CHILDREN, CONFLICT AND CONSISTENCY: DOMESTIC ABUSE AND THE FAMILY COURT 

Published on 21 February, 2024 | Katie Welton-Dillon

Our concepts of what constitutes a positive family environment evolve over time both as a result of what we experience as individuals and the input of others.

Sometimes, trying to reconcile differing viewpoints, particularly in relation to some of the more delicate and difficult aspects of family law can be a great challenge.

One such area is that of how parents contribute to the wellbeing of their children after their relationships have fallen apart.

A decade ago this year, a new law – the Children and Families Act 2014 – underlined that having both separated parents involved is beneficial to a child’s welfare unless there is a risk of harm to the child (https://www.legislation.gov.uk/ukpga/2014/6/section/11#:~:text=11Welfare%20of%20the%20child%3A%20parental%20involvement&text=(b)is%20to%20be%20treated,the%20form%20of%20the%20involvement.).

What if, however, the risk was more to the other parent than the child in question? What impact would that have on the outcome of proceedings?

That is certainly not an abstract issue.

One study by Cafcass, the body which represents and articulates the interests of children in family court matters, found that domestic abuse allegations were a feature in roughly two-thirds of such cases (https://www.cafcass.gov.uk/sites/default/files/migrated/Cafcass-response-to-domestic-abuse-consultation-040618.pdf).

It is a topic given fresh currency by a judgement in recent days in a case involving a former MP and Government minister, Andrew Griffiths, and his ex-wife.

During child arrangements’ proceedings in 2021, he was found to have sexually and physically assaulted Kate Kniveton – who is now an MP herself – during their marriage (https://www.judiciary.uk/wp-content/uploads/2021/12/Griffiths-v-Griffiths-fact-finding-judgment-261120.pdf).

Griffith had wanted to maintain direct contact with their child but a judge has now said that the only permitted contact will be indirect – four letters a year as well as birthday and Christmas cards (https://www.judiciary.uk/wp-content/uploads/2024/02/Andrew-James-Griffiths-v-Kate-Elizabeth-Kniveton-Judgment.pdf).

Mrs Justice Lieven explained that her decision was not because of a suspicion that Griffith would exercise his “very bad temper” with the child.

Instead, she described, that she had “little faith” in his ability to “restrain himself” from giving the child his version of events “unconstrained by court proceedings”.

In addition, the judge said that Griffith had “little appreciation” of the toll taken by the abuse and five years of litigation on his ex-wife.

As a result, she imposed an order permitted under section 91 (14) of the Children Act 1989

preventing him from issuing further applications for the next three years without permission of the court.

Such orders are, in my experience, quite uncommon. Although not amounting to an outright prohibition on an application being made, they require a judge to consider if it might have any merit and whether it should proceed.

These orders were previously made when a parent made repetitive applications to the court but, following a separate court ruling (https://www.bailii.org/ew/cases/EWCA/Civ/2021/1749.html), can now be used to prevent proceedings being used “as a weapon of conflict…a form of coercive control” by individuals against their former partners.

Since the ruling was made in her case, Ms Kniveton has spoken of her wish that her case acts as something of a precedent for other mothers in abusive relationships.

I believe that her ordeal – and there is no other way to put it than that – shows that the family court really does take domestic abuse seriously.

That said, I think that the case also highlights once more a tension between issues of domestic abuse and guidance on how the courts should operate.

The treatment which Ms Kniveton suffered came to light during what is known as a finding of fact hearing which formed part of child arrangements’ proceedings.

Two years ago, directions were given which recommended that such fact-finding procedures should take place only when it could be shown that domestic abuse directly impacts on the decisions that the court has to make – most commonly, determining the arrangements for a child (https://www.judiciary.uk/guidance-and-resources/fact-finding-hearings-and-domestic-abuse-in-private-law-children-proceedings-guidance-for-judges-and-magistrates/).

Family judges were told that “if your conclusion is that the allegations, if proved and however serious, would not be relevant to the decision, then no fact-finding hearing is required”.

It is, therefore, a difficult exercise for the court to undertake: at what point do such allegations become relevant?

This is arguably especially complex when the position of the parent making the allegations is that facilitating contact would have an adverse effect on them rather than posing any direct risk to their children.

That the judgement in this instance was not only made but reported allows us all to learn about the final decision and the deliberations which went into it.

It also demonstrates that there is still some way to go before we have true consistency in how domestic abuse and its consequences for parents and children alike are treated.

Only when that is the case, can victims – be they parents or children – feel that their voices and situations are being suitably addressed.