- News & Comment
-
Online Shop
Online Services
Looseleafs
Law Reports
Books and eBooks
-
CPD & Events
Webinars
- Authors
- About Family Law
- Contact
Around 60% to 90% of child arrangements disputes in the family courts of England and Wales involve allegations of domestic abuse, according to a recent parliamentary research briefing ('Child arrangements: the family court and domestic abuse (England and Wales)') examining how the courts handle safeguarding concerns when deciding where children should live and how they should spend time with their parents.
A child arrangements order determines issues such as who a child lives with, when they spend time with each parent and what other forms of contact take place. When making such decisions, the court’s paramount consideration is the welfare of the child, applying the framework set out in the Children Act 1989.
Judges must consider factors including the child’s wishes, the risk of harm, and each parent’s ability to meet the child’s needs. The court must also apply the presumption that involvement of both parents will further the child’s welfare, provided that involvement does not place the child at risk of significant harm. This presumption has been the subject of sustained criticism in cases involving domestic abuse.
Where abuse is alleged, the court must follow Practice Direction 12J of the Family Procedure Rules, which requires the court to ensure that any order protects the safety and wellbeing of both the child and the parent who may be at risk, and does not expose either to further harm.
The Briefing also highlights continuing controversy around the use of allegations of parental alienation. Guidance issued by the Cafcass refers to “alienating behaviours” as patterns of conduct by one parent that may undermine a child’s relationship with the other. However, concerns have been raised that claims of alienation are sometimes used to counter allegations of domestic abuse rather than to address the child’s welfare.
Significant criticism of the family justice system followed publication of the government-commissioned Harm Panel report in 2020, which concluded that domestic abuse was not always properly recognised in private law children cases. The panel identified what it described as a “pro-contact culture”, siloed working between agencies, an overly adversarial process and limited resources as factors contributing to unsafe outcomes.
Both the previous and current governments have introduced reforms in response to the report. The Domestic Abuse Act 2021 extended the availability of special measures in the family court, prohibited perpetrators from cross-examining victims in person, and clarified the court’s power to make barring orders where legal proceedings are used as a form of continuing abuse.
A pilot scheme testing a more investigative approach to private law children cases was launched in 2022 and has since been expanded to multiple court areas. The model places greater emphasis on early fact-finding, judicial continuity and specialist domestic abuse support.
Further change is proposed in the Crime and Tribunals Bill, which includes provisions to repeal the presumption of parental involvement. The Government has said the reform is intended to ensure that the safety of children and victims of abuse is prioritised over assumptions about ongoing parental contact.
The Briefing concludes that, while reforms are ongoing, the handling of domestic abuse allegations in child arrangements proceedings remains one of the most closely scrutinised aspects of the family justice system in England and Wales.
