Identifying and defining harm

The family court process is shaped towards settlement and parties are encouraged to resolve their disputes through alternative means. When it comes to matters involving children, section 1 of the Children Act 1989 provides that the court will not make an order “unless it considers that doing so would be better for the child than making no order at all” – the “no order” principle. This means that where parents are able to come to an agreement between themselves, the court will not make an order simply to rubber stamp the arrangements. However, with the cuts to legal aid and the rise of the litigant in person, the courts are finding that more cases involving children result in proceedings. In some situations, it may be necessary to go to court.

WHAT IS A FACT FINDING HEARING?

Where there have been allegations of domestic abuse and harm, the court must determine whether it is necessary to conduct a fact finding hearing before any child arrangements order can be made.

The court’s focus in these instances is twofold:

—— First, have the alleged instances of harm taken place? and

—— Second, what effect does this have on the children and the proposed arrangements? On 2 October 2017, the revised Practice Direction 12J of the Family Procedure Rules 2010 came into force. It sets out what a court is obliged to consider and the steps a court must take where there have been allegations of domestic abuse and what a court must do once findings of domestic abuse have been made. The introduction of PD12J was hailed as a victory in its recognition of how domestic abuse between the parents can affect children.

IS THE CONCEPT OF “HARM” OBJECTIVE?

When one begins children proceedings, there is an opportunity to file a supplemental form called a C1A which lists allegations of harm. The purpose of this form is not for one parent to vent their frustrations regarding the other’s parenting style but to raise any serious concerns which affect the safety of a child. As we find ourselves in a system where there are increasing numbers of litigants in person without the benefit of legal advice, it seems that more of these forms are being filled out without full appreciation of the consequences. I often have a conversation with my clients about the difference between “bad” parenting and “harmful parenting”, and it occurs to me in these conversations that the concept of harm is not objective. Physical violence is clearly objectively harmful but other examples are more nuanced. For instance, an observant Jewish or Muslim parent might be deeply aggrieved if the other parent is feeding their child non-kosher or non-halal meet, and to them it is harmful to the child’s upbringing. Parents simply do not always parent as a united front, and of course it is confusing for children to have completely different rules in one household to another. But this is not the harm that the court is interested in or able to deal with.

“HARM” ACCORDING TO THE COURT

In recent years, both the family court and the criminal court have come on leaps and bounds in the recognition of non-physical violence and coercive control as forms of domestic abuse. In theory at least, this means we should be treating these allegations of harm, where they are non-violent, as seriously as allegations of physical harm. Prior to this change in attitude and legislation, the court tended to look at harm as physical violence. We do not only examine the physical violence specifically towards the children, but also between parents and witnessing this can clearly have detrimental effects on children. There are several practical issues however. Incidents of physical violence are conceptually binary. Either a violent act has been committed or it has not. Due to this, it is far easier to prove or disprove physical abuse than it is to demonstrate a pattern of coercion and control, which requires a far more nuanced understanding. When we are trying to establish nonphysical abuse, such as coercive control, the questions are:

—— Did this happen;

—— did this happen the way the alleged victim is portraying? And;

—— what was the effect on the alleged victim?

LOOKING AT THE EVIDENCE

A change in legislation does not necessarily translate to an immediate change in judicial opinions. Judges themselves are human with human biases. They must examine all the evidence put before them, but if we accept the concept of harm is subjective, we can accept that it is both subjective to the individual who has experienced it, and the judge who is assessing it. As a society we are recording our activity more frequently. This can be both helpful and harmful in the courtroom. On one hand, we have a wealth of evidence by way of text and Whatsapp message chains. On the other hand, these messages without context do not always portray the full range of what happened at the time. For example, a Whatsapp conversation may be used to demonstrate the aftermath of an abusive incident. By this point, the victim of the incident may be angry and using text as a medium to express their frustration. When the texts are examined perhaps years later and without the same context, this can be interpreted as a “push and pull” dynamic. The judge can clearly identify the toxicity in the relationship, but the culpability of one party over the other, with the evidence provided is far more difficult to determine.

ARE WE PUNISHING OUR VICTIMS FOR APPEARING “STRONG”?

By the time the victim of abuse has entered the courtroom, he or she has had the benefit of time to reflect. By this point the abusive relationship may well have ended, and this person feels emancipated from the control of their abuser. The judge will look for distress in the victim as a way to determine the extent of harm. This can be less obvious where a victim has developed coping mechanisms to deal with harm. It is very usual for former victims of domestic abuse to set strict boundaries with their abusive parent as a coping mechanism. Some judges will recognise this as a coping mechanism, but others may need some further persuasion that this rigidity is part of the coping mechanism, and not part of a push and pull dynamic.

FACT-FINDING AND THE OVERALL OUTCOME OF THE CASE

In children proceedings, even if there has been findings of fact made of domestic abuse against the parents, the focus of the court in Children Act cases is on the welfare of the children. It is accepted that children witnessing domestic abuse between parents is damaging, but if a court considers that the risk of harm has dissipated since the separation, the victim of abuse may feel disappointed when he or she finds the other parent is still awarded what they feel is a problematic amount of contact with the child. When conducting fact findings we need to constantly focus and refocus on how the harm we are trying to prove affects the children in the case on an ongoing basis. If there is a pattern of behaviour, has this pattern continued since the separation? There is a danger when we focus on historic wrongs that we do not look forward to what this means to the welfare and safety of the children in the present and future. Although a fact finding might vindicate the victim of abuse, that he or she has been finally believed – ultimately, this is not the purpose. The purpose is to use these facts to establish the ongoing risks of harm to the children.