“A pattern of coercive controlling behaviour has been reported which is likely to be ongoing via the current arrangement. This is disputed by [the father]. A fact-finding hearing is needed to establish a baseline of fact. However, alongside this, assessment does indicate D is being caught up in these behaviours and her extreme distress at handover may be indicative of the level of distress she is experiencing. If reports by [the mother] are true it is likely D’s relationship with her mother is being used as a means of ongoing abuse which will inevitably be harmful to D, even if there is limited evidence of this at this stage. Consideration needs to be given to whether D is safe in the current arrangement and if this arrangement is best for her pending a fact finding hearing and further information or whether a variation of the current arrangement needs to be considered.”
“The parties have each raised allegations against each other, the mother’s allegations suggest a pattern of coercive controlling behaviour which has a sexual element as well. A consideration is the impact in the long term of the mother’s ability to feel she has a voice in contact arrangement[s], there is a concern that the mother reports that D is showing signs of distress when she has returned to father.”
“(1) When a court determines any question with respect to— (a) the upbringing of a child; … the child’s welfare shall be the court’s paramount consideration. (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. … (3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to— (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question. (4) The circumstances are that— (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings ….” (a) the upbringing of a child; (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question. (a) the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings ….”
“(1) In respect of family proceedings in which the welfare of children … is or may be in question, it is a function of the Service to— (a) safeguard and promote the welfare of the children, (b) give advice to any court about any application made to it in such proceedings, (c) make provision for the children to be represented in such proceedings, (d) provide information, advice and other support for the children and their families.” (b) give advice to any court about any application made to it in such proceedings, (c) make provision for the children to be represented in such proceedings, (d) provide information, advice and other support for the children and their families.”
“The CAP is designed to assist families to reach safe and child-focused agreements for their child, where possible out of the court setting. If parents / families are unable to reach agreement, and a court application is made, the CAP encourages swift resolution of the dispute through the court.”
“Continuity of judicial involvement in the conduct of proceedings from the FHDRA to the making of a final order should be the objective in all cases.”
“Where an application is made for a child arrangements order (but not necessarily for specific issue or prohibited steps orders), before the FHDRA (see paragraph 14 below) Cafcass … shall identify any safety issues by the steps outlined below.”
“(a) What, if any, issues are agreed and what are the key issues to be determined?” and “(b) Should the matter be listed for a fact-finding hearing?”
“Domestic abuse is harmful to children, and/or puts children at risk of harm, including where they are victims of domestic abuse for example by witnessing one of their parents being violent or abusive to the other parent, or living in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with and being victims of domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.”
“In all cases it is for the court to decide whether a child arrangements order accords withSection 1(1) of the Children Act 1989 ; any proposed child arrangements order, whether to be made by agreement between the parties or otherwise must be carefully scrutinised by the court accordingly….”
“The court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.”
“The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse – (a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below; (b) in order to provide a basis for an accurate assessment of risk; (c) before it can consider any final welfare-based order(s) in relation to child arrangements; or (d) before it considers the need for a domestic abuse intervention.” (a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below; (b) in order to provide a basis for an accurate assessment of risk; (c) before it can consider any final welfare-based order(s) in relation to child arrangements; or (d) before it considers the need for a domestic abuse intervention.”
“21. (1) Subject to sub-paragraph (3), sub-paragraph (2) applies in any case where- (a) a child being a victim of domestic abuse; or (b) a risk of harm to a child resulting from domestic abuse, is raised as an issue. (2) In such a case, the court should consider directing that a report on the question of contact, or any other matters relating to the welfare of the child, including matters relating to whether a section 91(14) order would be appropriate (seePractice Direction 12Q ) be prepared undersection 7 of the Children Act 1989 by an Officer of Cafcass or a Welsh family proceedings officer (or local authority officer if appropriate). (3) Sub-paragraph (2) does not apply where the court is satisfied that it is not necessary to order the preparation of such a report in order to safeguard the child’s interests. 22. If the court directs that there shall be a fact-finding hearing on the issue of domestic abuse, the court will not usually request a section 7 report until after that hearing…. 23. Any request for a section 7 report should set out clearly the matters the court considers need to be addressed.”
“The court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child’s parents and any other relevant person. The court must record its findings in writing in a Schedule to the relevant order, and the court office must serve a copy of this order on the parties. A copy of any record of findings of fact or of admissions must be sent by the court office to any officer preparing a report under Section 7 of the 1989 Act.”
“In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.”
“(2) It is the duty of the officer to— (a) comply with any request for a report under this rule; and (b) provide the court with such other assistance as it may require. … (4) The officer, when carrying out duties in relation to proceedings under the 1989 Act, must have regard to the principle set out in section 1(2) and the matters set out in section 1(3)(a) to (f) of that Act as if for the word “court” in that section there were substituted the words “children and family reporter” or “welfare officer” as the case may be….”
“(i) The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J .5). (ii) In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J .16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children. (iii) Careful consideration must be given toPD12J .17 as to whether it is 'necessary' to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved. (iv) UnderPD12J .17(h) the court has to consider whether a separate fact-finding hearing is 'necessary and proportionate'. The court and the parties should have in mind as part of its analysis both the overriding objective and the President's Guidance in ‘the Road Ahead’.”
“A decision to hold a fact-finding hearing is a major judicial determination within the course of family proceedings. The process will inevitably introduce delay and postpone anything other than an interim determination of issues relating to the child's welfare, which is contrary to the statutorily identified general principle that any delay in resolving issues is likely to be prejudicial to a child's welfare (section 1(2) of the CA 1989). Further, the litigation of factual issues between parents is likely to be adversarial and, whatever the outcome, to have a negative impact on their ongoing relationship and ability to cooperate with each other as parents. It is therefore important for the court, in every case where fact-finding is being considered, to take time to identify the welfare issues, to understand the nature of the allegations, and then to consider whether the facts alleged are relevant to those issues and whether it is, therefore, necessary for the factual dispute to be determined.”
“First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead, [in Re H (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563 at p 585F).”
"[Counsel's] point was that if there is a real possibility of harm in the past, then it must follow (if nothing is done) that there is a risk of harm in the future. To our minds, however, this proposition contains a non sequitur. The fact that there might have been harm in the past does not establish the risk of harm in the future. The very highest it can be put is that what might possibly have happened in the past means that there may possibly be a risk of the same thing happening in the future. Section 1(3)(e), however, does not deal with what might possibly have happened or what future risk there may possibly be. It speaks in terms of what has happened or what is at risk of happening. Thus, what the court must do (when the matter is in issue) is to decide whether the evidence establishes the harm or the risk of harm. We cannot see any justification for the suggestion that the standard of proof in performing this task should be less than the preponderance of probabilities. Were such a suggestion to be adopted, it would mean in effect that instead of acting on what was established as probably the case, the court would have to act on what was only possibly the case, or even on the basis of what was probably not the case."
“To prioritise the safety and well being of the child at the centre of proceedings; To promote the best interests of the child and offer a safe recommendation to the court; To work in a trauma focussed, respectful and responsive manner; To assess the impact on the child of their lived experience of domestic abuse and to look for strengths in the family and community to promote safety.”
“Throughout this document we have used the words ‘victim’ and ‘perpetrator’. Some agencies might also talk about ‘survivors’, ‘the abusing parent’, or ‘the protective parent’. These are all legitimate uses of language where there are findings, admissions or other evidence of known abuse. We must use our language more cautiously, however, if the facts are disputed between the parties and have not yet been determined by the court. In these circumstances it is appropriate to preface the descriptors ‘victim’ or ‘perpetrator’ with ‘reported’, ‘alleged’ or ‘presenting’. We should sensitively explain to parents why we are writing in this way, and be clear that it is not our intention to diminish or undermine their experiences.”
“The underpinning aim of risk assessment is to understand the issues which could cause harm and provide reasoned evidence to make safe decisions. Domestic abuse risk assessment is bespoke to each individual family and child, but should always follow the same structured process which is transparent to families and to the court. It is therefore important to have the consistency of a strong practice model which is used across the organisation, as a foundation for skilled professional judgement. The Domestic Abuse Practice Pathway, which is now embedded across Cafcass practice, has been refreshed whilst remaining familiar to practitioners. Cafcass has identified five stages for the risk assessment of domestic abuse, which are set out below. Each stage corresponds to good practice points within the Domestic Abuse Practice Pathway which guide the practitioner in a systematic approach to assessment.”
“1. To identify the nature, severity/ impact and duration of the abuse which the child has experienced. 2. To identify with whom the child feels and is, emotionally, physically and psychologically safe. 3. To assess the harm and impact of the domestic abuse on each individual child using a risk and strengths based approach. 4. To assess the likelihood of continued harm from domestic abuse and the seriousness and impact if this were to happen. 5. To provide the court with a clear, evidence-based and well-reasoned onward recommendation in accordance with the child’s best interests.”
“The assessment stages reflect the importance of the lived experiences of each family member and on the holistic wellbeing of the child, both now and in the future.”
“How has the abuse been perpetrated? Was this physical, psychological, emotional? Has there been coercive and controlling behaviour present? Have there been injuries or medical attention required? Is there a history of abuse in previous relationships? Who is the primary perpetrator? What is the power dynamic regarding evidence of specific typology? What has the child or young person experienced in their family environment?”
“Explore how the child has coped in the home, do they use safety strategies? For example does the child align with the abusive parent to keep safe, or protect the non abusive parent?”
“Using your evidence base, assess the risk of harm to the child in the context of the application, applying professional judgement. Assess the impact of the abuse alongside the likelihood for the harm to continue with spending time arrangements in place and how serious and impactful this would be. What specifically is the predicted risk for each child and for the victim[?] Is unsupervised in-person time spent together safe?”
“Cafcass respects the authority of the court, it is our role to carry out work as directed during proceedings. Sometimes the court will depart from our recommendations. Providing the court is in receipt of all relevant evidence and sets out its reasons for departing from our recommendations this is a legitimate divergence and one which Cafcass must accept and work with. There may however be occasions where the work the court directs us to do, brings us into conflict with our wider social work values and professional standards – namely where we are asked to progress, observe, endorse, or report on arrangements that we have assessed as being potentially unsafe - or where the court has made findings that the child has not experienced domestic abuse, when our direct work with the child indicates that they have.”
“This practice aid should be used where the Safe Lives DASH has identified elements of coercive and/or controlling behaviour in the relationship in order to assess this dynamic more fully in the context of the application.”
“I asked D if her parents got on together and she said, “they can be grumpy,” and that her dad is the worse of the two, which, “makes me feel sad and it makes me feel a little bit scared.”
“To give this assessment structure, I will write to the headings in the Cafcass Domestic Abuse Framework.”
“It is difficult to see any compatibility between the parental narratives. Of the two, I find [the mother’s] the more compelling. Given the strength of emotion, the level of hurt felt and the gap between the parental accounts I am concerned about the potential for continued Domestic Abuse between the parties, and therefore the continued potential for D to experience harm.”
“Whether or not [the mother] had affairs, [the father] believed and continues to believe she did. This lies behind the emotional abuse and control he reports he suffered in the relationship. His emotions were powerful and destructive to himself, and to [the mother]. Indeed, ultimately, whether intentionally or not, these emotions impacted on her in an abusive and harmful way and were the most likely cause for her seeking to leave the parental relationship.”
“regrettably, these powerful emotions continue to impact on the family dynamics …. For me the clearest indication of this lies in D’s own words, when talking about her experience of handovers she said, “it makes me feel a little bit wobbly inside. She is also aware that her mother shares these emotions. This would explain why she can be open and honest with her mother about how she feels, and why [the mother] reports D is tearful and distressed when returning to her father’s home. Once home with her father, I accept that D will both enjoy her time with him and feel safe in many ways, but not safe enough to express to him how she really feels about her mother. Most likely this will be in part due to what she currently experiences during handovers, and because in all likelihood she has witnessed her mother’s suffering when they all lived together as a family. For D, this situation is far from ideal, indeed it has the potential to be emotionally abusive, and will be so, if it is allowed to persist. When I consider D’s wish to spend time with both her parents I am not convinced the current arrangements are in her best interests. Nor do I consider a formal shared-care arrangement safe.”
“she said my recommendations about her living arrangements were good, she gave them the thumbs up and scored them 10 out of 10 and ran over to give her mother a big hug.”
“Counsel: Do you think there is any relevance of the location where D has lived her entire life & the school D has attended the whole of her schooling career Officer: Relevant to what? Counsel: D’s arrangements. Are you saying it is reasonable for M to say she doesn’t want to live in the local area anymore, move to [X] where she doesn’t have accommodation, to take D with her Officer: [Mother] moved for reasons she reports as abuse and it would be natural for her as a mother to want to take her child with her. I support her contentions that she was being exposed to domestic abuse and as such her desire to want to relocate and take her child with her would be perfectly normal.”
“Counsel: You have said ‘[Mother] was subject to a degree of domestic abuse. Officer: Yes Counsel: I’m sure you’re aware DDJ Taghdissian said there was no need for a fact find, each parent would spend unsupervised time with D including weeks at a time. Surely you’re aware the court will hold a finding of fact where veracity of allegations would have an impact on child arrangements. Officer: Yes Counsel: Presumably you accept the court decided the veracity of the allegations were not relevant to D’s arrangement? Officer: Not sure I would read it that way. My view looking at parental experiences & what D would like, the assessment I have done my view is that [mother]s experience is important in thinking about what is best for her child and how the arrangement came about & I do feel that [the mother] is more of the two sustainable arrangements for D with her father. I am concerned that [the father] does not hold the degree of respect for [the mother]. I concur with the view from my interview with him, that he continues to see her as a bad person which will be emotionally damaging to D. Counsel: So is it fair to say that you have made [your recommendations] on the basis that some degree of domestic abuse has been perpetrated by [the father] to [the mother]? Officer: That is part of my argument. I agree that still remains & why I do not suggest shared care arrangements as there has to be an equity of respect. I do not believe [the father] has moved forward from seeing [the mother] in a bad way.”
“Mother found engage with Father painful, and controlling and abusive. That is her reporting it. Difference between that and the court finding a fact but that is her feeling of it.”
“My assessment that [the father’s] care to [the mother] was not appropriate when they were together and that will have affected D and should D remain in F’s care that that risk of harm will continue”
“There is report of her lived experience & that is powerful enough for me to taking into consideration why she felt like that. If finding of fact is needed, which I don’t think it is, it will be for the court to determine, I simply report on what she has told me.”
“Officer: There were reports. I treat the lived experience of a potential victim seriously. So I have used the framework as a place where we need to start. Counsel: You said to father when you met him, you accepted as true what was said to you by mother. Officer: I can’t recall. I generally accept what most people tell me is their truth Counsel: On that basis, if mother is telling you she is a victim of domestic abuse, that is the basis for your risk analysis isn’t it? Officer: I will take it into account as her lived experience and potentially the child’s experience.”
“The issue of whether he has overstepped the mark in terms of his conclusions about who did what in the relationship, why it broke down and domestic abuse generally is a subtle and nuanced one. Mr Swann [the mother’s counsel] acknowledged that in paragraph 66 of the report [the Cafcass officer] did overstep the mark by using the terminology he did - that of the two narratives he found the mother’s the more compelling. I agree that that choice of words was unwise. However, he is entitled to gain an insight and form an impression of the family dynamics and indeed he did so by utilising the Cafcass coercive control practice aid with both parents…. [The Cafcass officer’s] clear emphasis in his oral evidence was that he understood it is for the court to make factual findings but that nevertheless the perception of what has gone on in the minds of the mother and the father is a matter which is appropriate and necessary to take into account, and which has to be factored into his assessment and recommendations. He was clear that the mother’s perception was that she was powerless from the moment she chose to leave the family home and that everything that was done thereafter in respect of D was on the father’s terms.”
“He is entitled to form those views and, indeed, such analysis is part of the function of a social worker writing a section 7 report notwithstanding that these are not factual findings. It is only by addressing those sort of issues that sensible and well-reasoned recommendations can be made.”
“whilst in this case there are indicators that D has a good relationship with her father and that she feels safe with him, there are also some indicators that she feels more able to be open and communicative with her mother about anything troubling her.”
“He referred to a very strong and intense emotional reaction by the father to the breakdown of the relationship and that this is an ongoing issue in terms of his insight into how this is impacting others and his ability to meet Ds emotional needs. I accept Mr Swan’s submission that Father has struggled to move on. That underpins [the Cafcass officer’s] analysis that the mother is likely to be better able to promote D’s relationship with Father if she is living with Mother than Father will be able to do if it is the other way around.”
“9. In summary, therefore, in my view the section 7 report taken as a whole is an informative and weighty piece of evidence from a highly experienced social worker who has undertaken a thorough investigation and analysis of the family dynamics. His approach of putting the parenting issue at the centre is a perfectly sensible one and his conclusion that the current arrangements are not in D’s best interests is a valid reason to depart from the status quo. He repeatedly said in evidence that D is a sociable and resilient child and she will cope readily with the changes involved in going to live with her mother and in changing schools. 10. D’s own wishes and feeling are not entirely clear because she does not fully appreciate that spending more time with one parent means less time with the other and those wishes and feelings are not a particularly significant weighty factor in the court’s decision. So in terms of the order, it is a lives with Mum order.”
“Judges are entitled (and indeed required) to analyse the information before them, and are not required to accept wholesale what is put before them. The decision would only be wrong if the errors were imported into the judge’s reasoning, which they are not.”
“I am satisfied that DDJ Loughridge did properly disregard [the Cafcass officer’s] own opinion about the victim/perpetrator dynamic in the relationship but properly took into account the risk that his impression of the father was well founded.”
“41. The absence of consideration of this aspect of the welfare checklist is a significant gap. I am unclear how this failed to make its way into [the Cafcass officer’s] final report, particularly in light of the specific direction setting out the need to consider the impact on D of change, and in light of the change of primary carer, home, school and surroundings being the most significant change for her if there is to be a transfer of residence. 42. That said, it was clearly explored with [the officer] in evidence, and DDJ Loughridge noted in his judgment that “[he] repeatedly said in evidence that D is a sociable and resilient child and she will cope readily with the changes involved in going to live with her mother and in changing schools.” 43. The purpose of oral evidence is for further information to be obtained to assist the court in making the correct decisions for a child’s welfare. If the absence of this analysis in the s7 report had been an omission so material as to be incapable of resolution in evidence it is very surprising that this point was not raised at the DRA and an addendum directed. DDJ Loughridge has accepted the evidence of the section 7 reporter (which I do not have) about the impact of change on D. I agree that more detail in the judgment may have assisted the father in understanding what had been taken into account, but I repeat that this ex tempore judgment has, in several areas, summarised conclusions briefly, and in this case it appears that all of the potential changes are contained within DDJ Loughridge’s description of “the changes involved in going to live with her mother and in changing schools”
“Where there has been no fact finding ordered but domestic abuse concerns indicate that assessment cannot proceed without establishing facts, the practitioner should alert the court prior to filing a section 7 [report].”