Emmerson Solicitors - Family Law

Domestic Violence: Where's the Proof?

By and large, "going to Court" is something which people prefer to avoid, where there are other options available; it certainly isn't a regular occurrence for most, and as a result, the process can be somewhat mystifying.

One concept which parties may find particularly difficult to comprehend is the 'standard of proof'. You've probably heard of the idea of being 'innocent until proven guilty', but did you know that the approach to the issue of 'proof' differs between areas of law?

In Family Law, the ‘standard’ of proof – which is to say the threshold required for a Judge to decide whether something did or did not happen is ‘on the balance of probabilities’. Essentially, this is a fancy way of asking: ‘is X more likely to have happened, than not?’

Given that ‘domestic violence’, conceptually speaking, can only arise in a family setting, it is perhaps unsurprising that allegations of this sort arise fairly frequently in Family Law. It is a concept which includes a wide range of behaviours, such as:

• Physical and sexual abuse
• Emotional and psychological abuse (including controlling or coercive behaviour)
• Financial abuse
• Cultural forms of abuse (e.g. honour-based violence, or forced marriage)

As a general point of principle, Family Law treats any such behaviours as being – to a greater or lesser extent – harmful to any children who may be in the household in which the behaviour takes place; whether or not the child witnessed the abuse, directly or indirectly.

As the Family Courts are chiefly concerned with the welfare of the child or children in question, parents will find that where there are allegations of any such domestic violence, Judges are extremely reluctant to take risks in allowing the accused parent access to the child.

This highly risk-averse approach is reinforced by a recent practice direction (a form of guidance designed by the most senior Family Judge in the Land, as to how Judges across the Country should approach the cases that are before them).

The guidance states that, where domestic violence is raised as an issue, the Court should not make an order requiring the accusing-parent to make the child[ren] available to spend time with the alleged perpetrator unless:

1. The Court is satisfied that it is in the best interest of the Child[ren] to do so, AND
2. The Court is satisfied that if the Child[ren] were to spend time with the alleged perpetrator, they would not be exposed to an ‘unmanageable risk’ of harm.

In many ways, the effect of this guidance is that as soon as an allegation is made, there is a presumption against contact – or at the very least, a hurdle to be overcome before contact can continue. This can be perplexing for the accused parent, who may say:

“But they’re just allegations, where’s the proof?!”

In the Family Court, there are essentially three ways in which a Judge can be satisfied that something which is alleged to have happened did in fact happen:

1. There is an admission made by the accused party
2. A Criminal Court has made a finding against the accused party (i.e. a conviction, whereby the standard of proof is ‘beyond reasonable doubt’)
3. A Civil Court has made a finding against the accused party (e.g. the Family Court, on the ‘balance of probabilities’)

In order for the Family Court to make such a finding, a ‘Finding of Fact Hearing’ will need to take place, at which evidence will be put forward, including the calling of witnesses, who will provide their testimonies on oath.

What does this mean for you?

If your contact with your children breaks down, and you aren’t able to agree on matters with your ex-partner, you may need to make an application to Court, for an order stipulating the amount of time that you are able to spend with your children.

If, having received your application, your ex-partner makes allegations of domestic violence, you may then need to wait until the Court has the opportunity to hear full evidence, and decide whether there is any truth to the allegations.

As they’re so complex, these hearings often take place over a number of days; and, depending on the Court’s availability, it could take months for them to find a time slot. In the meantime – to minimise the potential risk to your children – you may be prevented from seeing them.

Clearly, this has the potential to be extremely frustrating for individuals who find themselves wrongly accused of domestic abuse; however, the focus – as ever – is on the welfare of the Child, not the feelings of their parent.

As you can see, the conundrums we are presented with by our Divorce Clients are worthy of much thought and strategic planning. Just like a high-speed game of chess. At Emmersons, our Specialist Divorce Lawyers have the experience to think outside of the box; to create solutions to meet our clients’ needs whilst ensuring their legal fees are proportionate.

Family Law Solicitors Newcastle:  0191 284 6989

Family Law Solicitors Sunderland: 0191 567 6667

Email us: enquiries@emmersons-solicitors.co.uk

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