Emma Pearmaine: Why abusive spouses should be allowed to see their children after a divorce

As long as they are controlled and monitored, these relationships can be both rewarding and life changing.
Children are increasingly caught up in domestic abuse cases.Children are increasingly caught up in domestic abuse cases.
Children are increasingly caught up in domestic abuse cases.

SHOULD a previously abusive spouse be allowed to see their children after a divorce?

As a family lawyer and campaigner for victims of domestic violence, I know the answer is often complex – not least because an abusive situation doesn’t always need to be permanent.

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Accusations of domestic abuse feature in almost a quarter of our current cases. My team and I reviewed 200 ongoing divorces to measure the real scale of physical and emotional abuse amongst married couples.

We found that in the 22 per cent of cases where there have been accusations of domestic abuse, children are involved in as many as 70 per cent.

Domestic abuse takes many forms – from physical violence and abuse to controlling and coercive behaviour.

To find elements of abuse in so many current cases was not a big surprise, but what we had not previously established was that two thirds of those cases involve children.

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A sample review of Simpson Millar cases from 2015 tells us that the abusive spouse was ultimately awarded regular contact with their children in around 40 per cent of divorce cases.

Judging what is best for the children is anything but simple. What these figures do show us is that judges recognise the importance of children having contact with both their parents.

We regularly represent parents in contact cases where the biggest issue is whether the children should see or communicate with the abusive parent post separation. Experience tells us that this can be made safe, but families often lack the resources to help the courts make the right decision – putting some children at risk and denying valuable and safe parental contact.

Determining whether a child has ever been directly harmed by a parent is crucial. Those that have might still be at risk if contact is allowed. Likewise, we should not underestimate the emotional impact on children who have observed or been aware of domestic abuse in their home. But it is in these types of cases the courts face the biggest challenge.

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Although legal aid is still available for all family cases where there is evidence of domestic violence and eligibility criteria are met, the Legal Aid Agency is generally only willing to fund independent expert reports needed to adequately analyse a child’s risks, and needs, when a court order requires it.

A parent can ask the court for such an order, but without evidence to suggest that this is necessary, it is usually only made with a recommendation from the Children and Family Court Advisers (CAFCASS).

When a parent applies to see a child or for a child to live with them (formerly known as contact or residence and now called a Child Arrangements Order), both parents will usually receive a telephone call from CAFCASS to determine whether there are any safeguarding issues.

But I know several instances where a parent has not been alive to how they should flag safeguarding issues, and might not be able to adequately express the concerns they might have.

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As a result, they fail to impress on CAFCASS the need for those very real concerns to be taken into account. Although CAFCASS can recommend to the court that it itself investigates further, or that an external independent expert is instructed, resources are limited.

Therefore, most initial investigations take place over the telephone, which is far from ideal. The result is that some children are potentially being placed at emotional risk, while others are denied a meaningful and rewarding relationship with a parent.

I am particularly concerned about children whose parents are litigants in person. Those parents do not know who to press for help, or understand the powers available to the court to order further investigation.

We must be able to take an investigative approach to cases where children have been at the periphery of domestic violence. When we are asked to help a parent with limited financial resources, my team faces a serious challenge. But we have a duty to act in the best interests of the children.

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Allowing a child with a formerly abusive parent to maintain a relationship under controlled and monitored circumstances might be seen as contentious by some. But we know that those relationships can be rewarding and life changing – and that the children will be safe when proper support is in place.

We just can’t afford to get it wrong.

Emma Pearmaine is director of family services at law firm Simpson Millar.