THE RELEVANCE TO CHILD CONTACT OF A HISTORY OF …



10 good reasons why a history of domestic violence between separated parents can be relevant to child contact arrangements?

Calvin Bell, FAMILY LAW 1139-1143

It is sometimes argued by legal practitioners that a history of domestic violence between the parents has no relevance to child contact, once the parents have separated. The term domestic violence can refer to a wide range of behaviours that include isolated incidents of minor violence (by one or both parents) to a regime of systematic coercive control involving regular physical, psychological and sexual aggression (usually by men against women). However, particularly where violence and abuse have been sustained over time, there are significant dangers for children in underestimating the implications for their welfare of contact arrangements because the parents’ relationship has ended:

1. For a large minority of women, domestic violence does not end with separation

It is commonly believed that the risk of harm to a woman because of domestic violence diminishes once the parties are no longer living together. However, for a substantial minority of women the reverse is the case. In fact, research consistently reveals that it is the very period during and following a couple’s separation that poses the greatest threat of physical harm to women (especially when it is the woman who has initiated the end of the relationship – particularly if she is a younger woman with children who leaves her abuser for another man).[i] The severity of violence during the currency of the relationship is among the best predictors for the occurrence of violence post-separation.[ii]

Moreover, whilst risk levels for physical violence tend to diminish with the passage of time, and generally fall significantly after 12 months or so following separation,[iii] patterns of hostility that develop during relationships tend to endure well beyond separation. Unsurprisingly, therefore, where domestic violence has been an issue, despite most abused mothers wanting contact to be maintained between children and their non-resident fathers, a substantial majority of those surveyed cite violence, threats, intimidation, and/or sexual and emotional abuse by non-resident fathers whilst exercising their contact rights.[iv] Child contact is identified by the Metropolitan Police as one of six high-risk factors for domestic violence to occur.[v]

Moreover, where violence and abuse of the mother does continue after separation, children are more likely to witness it than when the parents were living together since the violence is most likely to occur in the context of hand-over or contact. Furthermore, conflict in the context of contact is frequent enough among separating couples within the general population. Thus, even where resident mothers do not face ongoing aggression from their ex-abusers, regular conflict (which also has the potential for causing emotional harm to a child) commonly occurs over the irregularity of maintenance payments, erratic visiting patterns, dissatisfaction with frequency of contact, fathers’ demands to have contact without giving notice, failure to return children on time, fathers taking the children to unsafe places and drunkenness.

2. Domestic violence perpetrators generally make poor fathers

Harming a child’s primary carer and failing to protect a child from exposure to domestic violence constitutes a significant breach in parental responsibility and meets any definition of child abuse. Nevertheless, the nature of a man’s behaviour towards a child’s mother is also an important predictor of how he is likely to treat his children. Unsurprisingly, the links between domestic violence and direct child abuse are therefore firmly established in the literature: it is clear that a high proportion of domestically violent men also physically and emotionally abuse their children (some also sexually abuse them).[vi] The worse the partner-directed violence, the more likely it is that severe child abuse will co-exist.[vii] These risks do not abate post-separation,[viii] and may even increase because of the mother’s reduced ability to take action to protect their child.

Sturge and Glaser have also beseeched the family justice system to abandon any reliance on the proposition that a man with a history of violence to the mother of his children can, nonetheless, be a good father. Contact proceedings have tended to overlook the role of a domestic violence perpetrator as a parent and have focused on a father’s emotional investment in caring about his children whilst overlooking his ability to care for them. Yet, when set against the abilities identified by the Department of Health as central to an individual’s capacity to parent effectively,[ix] the great majority of coercively controlling men exhibit major parenting deficits (to which the psychological effects of exposure to domestic violence can leave children especially vulnerable).[x] These shortcomings are often accentuated post-separation when abusive men may have sole care of their children for longer periods than they have been used to. Such men are also very poor models for their children.[xi]

3. Domestic violence perpetration raises the risk of child abduction occurring

Whilst figures from the Home Office and Child Abduction Unit (Foreign Office) indicate that child abduction remains a relatively rare event, when it does occur, it is more common after separation of parents who have a history of domestic violence (though it is generally short-lived) and in the context of disputed contact proceedings. Abduction by the non-resident parent (or their agent), usually the father, can have very damaging and wide-ranging effects on children, adding to the harm they are already likely to have suffered because of exposure to domestic violence. Moreover, especially where the abducting parent flees to another region or country, recovering a child can be a very difficult task.[xii]

4. Domestic violence perpetrators often present themselves as the better parent

Those who pose a risk to their partners and children are often very difficult to distinguish from those who do not. In particular, abusive men come from all socio-economic backgrounds and from all personality groups, from loud and aggressive to mild and passive. It is also clear that legal practitioners can sometimes be seduced into under-rating the degree of risk posed by some men who have previously perpetrated violence and who often manage to gain advantage over their victims in contested contact/residence proceedings because of their capacity to:

▪ present themselves as mild-mannered, reasonable, rational people who share the interviewer’s humane perspectives and values

▪ construe past incidents of violence or abuse as resulting from ‘mutual combat’ or from uniquely occurring situational factors (which is true in some cases)

▪ fare well in psychological testing, often much better than their victims [xiii]

▪ present themselves favourably in court, again often much better than their victims[xiv]

▪ portray themselves as the better parent by exploiting (abuse-derived) deficits in a mother’s parenting or trauma symptoms as evidence of her unfitness to parent.

It is clear enough that many mothers have a very limited capacity to prioritise the needs of their children, independent of their experiences of abuse from their co-parent. However, especially it is severe and occurs over time, subjection to violence and abuse can significantly impair maternal functioning and protective ability.[xv] It can erode a mother’s self-esteem and confidence in parenting, leave her pre-occupied with her own distress, and render her physically and emotionally exhausted and unable to provide boundaries for the children (especially boys, who may identify with their father). Moreover, relative to their non-abused counterparts, mothers who are subjected to domestic violence or coercive control by a partner (particularly those with a history of family-of-origin violence themselves) are also much more likely to physically and emotionally maltreat their children.[xvi] (Some abused mothers treat their children harshly in an attempt to protect them from worse harm from the abusive co-parent.)

However, some family court professionals fail to recognise that the quality of a mother’s parenting often improves significantly once she has separated from an abusive partner:[xvii] a cessation in contact between a child and an abusive father can therefore have a very positive impact on the quality of mother’s parenting (as well as on the welfare of the children).

5. Many domestic violence perpetrators impair mother-child relationship

The quality of a child’s relationship with their primary carer is one of the strongest predictors of the child’s long-term well-being after separation of the parents, even without the additional traumas associated with exposure to domestic violence when children are in particular need of closeness and security with their primary care-giver.[xviii] However, even when the child is protected from exposure to further conflict and violence between the parents, many non-resident fathers exploit contact by alienating the child from their mother by blaming or denigrating her, by making threats about her to the child, by seeking secrets or derogatory information about her, or by persuading the child to encourage reconciliation, and thereby compromising the quality of the relationship on which the child is most dependent, especially for their emotional recovery.[xix]

6. Many domestic violence perpetrators undermine the mother’s parental authority

Some fathers actively undermine a mother’s authority or her role as a parent by giving the child the means to defy her (such as by telling the child not to obey her),[xx] or by employing intentionally neglectful or indulgent parenting in an attempt to secure their children’s loyalty (e.g. by lavishing them with gifts or allowing them to stay up late).[xxi] The child’s sense of stability is thus impaired by their experiencing different standards of (especially moral) behaviour, confusing their understanding of what is right or wrong. Arguments between parents about childrearing methods and children’s behaviour are a common cause of violent conflict, and contact clearly works best when both parents are able to recognise each other’s strengths and weaknesses and to arrive at compromise.[xxii]

7. Child contact can have the potential to impair the mother’s parenting ability

A primary carer’s mental health and the quality of their parenting have been identified as the most important protective factor in a child’s psychological development and well-being; the emotional recovery of a child who has been exposed to domestic violence also relies very heavily on the primary carer’s ability to prioritise the child’s needs. Even where the abusive co-parent takes responsibility for their past behaviour and makes a genuine to change, any re-arousal of significant distress and post-trauma symptoms in the resident mother by further association with the violent non-resident father is likely to compromise her ability to prioritise her child’s needs.

8. Contact can undermine the child’s recovery

A child’s sense of physical and emotional security is an important step in their recovery from the distressing effects associated with exposure to domestic violence; it is indispensable where the child has been traumatised.[xxiii] Failure on the part of the abusive parent to denounce their violence, to take responsibility for their actions, and to prioritise their child’s recovery needs means they cannot fully support the child and play a part in undoing some of the harm caused. A cessation in contact can allow such healing to begin whereas continued association with an abusive father often leads to the child’s ongoing distress and therefore interferes with their recovery,[xxiv] especially

Sturge and Glaser assert that without the abusive parent’s (preferably full) acknowledgement of their violence, acceptance of responsibility, expression or remorse, evidence of empathy, and desire to make amends, there is a significant risk that the child’s general well-being and emotional development will continue to be undermined if contact takes place (such as by invalidating the child’s own experience and undermining their sense of reality).[xxv] Moreover, in such cases contact is likely to compound the most serious of the consequences of children’s exposure (directly or indirectly) to domestic violence, namely the increased risk of aggression by the child, and the increased risk of their own involvement in violent relationships.

Even where the abusive parent has accepted full responsibility for their actions and has taken the necessary steps to ensure that violence will not be repeated, for many children previous traumas have engendered such fear that any association with the past (e.g. both parents being in the same place) or mere proximity to the violent parent can elicit extreme anxiety and distress,[xxvi] particularly if contact is imposed against the child’s will.[xxvii] The impact on children is likely to be especially damaging where they are aware of continuing fear on the part of the resident mother or are themselves afraid of being harmed or of their primary carer being killed or harmed by the non-resident parent. We find that for many children, separation from the abusive parent is experienced as a relief rather than a loss.

9. Protracting proceedings can constitute a further attempt by a father to exert control

A violent man’s relationship with his child involves a power relationship with the mother and many non-resident fathers seem intent on winning the battle for contact regardless of the costs to the child.[xxviii] For many abused women, already overwhelmed by the aftermath of a violent relationship, ongoing proceedings can be very demoralising, leading some to the point of despair.[xxix] We find that some families have to endure a father making repeated applications to the courts over many years. Some commentators posit that protracting proceedings effectively constitutes harassment and even a form of stalking.[xxx] Repeated unmeritorious applications for contact therefore risk adding to the family’s understandable anxieties, undermining the prospects of their being able to recover from what has happened and to finally leave their traumatic past behind them, and stripping away any residue of hope that the family justice system might one day afford them protection and respite. Sturge underlines the stress on the child (as well as their resident carer) when proceedings are drawn out or frequently re-initiated: proceedings often mean a standstill in the child’s life and development (at a time when the resident carer’s emotional energy may be consumed by the case being protracted). The child is often aware that they are at the centre of some dispute and may even feel responsible.

10. Domestically violent men tend to mistreat women in subsequent relationships

Although the prospects of a man with a history of domestic violence perpetration committing violence and/or abuse against other women depend to some extent on the dynamics of the relationship, and on the circumstances prevailing at the time, the fact remains that domestically violent men tend to mistreat women on a serial basis.[xxxi]

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[i] Numerous studies have found that women are most susceptible to increased assault and homicide by a spouse or partner in the post-separation months (including femicide-suicide). Moreover, many violent men recidivate against the same victim despite the existence of non-molestation orders. Analysis of homicide statistics in the U.K. by Dobash and Dobash (2001) suggest that the three months post-separation are the most dangerous for women who leave. In their review, Women seem to be at especially high risk of assault if they are young, have children, and leave their abuser for another relationship (Hilton and Harris 2005). According to their analysis of the 2001 British Crime Survey, Walby and Allen (2004) found that for 37% of abused women the violence continued after separation. For 18%, abuse continued in another form such as stalking or harassment. Mahoney and Williams (1998) reported that the risk of the abusive partner sexually assaulting the mother also increased during and post-separation. Hardesty (2002) also suggests that domestic violence perpetrators are far more likely to commit suicide as well as femicide when estranged from their former partners. Wilson and Daly (1994, 1993) underlined the (six-fold) increased of murder risk despite the estranged husband’s decreased access to the former partner. According to Wilson and Daly’s earlier work (1992), marital separation heightens the risks of violence and murder because it challenges “male proprietariness” where both marital rape and murder are fuelled by revenge at the woman daring to or planning to leave. Mirrlees-Black (1999) revealed that of the many thousands of incidents of domestic violence against women recorded each year in the British Crime Survey (BCS), 36% occurred when the couple were no longer living together. Further analysis of the BCS (Walby and Myhill 2000) reveals that 22% of separated women were assaulted by their ex-partners in the previous 12 month period. Browne’s research (1987) found women separated or divorced for up to two years still experiencing harassment and life-threatening assaults. Mooney (1993) also maintains that the actual incidence of post-separation violence is likely to be significantly higher than is typically reported.

[ii] Hardesty 2002.

[iii] Whilst some women are killed by their former partners many years after separation, risks decrease with time, most studies revealing that 85 – 90% of intimate femicides occur within 12 months after separation (review in Aldridge and Browne 2003).

[iv] Walker and Edwall (1987) found that abusive fathers were frequently reported to continue their harassment of mothers when picking up and returning the children. Violence and abuse do not always stop on separation, and it is clear that abusive men often use child contact (or arguments about contact and/or residence) to continue their violence to ex-partner and their attempts to control her and may well indeed seek to create such situations (URHC 2001, Hester and Pearson 1993). In Hester and Radford’s later research (1996), the majority of abused women interviewed wanted their children to maintain contact with their father after separation and yet the majority of the women in the survey had been attacked, threatened or verbally abused by their male partners post-separation when taking or collecting children from contact visits. In only seven out of the fifty-three cases examined was contact eventually set up such that no further violence or harassment of the mother or children occurred. In Kelly’s study of 70 women (1988), 70% of the women who had left violent men were harassed after separation. Dr. Radford’s research (Radford et al 1999) in fact revealed that of her sample 76% of the children who had court ordered contact were said to have been further abused in some way as a result of contact (10% allegedly sexually abused, 15% physically assaulted and 26% abducted or involved in an abduction attempt). Other researchers (Neilson 1997, Trinder at al 2002, Shepard 1992, Jaffe et al 1990, Johnston et al 1989) found similar results in which violent and controlling men exploited contact with children in order to continue their domination of the family unit after separation; they typically used contact to:

▪ gain financial leverage

▪ demonstrate that they are more valuable or important in the child’s life than the resident mother

▪ perpetuate a climate of conflict with the resident mother

▪ gain or maintain access to the child’s mother

▪ assert their power and re-establish control

▪ punish the child’s mother by maintaining a vendetta against her

▪ sabotage the mother’s new life

▪ perpetuate their violence, intimidation and abuse of the child’s mother

▪ abuse the child

▪ abduct the child.

[v] See the findings from the Multi-Agency Domestic Violence Murder Reviews in London (Metropolitan Police Service 2003).

[vi] The links are now firmly established and there is a growing body of research demonstrating the high correlation between spousal assault and the physical abuse of children (Browne et al 2002, McGee 2000 (review). Estimates vary (typically 40% to 70%). Commentators in the field independently maintain that child abuse is fifteen times more likely in families where domestic violence is present. Saunders (1993) reports that abusive husbands are seven times more likely than non-abusive husbands to abuse their children. Bowker at al (1988) also found that the severity of abuse to the mother is associated with the severity of abuse to the children in the home. Enquiries into the deaths of children and into the shortcomings of child protection practice have also revealed that violence towards their mothers can coincide with the children being at greatest risk of injury and homicide and of other kinds of child fatality. It is clear that many abusive men harm or threaten to harm their children specifically for the purposes of increasing their control over the mother. According to McMahon and Pence (1995), this appears to increase post-separation, particularly in the context of contact.

Moreover, other studies have found that children from families in which domestic violence occurs are at increased risk of being sexually abused. The study by Bowker and colleagues found that where the mother is being assaulted by the father, daughters are 6.5 times more likely to be sexually abused than girls in non-abusive families.

Abusive men have also been found to be more likely than their non-violent counterparts to be responsible for the psychological abuse of their children (McGee 2000).

[vii] Slep and O’Leary (2005) point to research that links the probability of co-occurring child abuse and domestic violence from 5% with a single act of partner-directed aggression in the last year to 100% when one act of aggression has occurred each week. In her large scale study, Ross (1996) found that the probability of child abuse approaches near certainty with 50 or more acts of domestic violence.

[viii] Bancroft and Silverman 2002, Neilson 2004, 1997. Neilson posits that rates of emotional abuse in particular are likely to increase because patterns of emotional abuse are so resistant to change.

[ix] The Dept. of Health (2000) identifies as central to an individual’s capacity to parent effectively their ability to:

▪ cater for a child’s basic physical needs, to recognise and protect the child from hazards and danger and to provide a stable and stimulating environment

▪ ensure that the child’s emotional needs are understood and responded to sensitively and to adapt to a child’s changing needs over time. Fundamental to this is a parent’s capacity to provide emotional warmth and to give a child a sense of being specially valued

▪ demonstrate and model appropriate emotional behaviour and interaction with others

▪ provide guidance and boundaries in order that child is able to develop an internal model of moral values and conscience, and social behaviour appropriate for the society in which they will grow up.

[x] Compared to their non-abusive counterparts, abusive men tend to:

▪ be less involved in the child’s upbringing

▪ demonstrate little interest in the child or be only randomly attentive

▪ be neglectful

▪ be less able to discriminate their own needs from those of their children

▪ be unable to sustain prioritisation of the child’s needs

▪ be more self-centred

▪ burden them with too much information about their own worries about their lives

▪ turn to their children for validation, caretaking and emotional support

▪ be less affectionate

▪ be less tolerant of crying

▪ be more irritable and angry

▪ be more rigid, authoritarian and controlling

▪ use more negative control techniques including physical punishment (such as smacking which they typically employed twice as frequently and with far more force)

▪ be more often cruel and harshly critical.

[xi] Bancroft and Silverman 2002, Jaffe et al 2008.

[xii] Retrieval is especially problematic if abduction occurs to countries who are not party to the Hague Convention (e.g. Moslem states in the Middle East).

[xiii] Fricker and Fricker 1997.

[xiv] See Zorza 1995.

[xv] Valerie et al 2000 (review). McKay (1994) also found that the stress of being victimised can lead a mother to parent ineffectively and inappropriately. Hilton’s (1992) research showed that some mothers alter their parenting styles for the worse in order to placate their abuser.

[xvi] Renner and Slack 2006, Taylor and Guterman 2007, Slep and O’Leary 2005, Appel and Holden 1998, Kotch et al 1995, Slep and O’Leary 2005.

[xvii] Jaffe et al 2005, Wolfe et al 1984, Anderson 2002, Jaffe et al 2008.

[xviii] Bancroft and Silverman 2002.

[xix] The damage to the child-mother bond which is inherent to domestic violence (McGee 2000, Radford and Hester 2001, Hughes and Marshall 1995) tends to continue or increase post-separation (Bancroft and Silverman 2002). Moreover, children caught up in contact proceedings often find themselves the central pawns in the struggle for power and control and may be confused about their own feelings (Slade 2000, Jaffe & Geffner 1998, Hughes 1997, Jaffe et all 1990). Where families have had to relocate, children are likely to miss old friends. They may even blame their mothers for having to move. They may also be keen to encourage ‘reconciliation’ between their parents and yet it is rare for an abusive father to admit to the child that their parents have separated as a result of his behaviour. Particularly in the early stages of contact, this can be easily exploited by the father (“If it wasn’t for your mother, we could all be back together again”) (Jaffe & Geffner 1998, p 385, Jaffe et al 2003) adding to the children’s confusion and ambivalent feelings about both parents.

[xx] By its very nature, domestic violence is undermining of a mother’s authority and children absorb messages from their father which shape their responses to their mother which can have far-reaching effects on her ability to parent (Johnson et al 2005, Bancroft and Silverman 2002, Hughes and Marshall 1995). Jaffe et al (2003), for example, cite how many fathers undermine a mother’s role by pointing to the common abuse-derived trauma symptoms as evidence of her unfitness to parent.

[xxi] Johnson et al 2005, Bancroft and Silverman 2002.

[xxii] Black & Newman (1996). Research by McGee (1997) suggests that arguments about child-rearing are a major precipitating factor in parental conflict and violence. Johnston and Roseby (1997) found a history of domestic violence to be predictive of poor co-parenting (according to Austin (2000) regardless of who initiated it) and inter-parental conflict which in turn is likely to compromise children’s ability to adjust to the separation of their parents (Felner et al 1988). Trinder et (2002) found that where contact worked well, all parties were committed to it and parents had reached agreements about their respective roles and had developed ways of working through the inevitable difficulties without resorting to conflict.

[xxiii] McGee 2000.

[xxiv] See Bancroft and Silverman 2002, Bentovim 2003, Wolak and Finkelhor 1998. In their research into contact arrangements, Humphreys and Thiara (2002) found a significant minority of women reported that their children’s behaviour and emotional well-being was adversely affected by ongoing child contact arrangements with an abusive ex-partner.

[xxv] Sturge (2000). Particularly where a father is idealised, an admission of, “I’m sorry, I was wrong,” can have a powerful reparative effect. On the other hand, some fathers have been known to use contact to talk about how depressed they feel following their separation and how they might just ‘end it all’ one day compounding any guilt the child may already feel for their predicament. What do children implicitly learn when violence they have witnessed is denied and not addressed? Many children ask: “why did you hit mummy?” Some visiting fathers continue to deny or minimise their violence alleging that it was accidental or even blaming the mother for her own victimisation (“It’s all your mother’s fault”). This may not only damage the child’s relationship with the resident parent but also undermine the child’s own sense of reality. See also Bentovim 2003.

[xxvi] See Jaffe et al (2003).

[xxvii] In test cases before the Court of Appeal (see judgement of the President of the Family Division, Lord Justice Thorpe and Waller of Re. M, a child; 19 June 2000) the following recommendations of Drs. Sturge and Glaser are mentioned (see also Sturge 2000):

“The psychiatric report addressed the problem of the child who was adamant that he did not wish to see the parent. The following factors ought to be accepted:

▪ the child must be listened to and taken seriously;

▪ the age and understanding of the child are highly relevant;

▪ the younger and more dependent child in a positive relationship with the resident parent will be influenced by the parent’s views and the wish to maintain a sense of security and stability within that household;

▪ going against the child’s wishes must involve indications that the child may change his view by preparation for contact e.g. earlier good attachment, arrangements by non-resident parent to help the child to overcome his resistance, ambivalence in the views expressed by the child about the parent.

Consideration should be given to the effects on the child of making a decision that appears to disregard their feelings and wishes and when the child is forced to do something if he cannot see the sense of it.”

On the age of the child, the judgement further notes that:

“As a rough rule we would see [the child’ wishes] as needing to be taken account of at any age: above 10 we see these as carrying considerable weight with 6 – 10 as an intermediate stage and at under 6 as often indistinguishable in many ways from the wishes of the main carer (assuming normal development). In domestic violence where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.”

In disputed contact cases where the children were consulted and deemed old enough to make informed decisions, Smart and May (January Fam Law 2004) found that the courts did not listen to them.

[xxviii] Jaffe et al 2003, 2008.

[xxix] Jaffe et al 2008.

[xxx] Neilson 2001, Goundry 1998.

[xxxi] Dutton 1995, Woffordt et al 1994, Kalmus and Seltzer 1986, Saunders 1995, Browning 1983.

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