact disputes involving AfricanCaribbean and South Asian women, it was considered necessary to improve co-ordination between all
agencies and professionals involved in a case. This needs to be considered by local stakeholders and
agreed processes established.
1.15 Greater public awareness – While there is now greater societal awareness of domestic violence
and abuse, the findings overall highlight the need for greater public awareness about its impact on
children, specifically targeting African-Caribbean and South Asian communities. Where possible, those
organisations and professionals involved at a local and national level could explore the development of
targeted campaigns.
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Domestic Violence, Child Contact and Post-Separation Violence
2) Suggestions for Cafcass
2.1 Culturally competent assessments through training and support – The need for Cafcass to integrate
equality and diversity into their assessment process and for greater training on this to equip practitioners
was underlined by the research findings. Ensuring that women suffering domestic violence are allocated
sensitive Cafcass officers who have an understanding of the cultural context of families as well as domestic
violence should be a priority for Cafcass. The continuing lack of understanding shown in Cafcass reports
highlighted the importance of greater training on domestic violence and equality and diversity issues
and this should be further considered by the organisation.
2.2 Listening to children – Although some thought is now given to eliciting children’s wishes and feelings
by Cafcass, work with children was still extremely limited. It is important that greater thought is given to
consulting children and to making time to do this appropriately and sensitively, and for this to feed into
the recommendations made about contact.
3) Suggestions for legal professionals
3.1 Appropriate legal advice in own languages – It was emphasised that women require legal advice
that is sensitive to their circumstances and locations and provided in their own languages. This is also
required at an earlier stage than is currently done.
3.2 Language support – The importance of having access to reliable independent interpreting services
that can respond at short notice was underlined. It is suggested that this could be done through developing
a designated panel of vetted interpreters trained in domestic violence and equality and diversity issues
that can be used in court and by Cafcass.
3.3 Improved preparation of first statement and evidence gathering – It was clear that greater time
and attention must be given to the preparation of women’s initial statements and to the gathering of
corroborative evidence. Although there are external pressures militating against this, positive practice
currently exists among many legal firms. In order to ensure that women are not poorly represented, the
allocation of experienced solicitors and barristers to cases of domestic violence with South Asian and
African-Caribbean families should be encouraged.
3.4 Quicker resolution in court process – While the lack of resources for the courts and Cafcass is an ongoing
consideration, the need for cases to be resolved more quickly in court, without compromising the
safety of women and children, is crucial for reducing the negative impact of protracted contact disputes
on women and children. As part of this, the need for fact finding hearings, often delayed by the shortage
of court space, to be carried out earlier was viewed as key to improving the court process.
3.5 Greater liaison between courts – Greater liaison between criminal and family courts was urged, to
ensure the safety of women and children.
3.6 Challenge shift towards mediation – Despite increasing calls to increase, promote and even ‘rebrand’
mediation for resolving disputes over children within separated families, it needs to be recognized that
in situations of domestic violence, mediation can greatly undermine the safety of women and children.
The importance of exercising caution in making assumptions that mediation is in the best interests
19
Executive Summary
of women and children where domestic violence and post-separation violence are factors is clearly
underlined by the research. Practice that militates against the safety of women and children, especially
in some communities, should be discouraged.
20