Major changes announced to protect children from domestic abuse
The government has announced it intends to change the law so that the Family Court will no longer presume that it is in a child's best interests to have involvement of both parents in their life.
What is the current law?
When parents ask the court to decide on what the arrangements for their children should be, the law that applies is the Children Act 1989. This law contains a presumption that the involvement of both parents in the life of the child will further their welfare, even in cases where allegations of domestic abuse have been made.
Why is there going to be a change?
For many years there have been growing concerns that this presumption has increased the risk of children being harmed by domestic abuse. Campaigners to repeal this presumption as a starting point have said that the Family Courts have been promoting a "pro-contact culture" and prioritising parental contact over child safety.
One of the key voices of the campaign is Claire Throssell MBE, whose sons were killed by her former partner. The family court had heard Claire's allegations regarding domestic abuse and her concerns about her sons safety, yet ordered the boys to have direct contact with their father.
What will change?
The government has announced that they will repeal this presumption and instead focus on the principle that a child's welfare and protection from harm must come first.
In most cases, this shift in the law will not have significant impact as in many cases the courts will still decide that the child will benefit from the involvement of both parents. However, it will no longer be the starting point of the court to assume that both parent's involvement is best. The sole focus will be on the child's welfare.
The change will also bring the law in line with the important guidance from the Family Courts that children are victims of abuse when they are living with domestic abuse in their home, regardless of whether they have directly witnessed it or not (Practice Direction PD12J).
What next?
This shift to a child-centred approach will be a very welcome change for all victims of domestic abuse. We anticipate this may have significant changes in the way family law cases are conducted, as victims may begin to feel more confident in their allegations being heard by the Family Court. In turn this could give rise to more fact finding hearings where allegations of domestic abuse are tested through the Family Courts.
The government announcement is vague on timing, stating the change will take place "when parliamentary time allows". We will be keeping a close eye on when this change will come into effect. Until then, the current presumption still stands.