Practice Direction (Residence and Contact Orders: Domestic Violence)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Year | 2008 |
| Court | Family Division |
Practice - Family proceedings - Domestic violence - Applications for residence or contact orders where reason to suppose child or other party experiencing domestic violence perpetrated by another party - Proper approach of court
1 This practice direction applies to any family proceedings in the High Court, a county court or a magistrates’ court in which an application is made for a residence order or a contact order in respect of a child under the Children Act 1989 or the Adoption and Children Act 2002 or in which any question arises about residence or about contact between a child and a parent or other family member.
2 The practice set out in this direction is to be followed in any case in which it is alleged, or there is otherwise reason to suppose, that the subject child or a party has experienced domestic violence perpetrated by another party or that there is a risk of such violence. For the purpose of this direction, the term “domestic violence” includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm. (“Harm” in relation to a child means ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another: Children Act 1989, sections 31(9) and 105(1).)
General principles3 The court must, at all stages of the proceedings, consider whether domestic violence is raised as an issue, either by the parties or otherwise, and if so must: identify at the earliest opportunity the factual and welfare issues involved; consider the nature of any allegation or admission of domestic violence and the extent to which any domestic violence which is admitted, or which may be proved, would be relevant in deciding whether to make an order about residence or contact and, if so, in what terms; give directions to enable the relevant factual and welfare issues to be determined expeditiously and fairly.
4 In all cases it is for the court to decide whether an order for residence or contact accords with section 1(1) of the 1989 Act or section 1(2) of the 2002 Act, as appropriate; any proposed residence or contact order, whether to be made by agreement between the parties or otherwise must be scrutinised by the court accordingly. The court shall not make a consent order for residence or contact or give permission for an application for a residence or contact order to be withdrawn, unless the parties are present in court, except where it is satisfied that there is no risk of harm to the child in so doing.
5 In considering, on an application for a consent order for residence or contact, whether there is any risk of harm to the child, the court shall consider all the evidence and information available. The court may direct a report under section 7 of the 1989 Act either orally or in writing before it makes its determination; in such a case, the court may ask for information about any advice given by the officer preparing the report to the parties and whether they or the child have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court shall make a note of its substance on the court file.
Issue6 Immediately on receipt of an application for a residence order or a contact order, or of the acknowledgement of the application, the court shall send a copy of it, together with any accompanying documents, to CAFCASS or CAFCASS Cymru, as appropriate, to enable CAFCASS or CAFCASS Cymru to undertake initial screening in accordance with their safeguarding policies.
Liaison7 The designated family judge, or in the magistrates’ court the justices’ clerk, shall take steps to ensure that arrangements are in place for: the prompt delivery of documents to CAFCASS or CAFCASS Cymru in accordance with para 6; any information obtained by CAFCASS or CAFCASS Cymru as a result of initial screening or otherwise and any risk assessments prepared by CAFCASS or CAFCASS...
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Re W (Children)
...the judiciary to efficient and cost-effective case management. 31 The most recent (and recently updated) Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [2008] 2 FLR 103 ( the Practice Direction) is seen by some as imposing a still further burden on an already ......
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Re T (Care Order)
...CC v L (care or supervision order) [1998] 1 FLR 70. Practice Direction (residence and contact orders: domestic violence and harm) [2008] 2 FCR 273. S (J) (A Minor) (Care or Supervision Order), Re[1993] 2 FCR 193, [1993] 2 FLR T (a child) (supervision order: duration), Re[2008] EWCA Civ 199,......
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Aa v Na and Others
...[2008] 1 FCR 707, [2008] 1 FLR 1508. Practice Direction (residence and contact orders: domestic violence and harm)[2009] 1 FCR 223, [2008] 2 FLR 103. R (a child) (fact finding hearing), Re[2009] EWCA Civ 1619, [2009] 2 FLR R v Lucas [1981] 2 All ER 1008, [1981] 1 QB 720, [1981] 3 WLR 120, C......
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H (A Child)
...Z he took the observation of Wall LJ that Practice Direction (residence and contact orders: domestic violence and harm)[2009] 1 FCR 223, [2008] 2 FLR 103 was to be obeyed and that it ‘places proper and firm emphasis on the importance of the fact-finding exercise’ which cannot be short-circu......