Best Interests of Children ‘The Overriding Principle’ of the Family Courts

Emily Ranson For Avadis & Co. Solicitors


National domestic abuse charity Women’s Aid has launched a new campaign; ‘Child First’; endeavouring to ensure that survivors of domestic abuse and their children are better protected in the Family Courts. When parents have separated and a dispute arises over who should care for a child – or whether a parent should be allowed contact with the child, it is sometimes necessary to apply to the court for a Child Arrangement Order. In their highly emotive report ‘Nineteen Child Homicides’, the charity identifies nineteen children from twelve families who have been killed at the hands of a parent. In seven of the twelve families, the court had ordered the contact with their killer.

The report identifies two areas for reform; first, they urge the family courts to place considerable weight on the occurrence of domestic violence within a relationship, and the possible ramifications of this violence on children in the future. As Lord Justice Wall stated in 2006, it is time that the ‘Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father.”  

Such a proposition is fallacious and the close correlation between previous violence and the likelihood of a child being harmed in the future needs to be entertained and assessed exhaustively. Thus, the report calls for the family judiciary to put the needs of the child before the needs of the parent, and end the readiness of the courts to allow contact applications where domestic violence is a factor to be considered.

For example, recent statistics show that whilst between 70-90% of cases in the family courts involve domestic abuse, only 1% of child contact applications are refused. Moreover, in 44% of cases contact was granted to a parent who had directly abused their child. The proposals forming the impetus of the campaign would therefore bring the family courts back in line with the raison d’être of the Children Act 1989; that is, treating the protection of children as paramount.

The second strand to the Women’s Aid proposals relates to the unsatisfactory level of care afforded to vulnerable victims of domestic violence in the Family Courts. Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, when a dispute over who should care for a child results in Court proceedings, legal aid is available to a respondent if they can demonstrate that they have experienced domestic violence at the hands of a party to the proceedings. However, in instances where it is not possible to provide the court with sufficient evidence of such violence, the parent is often placed on the stand as a litigant in person and may be cross-examined by or be required to cross-examine the perpetrator, often their former partner. Understandably this places considerable emotional strain on the party and leaves them feeling ‘re-victimised’ and disillusioned by the justice system.

Polly Neate, Chief Executive of Women’s Aid therefore advocates that the civil justice system should be brought in line with the criminal, in that extra protective measures should be in place to protect vulnerable litigants.

At Avadis and Co. we recognise the emotional impact that care proceedings can have on a family and the particular vulnerability of children. We encourage the use of Alternative Dispute Resolution to resolve conflicts over care, but we understand that this is not always possible. Should court action be necessary, we will deal with your case sensitively and efficiently, and our team will dedicate their resources to ensuring the best outcome for you and your children.