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Domestic abuse and privatelaw children casesA literature reviewAdrienne BarnettBrunel University LondonMinistry of Justice Analytical Series2020

Analytical Services exists to improve policy making, decision taking and practice by theMinistry of Justice. It does this by providing robust, timely and relevant data and advicedrawn from research and analysis undertaken by the department’s analysts and by thewider research community.DisclaimerThe views expressed are those of the authors and are not necessarily shared by theMinistry of Justice (nor do they represent government policy).First published 2020 Crown copyright 2020This publication is licensed under the terms of the Open Government Licence v3.0 exceptwhere otherwise stated. To view this licence, visit /version/3Where we have identified any third party copyright information you will need to obtainpermission from the copyright holders concerned.Any enquiries regarding this publication should be sent to us publication is available for download and-analysis/mojISBN 978-1-84099-944-0

AcknowledgementsThe author is very grateful to the academic members of the Ministry of Justice’s panel ofexperts for their assistance in formulating the themes and identifying studies for thisliterature review. A debt of gratitude is owed, too, to Ministry of Justice research staff fortheir assistance in identifying literature on aspects of the law, and to the two anonymousexternal referees and the Ministry of Justice research team for their helpful and insightfulcomments and suggestions.The authorDr Adrienne Barnett is a Senior Lecturer in Law at Brunel University London. She is a doortenant at One Pump Court Chambers, where she formerly practised as a family lawbarrister.

ContentsList of tablesSummary1.1.1 Children’s and parents’ experiences of domestic abuse before and afterparental separation1.2 Parents’ and children’s experiences of contact with perpetrators of domestic abuse1.3 The response of courts and professionals to allegations of domestic abuse andto children’s participation in court decision-making1.4 The experiences and views of victim/survivors and of children of family courtproceedings1.5 The operation of Practice Direction 12J1.6 The enforcement of contact orders2.1245579Introduction113.Methodology3.1 Quality assurance3.2 Limitations1314144. forms and prevalence of domestic abuseIntroductionWhat is domestic abuse?The prevalence of domestic abuseChildren’s experiences of domestic abuse5.Parenting in the context of domestic abuse5.1 What are the parenting practices of domestically abusive parents?5.2 Experiences of mothering in the context of domestic abuse6.’ and children’s experiences of contact with perpetrators ofdomestic abuseIntroductionMothers’ experiences of children’s post-separation contact withdomestically abusive fathersThe experiences, risks and outcomes for children of post-separation contactwith abusive parentsChildren’s views on post-separation contact with a domestically abusive parent7.Parents’ and children’s experiences of the Family Courts7.1 An overview of the research on the family justice system’s response todomestic abuse in private law children proceedings7.2 The response of courts and professionals to allegations of domestic abuse2727314141414449545459

7.3 The response of courts and professionals to children’s participation in courtproceedings and decision-making627.4 The views and experiences of victim/survivors of abuse of the family court process 657.5 Children’s views on their own participation in family court decision-making708. measures and abusive cross-examinationIntroductionSpecial measuresAbusive operation of Practice Direction 12J84The background and development of Practice Direction 12J84How is the court made aware of domestic abuse?86Deciding whether the abuse alleged is relevant to child arrangements/contact87The prevalence of fact-finding hearings91The decision to hold a fact-finding hearing92The making of consent orders95Interim contact pending a fact-finding hearing and/or a final welfare determination 97The conduct and outcomes of fact-finding hearings98The assessment of future risk if domestic abuse is proven or admitted101Interventions to reduce risk103Determining the welfare decision104What orders are made in cases involving domestic abuse?106Safeguarding children and non-abusive parents when orders for direct contactare made1109.14 Consistency of the application of PD12J11310. The enforcement of contact orders11511. Orders under Section 91(14) of the Children Act 1989 (barring orders)11812. Conclusions122References128Appendix AResearch methodologies141141Appendix BThe Duluth Power and Control Wheel164164Appendix CThe Duluth Post-Separation Wheel165165

List of tablesTable 4.1 The incidence of domestic abuse in samples of child arrangements/contactcases20Table 9.1 The prevalence of fact-finding hearings in samples of cases wheredomestic abuse is alleged92Table 9.2 The incidence in samples of orders for no contact107

Domestic abuse and private law children casesA literature review1. SummaryThis research was commissioned in support of the Ministry of Justice’s (MoJ) panel offamily justice experts to provide a detailed review of the existing literature on the risks tochildren and parents involved in private law children cases of domestic abuse and otherserious offences. It also aimed to review the literature on how these risks are managed bythe family courts in England and Wales. The scope of this literature review, the specifictopics for consideration and the methodology were formulated in consultation with theacademic members of the panel of experts. Considering the available literature, the topicsthis review sought to address were: children’s and parents’ experiences of domestic abuse, including the parentingpractices of domestically abusive parents and experiences of mothering in thecontext of domestic abuse before and after parental separation parents’ and children’s experiences of contact with perpetrators of domesticabuse, including the risks and outcomes for, and children’s views on, postseparation contact with domestically abusive parents the response of courts and professionals to allegations of domestic abuse and tochildren’s participation in court decision-making the experiences and views of victim/survivors of domestic abuse and of childrenof family court proceedings the operation of Practice Direction 12J (PD12J) by courts and professionals(which sets out what the family court is required to do in any case relating toarrangements for children where domestic abuse is alleged or admitted) the enforcement of contact ordersThis literature review was undertaken between 22 July and 31 August 2019. A rapidevidence assessment approach was adopted because of the limited timeframe of thereview. Academic databases and electronic data sources were searched for existingliterature reviews and for studies conducted in England and Wales from 1996 to August2019, although studies undertaken in other common law jurisdictions were included where1

Domestic abuse and private law children casesA literature reviewthere were gaps or insufficient data in the England and Wales research. The searchesproduced a total of 87 publications for review. These include: literature reviews large-scale quantitative studies based on surveys, court records and otherrecords qualitative studies using interviews, focus groups, case studies and observation retrospective studies longitudinal researchSummaries of the methodologies of all these studies are set out in Appendix A. Qualityassurance was met by searching only for peer-reviewed literature and practice-basedresearch undertaken by or with academic researchers for nationally and internationallyrecognised organisations.The main findings from the literature reviewed are summarised below.1.1Children’s and parents’ experiences of domestic abusebefore and after parental separationNumerous statistics and research studies across a broad range of methodologies andpopulations reveal that domestic abuse can start, continue and increase in severity on andafter parental separation (Section 4.3). Findings and estimates from predominantlyquantitative studies based in England and Wales indicate that the prevalence of domesticabuse in private law children cases is considerably higher than in the general population,with allegations or findings of domestic abuse in samples of child arrangements/contactcases ranging from 49% to 62% (see Table 4.1).That domestic abuse is harmful to children is recognised by statute (Section 31(9) ChildrenAct 1989) and by PD12J (Para.4). The literature reviewed shows that children are directlyinvolved and affected by domestic abuse in a variety of interlinked and co-existing ways(Section 4.4). Many studies found a high incidence of physical, sexual and emotionalabuse, and a greater risk of child homicide, in the context of domestic abuse. A wide rangeof studies revealed the physical, psychological, behavioural, developmental and emotionalproblems, disorders and traumas sustained by children experiencing domestic abuse,2

Domestic abuse and private law children casesA literature reviewwhich can carry through to mental and physical health difficulties in adult life (Section 4.4).Qualitative studies found that living with coercive control can have the same cumulativeimpact on children as it does on adult victim/survivors, which may contribute to emotionaland behavioural problems in children. While some children may have more intrinsicresilience to the impact of domestic abuse than others, a supportive relationship with acaring adult, particularly the non-abusive parent, has been found to be the key protectivefactor for children.No studies were identified that explored the parenting practices of domestically abusivemothers. The limited number of studies that specifically investigated the parentingpractices of domestically abusive fathers found that their parenting practices can bedirectly harmful to children, including physical and emotional abuse and neglect(Section 5.1).No studies were identified which explored victim/survivors’ experiences of fathering in thecontext of domestic abuse. A wide range of research is available which investigatedvictim/survivors’ experiences of mothering in the context of domestic abuse (Section 5.2).Continuing abuse can contribute to physical and mental health problems in women, canaffect their relationships with their children and can impact negatively on their parentingcapacities. The effects of coercively controlling abuse, including loss of self-esteem andconfidence, can be particularly debilitating and can take years to overcome. A range ofqualitative studies found that perpetrators can intentionally try to undermine, distort anddisrupt the mother-child relationship through tactics such as demeaning, criticising andinsulting women in front of children, encouraging children to participate in the abuse oftheir mothers and preventing mothers from spending time with children.The literature reviewed found that ongoing abuse after parental separation can leavevictim/survivors in a continued state of fear and can substantially impede women’srecovery and ability to regain their confidence and parenting capacities and support theirchildren’s recovery (Section 5.2.2).3

Domestic abuse and private law children casesA literature review1.2Parents’ and children’s experiences of contact withperpetrators of domestic abuseChild contact was highlighted by numerous studies as the key site for the perpetration ofcontinued, potentially more serious, abuse, including homicide, of mothers (Section 6.2).Children can be exposed to the physical, psychological and sexual abuse and coercivecontrol of their mother during contact. Additionally, contact could be used by perpetratorsas a site to undermine mothers including criticising, denigrating and degrading them infront of or to the children, getting children to pass on abusive or threatening messages totheir mothers, and manipulating children to provide information about their mothers(Sections 6.2 and 6.3).A wide range of predominantly qualitative studies found that children’s continuedinvolvement with a parent who perpetrates domestic abuse carries the risks of maintainingcontrolling, dominant or bullying relationships, and of children being physically, sexuallyand emotionally abused, neglected and abducted, children witnessing the abuse of theirmothers, being co-opted into the abuse of their mothers, and at worst, children being killed(Section 6.3). Qualitative and quantitative studies found that the effects on, and outcomesfor children are poorest when post-separation contact is the site for continuing domesticabuse. Children can, however, recover from the impact of domestic abuse when they arein a safer environment, but ongoing contact with the abusive parent can create difficultiesfor children’s ability to recover and sustain recovery (Katz, 2016).Qualitative and quantitative studies revealed that children have widely varied, conflicted,mixed and ambivalent feelings and views about their fathers and contact (Section 6.4).The studies reviewed reveal that the priority for nearly all children, even those who dowant a relationship with their fathers, is safety, for themselves, their mothers and the restof their families.4

Domestic abuse and private law children casesA literature review1.3The response of courts and professionals to allegationsof domestic abuse and to children’s participation in courtdecision-makingIn England and Wales and in many other jurisdictions the family courts strongly promoteongoing relationships between children and both their parents following separation, evenin circumstances of domestic abuse (Section 7.1). Numerous qualitative and quantitativestudies have identified how a strong presumption of contact has led to domestic abusebeing marginalised, misunderstood, and downgraded within private law childrenproceedings, which may conflict with a focus on protecting children from harm (Section7.2).Qualitative and quantitative studies revealed a widespread view among courts andprofessionals that mothers who opposed or sought to restrict contact or even raisedconcerns about it were ‘implacably hostile’ or, more recently, ‘alienating’, which has led toan increasing perception among courts and professionals that mothers raise falseallegations of domestic abuse (Section 7.2). However, empirical case file analyses foundthat cases of ‘implacable hostility’ were very rare, and qualitative studies found that themajority of mothers, including those who had experienced domestic abuse, weresupportive of post-separation contact (Section 7.2).A consistent theme that emerged from the research literature was that a ‘selectiveapproach’ was taken to children’s views in court proceedings. Children’s views were takenseriously and were even determinative if they wanted contact with non-resident fathers,but their views were also more likely to be disregarded and discounted, and treated asproblematic, when they were opposed to contact – even if children had experienceddomestic abuse (Section 7.3).1.4The experiences and views of victim/survivors and ofchildren of family court proceedingsQualitative studies revealed that women experienced the promotion of contact by thefamily courts and professionals as highly problematic in the context of domestic abuse(Section 7.4). Mothers felt that domestic abuse was not taken seriously and minimised by5

Domestic abuse and private law children casesA literature reviewcourts and professionals, and that the dynamics and impact of domestic abuse were notunderstood. Women participating in a number of studies were dismayed to find themselveslabelled unreasonable, over-anxious, and obstructive of contact by professionals if theyraised concerns about contact with violent fathers. The disbelief expressed by courts andprofessionals, including their own lawyers, when women raised concerns about domesticabuse, left them vulnerable and unsupported. However, where women did feel listened toand believed by judges and professionals, they felt supported rather than undermined, andmore confident that the impact of abuse on themselves and the children would be factoredinto contact decisions. Qualitative and quantitative studies report mothers experiencingconsiderable pressure from courts and professionals, including their own lawyers, to agreecontact arrangements or attend mediation, in some cases without any assessment of childwelfare concerns or without obtaining children’s views.The research found that many victim/survivors experienced further abusive experiences inthe family courts because of the inconsistent and minimal provision of ‘special measures’to avoid them coming into contact with perpetrators (Section 8.2). 1 Although specialmeasures have been available for vulnerable and intimidated witnesses in criminalproceedings since 2000, there are no equivalent legislative provisions for specialmeasures in family proceedings. In response to concerns raised by the judiciary (Corbettand Summerfield, 2017), both PD12J and the Family Procedure Rules 2010 wereamended to give the judiciary greater powers to direct the provision of special measures.The limited evidence of the effectiveness of these new provisions indicates that specialmeasures in the family courts are still not satisfactory or on a par with those available inthe criminal courts (Section 8.2). Additionally, victim/survivors of domestic abuse can besubjected to direct cross-examination by alleged perpetrators of abuse due to the absenceof effective measures to prevent this (Corbett and Summerfield, 2017). Qualitative studiesrevealed that victim/survivors of domestic abuse found the experience of being crossexamined by their alleged abuser traumatising, degrading and a continuation of the abuse(Section 9.3).1Special measures include separate waiting rooms for victims and witnesses; separate entrances andexits; giving evidence through video link from a room outside the courtroom or behind a screen positionedaround the witness box.6

Domestic abuse and private law children casesA literature reviewNumerous research studies undertaken in England and Wales and in other jurisdictionshave revealed how perpetrators of domestic abuse may use continuous and protractedlitigation as part of an ongoing pattern of control and harassment, which many womenfound as bad as, or worse than the abuse itself (see Section 11). Courts can restrict theability of litigants to continue litigation by making orders under Section 91(14) CA 1989 toprohibit applications being made without the permission of the court. No empirical researchwas found on the operation of Section 91(14). However, qualitative studies pointed to thefact that perpetrators’ use of proceedings as a tactic of post-separation abuse were notfully understood by courts and professionals and perpetrators were rarely, if ever,identified as vexatious litigants (Section 11).A limited number of qualitative studies found that children and young people wantinformation, communication and consultation, believe strongly in their right to be heard andfor their views to be taken seriously, but may not want sole decision-making authority todecide post-separation arrangements (Section 7.5). Cashmore’s (2011) Australian studyfound that children exposed to violence, abuse or high levels of parental conflict feltstrongly about having a greater say in contact arrangements.1.5The operation of Practice Direction 12JThe Court of Appeal in the landmark case of Re L, V, M, H (Contact: Domestic Violence)[2001] Fam 2

children and parents involved in private law children cases of domestic abuse and other serious offences. It also aimed to review the literature on how these risks are managed by the family courts in England and Wales. The scope of this literature review, the specific topics for consideration and the methodology were formulated in consultation with the academic members of the panel of experts .

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