In court proceedings where parents cannot agree residence and contact arrangements for their children, it is not uncommon for one parent to allege domestic abuse against the other, using this as justification for why that parent should not have contact with the child.
An extremely sensitive and emotional issue for anyone to have to deal with, here I will shed some light as to how the court will approach any such allegations.
Firstly, it’s important to note that the legal burden of proof rests with the accuser.
While in criminal courts the standard of proof is to be sure of the accused’s gulit (formaly known as “beyond reasonable doubt”) the civil standard is ‘the balance of probabilities’, often referred to as “more likely than not”. The standard being approximately 51% and therefore a lower standard of proof than is required in the criminal courts.
The court will decide if the domestic abuse allegations are fundamental to the court case. If they are, the court will need to hear evidence from both parents and possibly other witnesses, assess any corroborative evidence from the police, GP, school etc. and will make a judgement called “Findings of Fact”. This judgement is very significant and can have a major impact on any parent who is found to have been a perpetrator of domestic abuse, but also against any parent who is found to have fabricated allegations of domestic abuse.
It is important to understand what domestic abuse/domestic violence amounts to before deciding whether the allegations have been proved.
Wikipedia’s definition of domestic violence is:
“Domestic Violence also known as Domestic Abuse, Spousal Abuse, Battering, Family Violence and Intimate Partner Violence, is defined as a pattern of abusive behaviours by one partner against the other in an intimate relationship such as marriage. Domestic Violence, so defined, has many forms including physical aggression or assault (hitting, kicking, biting, shoving, restraining, slapping, throwing objects) or threats thereof, sexual abuse, emotional abuse, controlling or domineering, intimidation, stalking, passive/covert abuse (e.g. neglect) and economic deprivation. Domestic Violence is not limited to obvious physical violence”.
Influential research from two leading psychologists, Sturge and Glaser, tells the courts that “Domestic Violence involves a significant failure in parenting”. Although the starting point for the court will be that every child should be entitled to have a relationship with both parents, the balance can be tipped against contact where domestic violence is proved, and without the perpetrator taking responsibility for the abusive behaviour and the impact that behaviour has had on the child. It is now generally accepted that if there has been domestic abuse in the home, the children will have been negatively affected.
The Family Justice Council have commented that a cultural change is required. Moving away from the assumption that contact is always the appropriate way forward, to the premise that contact that is safe and positive for the child is always the appropriate way forward.
Bolby in 1951 explained “children are not slates from which the past can be rubbed by a duster or a sponge, but human beings who carry their previous experiences with them and whose behaviour in the present is profoundly affected by what has gone on before”.
Indeed a wide range of research has found that witnessing violence to their mothers can have a detrimental affect on children, can amount to emotional abuse or psychological mal-treatment. (Saunders, Epstein, Keep and Debbonaire 1995, Abrahams 1994 etc). Research undertaken by Kelly in 1996 explained that in some instances the intention of the abuser is that the violence or abuse of a child will have a directly abusive affect on the woman. This is explained as “a double level of intentionality”.
Women’s Aid states that most domestic violence includes emotional abuse which can include such tactics as:
- Destructive criticism, name calling, sulking
- Pressure tactics
- Lying to you or to your friend’s and family about you
- Persistently putting you down in front of other people
- Never listening or responding when you talk
- Isolating you from friends and family, monitoring your phone calls, emails, texts and letters
- Checking up on you, following you, not letting you go out alone
The impact of emotional abuse may be even more devastating than physical assault and have much longer term effects. The courts are now accepting these much wider definitions of domestic abuse when dealing with contested court hearings.
Allegations of domestic abuse are therefore taken very seriously by the courts. The courts are guided that any such allegations should be dealt with as quickly as possible by way of focussed court hearings to enable the court to decide what contact is appropriate in both the interim and longer term for the child/ren and their parent. The courts are also well aware that some parents make unjustified allegations of domestic abuse in an attempt to exclude a parent from a child’s life. It is considered that this too can cause emotional harm to the child/children and is a strategy that may result in that parent loosing the care of the child/children.
This is therefore a complicated issue and legal advice should be sought so that parents are clear how the court may deal with any cases where such allegations are made.