UK Family Law Reform

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----- Original Message -----
To: dave.mortimer
Sent: Thursday, October 13, 2005 11:45 AM
Subject: Treat Official - Answer

Dear Mr Mortimer


Your e-mail of 20 September 2005, addressed to Baroness Ashton, has been passed to me for reply since our division has policy responsibility for the family courts and in particular, domestic violence.

In your e-mail you refer to a piece of ‘peer reviewed research’. If you mean the Children Act Sub-Committee (CASC) Report ‘Making Contact Work’ please let me know so that I can send a copy to you. If this is not the report, if you could provide more details I will try to locate the item you want.

You have raised concerns about the enforcement of contact orders. As you rightly point out, when orders are made, the Children Act 1989 requires the court at all times to make the welfare of the child concerned its paramount consideration. Furthermore, where contact has been agreed or ordered by the courts, it is essential that it is adhered to. If at the end of a long and difficult dispute, the contact ordered by the courts does not take place, the child is not benefiting from what the courts has decided will promote their welfare.

You may already be aware that the Children and Adoption Bill was introduced to Parliament on 13 June 2005. Through this Bill, legislation will be introduced to give the judges additional powers to facilitate contact and enforce contact and orders. For instance, in addition to the current system of fines and imprisonment, they will be able to refer parents to a counsellor or a parenting programme or make enforcement orders imposing requirements for unpaid work. Judges will also be able to award financial, compensation for example where the cost of a holiday has been lost. These additional levers will be available to the courts in any contact case, if the court considers they would assist resolution.

If you are dissatisfied with arrangements under an existing court order, you may, according to the circumstances, apply to the court for the order to be varied, revoked, or enforced. You may wish to seek legal advice on this option, a solicitor, local Law Centre or the Citizens Advice Bureau can advise you.

You have also asked why the civil burden of proof is applied to domestic violence in the family courts. You also refer to domestic violence as a crime. Firstly, there is no actual crime of domestic violence. In the criminal courts, domestic violence is dealt with depending on the charge being made, assault or grievious bodily harm for example. The criminal burden of proof of ‘beyond reasonable doubt’ is applied. Domestic violences cases are dealt with in the family courts because the applicant has chosen to apply for a civil injunction (a non-molestation or occupation order). The burden of proof applied is ‘the balance of probability’. The respondent to the family case, to take your example, the father, has the opportunity to respond to the applicant’s allegations of domestic violence at the full hearing. The court will consider all the issues presented and make a decision on the balance of probability.

If the application began as a child contact or residence application using the new ‘gateway’ forms, parents who apply for court orders, or who respond to court applications made by the other parent are now able to set out concerns about domestic abuse at the outset of proceedings. Courts are now required to consider whether any incidents of domestic violence - not just from direct violence but also from witnessing violence toward another – has had an adverse impact on the child, or might affect the child in the future. Any harm to the child as a result of the violence must be taken into consideration in the decision on contact, and what kind of arrangements should be put in place to ensure that it is safe. With the introduction of the new forms, Judges are now made aware at the earliest opportunity of any history of alleged domestic violence or abuse that may be relevant to the contact decisions to be made about the child. The judge will then consider whether to make a ‘finding of fact’ decision at the start of the case on the basis of information provided by both parents, and will take its outcome into consideration when deciding what – if any – contact arrangements would be in the best interests of the child.

Bola Aggrey-Finn

Domestic Violence Team

-----Original Message-----
From: dave.mortimer
Sent: 14 September 2005 14:50
Subject: How can it reasonably be in a child's best interest not to check?

Baroness Ashton of Upholland
Selborne House
54 Victoria Street
London SW1E 6QW, United Kingdom
Telephone: +44-(0)20-7210 8614

14th September 2005

How can it reasonably be in a child's best interest not to check?

Dear Baroness Ashton,

Please can you kindly tell me in your reply exactly where I can obtain copies of the peer reviewed research which proves that sole residency is in the best interests of children after separation or divorce. I would also like to know if you actually believe that a judge can be acting in the best interests of a child to make a contact order but then refuse to enforce it and how that actually teaches children to respect the law. Please can you also explain to me why domestic violence cases are being decided in the family courts on a balance of probability given that domestic violence is a criminal offence and how it is actually possible for a father to defend himself from false allegations of abuse if the judges claim it is not in the best interests of the child to question what it's mother says because that would undermine her authority as the primary care giver and how any decision can ever be reasonably considered safe or in the best interests of the child if they do not check.

Best regards
David Mortimer

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