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Contact at all costs? Domestic violence and children's welfare [2014] CFLQ 439

Date:4 JUN 2015
Keywords: Domestic violence - welfare of the child - child contact - presumption of parental involvement - Practice Direction 12J - child arrangements orders

Despite the prevalence of domestic violence in private law Children Act proceedings, courts rarely refuse applications for contact between children and non-resident parents. This article considers why this is the case by focusing on judicial and professional perceptions of domestic violence and of children's welfare on parental separation, and how these perceptions inform judicial decision-making and professional practice. It also considers what the implications are of the presumption of parental involvement for child arrangements proceedings where allegations of domestic violence are made. In doing so, this article draws on the author's small-scale qualitative study of the perceptions and practices of courts and professionals in contact proceedings where domestic violence is an issue. It was found that most professionals and judicial officers support the de facto presumption of contact and rarely question the parenting capacity of domestic violence perpetrators. Together with dominant images of 'safe family men' and 'implacably hostile mothers', this has a powerful effect on the way in which domestic violence is seen as relevant to contact. Despite more judges and professionals gaining a broader understanding of the coercively controlling nature of domestic violence, only recent, very severe physical violence provides sufficient 'cogent' reasons for family lawyers to support mothers in opposing contact and for courts to refuse contact. Victims of domestic violence are likely to be encouraged or pressurised into agreeing to some form of direct contact by the court and by their own representatives other than in very extreme circumstances. The new presumption of parental involvement may reinforce the perception that seeking to restrict parental involvement is unacceptable and undercut the aims and operation of the recently revised Practice Direction 12J. It may also provide a powerful tool to compel resident parents to agree to parental involvement as a way of managing the difficulties posed by the large increase in litigants in person. Within the discursive context of current family law, the burden of disproving the presumption may be almost impossible to fulfil. The article concludes that in order to overcome the 'contact at all costs' approach, we need to recognise that there are other ways of constructing children's welfare, and acknowledge properly that domestic violence is a significant failure in parenting.