PDSL10.1 Guidance - Child Arrangements: Domestic Violence

PRACTICE DIRECTION – SL10.1

Guidance - Child Arrangements: Domestic Violence

Introduction

1.  This Guidance shall apply to all cases concerning a child’s arrangement commenced or pending in the Family Court or the High Court, where there is an issue raised in relation to domestic violence, save in adoption cases or in an application made under the Child Abduction and Custody Ordinance, Cap 512.

2.  The procedure to be adopted in this Guidance is to be followed in any case where it is alleged, or there is reason to believe, that a child of the family or a minor has been subjected to or exposed to domestic violence or where there is risk of such violence occurring in the future. 

3.  The court must at all stages of the proceedings in the case give due consideration to the issue of domestic violence, whether it is raised as an issue by one of the parties, or by the Social Welfare Department or whether an application has been made for injunctive relief under the Domestic and Cohabitation Relationships Violence Ordinance, Cap 189 or otherwise. It must:

(a)  identify at the earliest possible opportunity the issues involved. This will most probably be at a hearing of an application for an injunction or a First Appointment hearing under Practice Direction 15.11 or a Children’s Appointment hearing under Practice Direction 15.13 or a directions hearing in the High Court.

(b)  consider the nature of the allegations, any admissions made by the alleged perpetrator, the nature of the evidence and the extent to which the allegations will be relevant if proved, to any issues pertaining to the arrangements for the child going forward.

(c)  if necessary, give directions for a fact finding hearing (“Fact Finding Hearing”) to be conducted as expeditiously as possible.  The court should only direct a Fact Finding Hearing to be conducted if there is sufficient prima facie evidence of domestic violence, and that it is in the best interests of the child for such a hearing to be conducted notwithstanding any delay and costs which may result in the proceedings. But if the issue of domestic violence is only raised at a very late stage, the court may exercise its discretion in resolving those issues only at the final hearing.

(d)  ensure that any interim orders are in the best interests of the child and if deemed appropriate that consideration be given to the possibility of supervised or supported access.

(e)  consider where appropriate any interim orders to vary or suspend existing custody or access orders as provided under section 7A of Domestic and Cohabitation Relationships Violence Ordinance, Cap 189.

4.  In all cases it is for the court to decide whether or not an order pertaining to a child is in his/her best interests. This is so whether or not an order is made by consent or otherwise.  When deciding the issue of the child arrangements the court should ensure, as far as possible, that any order for contact will be safe and in the best interest of the child.

Directions for a Fact Finding Hearing

5.  In the event that the court determines that a Fact Finding Hearing is necessary then the court shall, as soon as possible, arrange a hearing, if appropriate, before the Children’s Dispute Resolution hearing or any trial on the child issue.  If there is a substantive hearing fixed to be heard for an injunction application, the Fact Finding Hearing may be heard together with the injunction hearing.

6.  Directions given shall include the following:

(a)  The filing of affidavit/affirmation evidence by both sides giving particulars of the allegations made with evidence in support as necessary so as to identify clearly the specific issues to be determined by the court;

(b)  The filing of evidence by any relevant third parties;

(c)  The calling of a Social Welfare Report and/or a Clinical Psychologist Report and/or any other relevant reports, with clear set out of the matters the court considers necessary to be addressed;

(d)  The filing of the findings made by a Multi Disciplinary Case Conference;

(e)  The filing of any other relevant evidence including medical reports, police reports etc;

(f)  a PTR hearing to be fixed; and

(g)  any directions which the court may deem fit.

Separate Representation of the Child

7.  Depending on the seriousness of the allegations made and the difficulty of the case the court shall consider whether or not it is appropriate for the child to be separately represented, with reference to the Guidance on Separate Representation for Children in Matrimonial and Family Proceedings (Practice Direction - SL 6).

The Fact Finding Hearing

8.  At the Fact Finding Hearing the court shall, wherever practicable, make findings of fact as to the nature and degree of the domestic violence if any and its effect on the child, the parties and any other relevant third parties. A judgment setting out the court findings shall be handed down to the parties in the normal way.

9.  The court shall then consider whether or not it is appropriate in the circumstances to proceed to a Children’s Dispute Resolution hearing or to proceedstraight to trial on matters pertaining to the practical arrangements for the child.

Where there have been findings that domestic violence has occurred  

10.  Following any determination that domestic violence has occurred the court should consider the harm that the child may have suffered as a consequence and any harm that the child may be at risk of suffering if an order is made for custody/joint custody, care and control/joint or shared care and control and/or access. The court must be satisfied that as far as possible the emotional and physical safety of the child and the parent/person with whom the child is living is ensured.

11.  Where an injunction order is made under the Domestic and Cohabitation Relationships Violence Ordinance, Cap 189, the court may consider requiring the alleged perpetrator to participate in a programme approved by the Director of Social Welfare that is aimed at changing the attitude and behaviour that led to the granting of the injunction.

Directions with respect to access

12.  Where the court has made a finding that domestic violence has occurred, consideration should then be given as to whether or not any child arrangements order that have been made should be suspended or permitted and if they are to be permitted on what basis. Consideration should also be given to the possibility of supervised, supported and/or indirect access.  In the event that access is to be directly supervised by the Social Welfare Department or such other appropriate organization then an order should be made for an updated progress report in due course. Consideration should also be given to whether or not the order should be reviewed generally and if so when. If the contact is for a specified period then that should be stated in the order and a review mechanism should also be incorporated as appropriate.

Commencement

13.          This Guidance shall come into effect on 11 February 2019.

Dated this 18th day of January 2019