Hearing children’s voices?: Including children’s perspectives on their experiences of

domestic violence in welfare reports prepared for the English courts in private family

law proceedings.

Abstract

This research examined Children and Family Court Advisory and Support Service (Cafcass)

reports prepared for private family court proceedings in domestic violence cases in England.

The research found that in cases where children’s accounts identified them as victims of

violence, these disclosures regularly disappeared from report recommendations. Particular

discourses regarding ‘child welfare’ and ‘contact’ were identified, which routinely impacted

on the ways in which children’s voices were taken into account. Whilst culturally there has

undoubtedly been an influential move towards including children’s perspectives in decision-

making that affects them, how these views are interpreted and represented is subject to adult

‘gate-keeping’ and powerful cultural and professional ideologies regarding ‘child welfare’

and ‘post-separation family relationships’. This research found that the unrelenting influence

of deeply embedded beliefs regarding the preservation or promotion of relationships with

fathers continues to have the effect of marginalising issues of safeguarding, including

children’s voiced experiences of violence, in all but the most exceptional of cases. Rather,

safeguarding concerns in respect of domestic violence and child abuse were persistently

overshadowed by a dominant presumption of the overall benefits of contact with fathers.

Keywords

Domestic violence, child contact, children’s voices, child welfare, Cafcass

This article1 is based on research which examined Children and Family Court Advisory and

Support Service (Cafcass) section 7 (Children Act 1989) reports prepared for the family

courts in child arrangement disputes in domestic violence cases (in England). Content

analysis of reports was used to investigate how information about domestic violence was

presented in reports, how children’s voices were included and what impacts these

representations had on recommendations made to the courts. In addition to content analysis,

critical discourse analysis (CDA) of a small sub-sample of reports was used to examine

discursive practices in-depth. Critical discourse analysis identified pervasive ideologies about

child welfare and contact with non-resident fathers, which impacted on how and to what

extent domestic violence and children’s voices were represented and taken into account in

report recommendations.2

This paper focuses on the inclusion of children’s voices part of the analysis. The

paper will begin by outlining the legal context relating to child arrangements post parental

separation, followed by consideration of the literature related to hearing children’s voices. A

summary of the research methodology, including detail of the analytical methods, is then

provided. Key findings from both the content analysis and CDA are presented in relation to

how children’s voices were represented in reports and the impacts these representations had

on recommendations. Findings are then discussed, concluding that dominant ideologies and

ideals concerning ‘child welfare’ and ‘post-separation family relationships’ shape and restrict

the ways in which children’s voices are included in legal decision-making. This, it is argued,

has detrimental impacts for effective safeguarding in domestic violence cases. The

implications of this for policy and practice are discussed.

Legal and Policy Context

Post-Separation Arrangements for Children

If parents cannot agree on arrangements concerning children following separation they can

apply to the courts for an order under section 8 (s8) of the Children Act 1989. Applications

usually concern issues of contact and/or residence. As a result of amendments made by the

Children and Families Act 2014 ‘contact’ and ‘residence’ orders are now referred to as ‘child

arrangement orders’.3 If the parental dispute cannot be resolved and/or issues of child welfare

have been raised, the judge will ordinarily request a welfare report under section 7 (s7) of the

Children Act 1989. An s7 report is normally undertaken by a Cafcass Children and Family

Reporter (CFR). Cafcass’ primary aim is to safeguard and promote the welfare of children

subject to family court proceedings. A primary function of this role is to represent children’s

voices, usually by consulting with a child and presenting their views within the S7 report. In

general, S7 reports should consider the disputed issues, the options available to the court and,

where feasible, make a recommendation to the court concerning future action, including

consideration of whether an order should be made. The court will make a decision based on

consideration of this report and any recommendation made, and other specific or expert

information where requested.

The imperative to include children’s perspectives in legal proceedings affecting them

and to take these perspectives into account, dependent on the child’s age and maturity, is

enshrined in Article 12 of the United Nations Convention on the Rights of the Child

(UNCRC, 1989) and in the Welfare Checklist at s1(3) of the Children Act 1989.4 The

importance of including children’s perspectives has also been restated in Munro’s (2011)

review of child protection services and the Family Justice Review (MoJ & DfE, 2011). There

is no legal prescription regarding the age at which children should be consulted and have

their wishes and feelings taken seriously. However, there is evidence that even very young

children are capable of expressing a view if provided with the right environment and tools to

meet their particular communication needs (Clark & Moss, 2011; O’Kane, 2008; Winter,

2010). Therefore, it is generally considered good practice to meet with and at least attempt to

elicit the wishes and feelings of any child deemed capable of expressing a view of some sort.

Presumption of Contact

Contact with a non-resident parent following parental separation or divorce is a complex

legal matter, with no set rules on how much or what form contact should take (Coy, Perks,

Scott, & Tweedale, 2012). However, the United Nations Convention on the Rights of the

Child (UNCRC, 1989) makes it clear that children have the right to maintain ‘personal

relations and direct contact’ with parents from whom they are separated, ‘except if it is

contrary to the child’s best interests’ (UNCRC, Article 9). This principle has been reinforced

in case law.5 However, a legal presumption of contact has principally been established on the

basis that contact promotes child welfare and is ‘almost always’ in the interests of the child.6

This presumption is reflected in official government statistics which show that contact is

denied in less than 1% of all contact application cases (DCA, 2004, 2006; MoJ, 2012).

Behind the legal presumption of contact is a heteronormative vision of families and

harmonious family life. This vision is supported to an extent by a body of empirical evidence

concerned with the impact of divorce/parental separation. Influential small-scale studies, first

in the USA and then the UK, found direct links between better outcomes for children post-

parental separation and ongoing contact with the non-resident parent, usually the father

(Cockett & Tripp, 1994; Wallerstein & Kelly, 1980; Hetherington, Cox, & Cox, 1982;

Richards & Dyson, 1982). This research coincided with the growth of father’s rights groups

concerned with perceived discrimination against fathers in the family courts and men’s rights

as fathers.7 There is, it could be argued, an ‘intuitive’ or ‘common sense’ appeal to promoting

family relationships in order to support healthy development in children. However,

underneath this is a far more complicated picture. The evidence base for children needing

contact with fathers post parental separation is complex and inconclusive. This body of

evidence is constituted by a large number of diverse studies employing various

epistemological and methodological approaches, making analytical comparison difficult.

Research findings are ambiguous and contradictory. A number of studies found no link

between the frequency of contact and child outcomes (Amato & Gilbreth, 1999), and others

have highlighted the importance of contact quality over quantity for child wellbeing

(Hawthorne, Jessop, Pryor, & Richards, 2003; Lewis, 2005; Pryor & Rodgers, 2001). Other

research found that conflicted relationships are a better indicator of poor outcomes for

children than parental separation itself, and that contact in such circumstances is not likely to

benefit children (Buchanan, Maccoby, & Dornbusch, 1996; Kelly, 2000). Significantly, a

substantial number of studies have highlighted specific concerns and risks associated with

contact in domestic violence cases (Hester & Radford, 1996; Humphreys & Thiara, 2003;

Jaffe, Lemon, & Poisson, 2003; Saunders, 2004; Women’s Aid, 2016).

Whilst research has raised awareness of domestic violence as a child welfare issue in

contact cases, it does not appear to have affected the default pro-contact position, as attested

to by the almost negligible number of cases where contact is denied. It is argued that the

pervasive and persistent dominance of the pro-contact ideology, despite research evidence

which problematizes this stance, is attributable to powerful normative values and ideals based

on a heteronormative (and restricted) understanding of family forms and functions (Barrett &

McIntosh, 1982), which privileges ongoing family relationships, and in particular

relationships with fathers.

Domestic Violence and Contact

The strong legal presumption of contact in almost all circumstances has been mediated to an

extent by other case law which highlights the importance of recognizing domestic violence as

a child welfare issue. The landmark Court of Appeal case Re LVMH stated that whilst

domestic violence should not constitute an automatic bar to contact it must be taken seriously

as a risk factor, alongside other factors, in disputed child arrangement cases.8 The principles

of Re LVMH have been reinforced in Practice Direction 12J outlining the process courts

must follow in private family law proceedings involving domestic violence.9 As a result,

courts are required to consider the effects of any proven domestic violence on the child and

the resident parent, the potential for further violence and the ability of the violent father to

acknowledge their violence and to change their behavior. Therefore, whilst there is a legal

presumption of contact, this must be balanced with ensuring that any order for contact will be

safe and in the ‘best interests’ of the child.

Children’s Perspectives

It is now widely accepted that the ‘voice of the child’ matters (Jenks, 1982, 1996; James &

Prout, 1997; James, Jenks, & Prout, 1998; Smart, Neale, & Wade, 2001) and that children,

wherever possible, should be enabled to share their wishes and feelings about matters that

affect them if they want to (Buchanan, Hunt, Bretherton, & Bream, 2001; Butler, Scanlan,

Robinson, Douglas, & Murch, 2003; Drakeford, Scourfield, Holland, & Davies, 2009; James,

2007; Thomas, 2002). Article 12 of the UNCRC (1989) establishes the right of children

capable of forming their own views to express those views freely in all matters affecting

them, their views being given due weight in accordance with their age and maturity. In

particular, children must be,

provided the opportunity to be heard in any judicial and administrative proceedings

affecting them, either directly, or through a representative or an appropriate body, in

a manner consistent with the procedural rules of national law.

Alongside this, there is a growing body of evidence that children’s perspectives should be

included and taken into account not just because it is their right to be heard, but also because

there is inherent value in the contributions children make to assessment and decision-making.

As a result of paradigmatic shifts in thinking about and understanding children and

childhood, there is general consensus that children are, according to Smart, Neale, and Wade

(2001), ‘creative social and moral agents’ (p. 1-2), capable of possessing informed views

about their own situations and of influencing the world around them as well as being shaped

by it (Jenks, 1982, 1996; James et al., 1998; James & James, 2004; Prout & James, 1997). It

has been successfully argued that including children’s perspectives is vital if we are to

develop an understanding of children’s viewpoints as distinct from the viewpoints of adults

within the family; to view experiences and perspectives from a children’s ‘standpoint’

(Mayall, 2002; McCarry, 2005; Smart et al., 2001). In the specific context of parental

separation, Butler, Scanlan, Robinson, Douglas, and Murch (2002) highlight that, ‘children

are not only relevant and competent witnesses to the process of their parent’s divorce, they

are also the most reliable witnesses of their own experience’ (p. 99).

Active inclusion and appropriate consideration of children’s voices should contribute

towards effective safeguarding in cases involving issues of violence and risk (Aldgate &

Seden, 2006; Willow, 2002, 2009). Leira (2002) argues that listening and responding to

children’s accounts of violence validates those experiences, by communicating to a child that

they have been heard and what they have said has been taken seriously, as well as enabling an

appropriate response to be formulated. Eriksson and Nasman (2008) further argue that failure

to respond to a child’s disclosure of abuse reinforces the child’s victim status, rendering their

experiences invisible or ‘invalid’. Being actively listened to can benefit children by helping

them process and deal with negative experiences, which may in turn help reduce anxieties

and distress (Butler et al., 2002; Smith, Taylor, & Tapp, 2003). Involving children in

assessment processes can also promote personal skills, self-esteem and a sense of

empowerment or control, by engaging children in problem-solving, and valuing them as

experts in their own lives (Munro, 2001; Powell & Smith, 2009; Sinclair, 2004).

Whilst the principle of promoting the ‘voice of the child’ is generally agreed, putting

this into practice in a meaningful way is fraught with complexity and contention. A number

of theorists and researchers have examined and problematized how and to what extent

children’s perspectives are included, highlighting particular social and cultural ambiguities

(Jans, 2004; James, 2007; James et al., 1998; Kjorholt, 2002; Prout, 2000; Williams &

Rogers, 2016). In brief, these ambiguities can be found in the tension between ‘rights’ and

‘welfare’; the dual rights to participation and protection (Kjorholt, 2002). It is recognized that

whilst having self-determined agency and autonomy, children are simultaneously subjects of

care (Jans, 2004; Kjorholt, 2002). Concern has been voiced, particularly by practitioners

working with children, that due to children’s positioning as dependent, unequal and

inexperienced, asking them for their views and preferences regarding matters normally

viewed as ‘adult’ may be experienced as stressful, and therefore to the detriment of child

welfare (Morrow, 1999; Pranzo, 2013).

It is important to note, however, that whilst provision is made for children’s views to

be included and heard, nowhere in the UNCRC or within domestic law does it state that

children should be given the responsibility of decision-making. Rather, children’s views

should be incorporated and considered as part of a holistic approach to assessment and

decision-making which is based on a range of views and sources of information (Hart, 2008;

Williams & Rogers, 2016). Furthermore, sensitivity is needed to enable and support the

involvement of individual children, recognizing degrees of vulnerability and resilience as

well as the complexities of individual circumstances, to balance participation and protection.

Including children’s voices and empowerment need not be in opposition to a welfare

discourse (Eriksson & Nasman, 2008). Jans (2004) concludes that we must recognize, accept

and work with the ‘ambivalent reality’ of children having rights, agency and self-

determination as well as simultaneously being in need of care and protection; these different

elements of childhood should not be seen as dichotomous, but a normal part of development.

Balancing these tensions is, nonetheless, complex and difficult, for even the most

well-intentioned and experienced practitioners. Ultimately, adults make the decisions, having

taken the child’s views into account among other considerations, when deciding how best to

safeguard and promote the welfare of an individual child. Adults ‘gate-keep’ children’s

voices when deciding which children are of sufficient age and maturity to be consulted, the

forms consultation and representation might take, what should be included in welfare reports

and to what extent children’s views might inform an assessment of what is considered to be

in their ‘best interests’ (Birnbaum & Saini, 2013; James, 2007; James, James, & McNamee,

2004). Complex power relations between children and adults inevitably affect how children

express themselves, and then how CFRs, according to James (2007), ‘translate, mediate and

interpret’ what children say (p. 267). This affects the true ‘authenticity’ of the child’s voice

represented (Spyrou, 2011). Interpretation and representation of children’s voices is

predicated on the ‘lenses’ through which children’s voices are viewed and filtered. These

lenses are made up of the CFR’s beliefs and experiences, their professional role and ‘legal

and structural constraints’ (James et al., 2004, p. 194). Particular words and phrases may be

chosen (most probably subconsciously) or given prominence to confirm biases or to conform

to hegemonic ideologies and ideals, resulting in a ‘selective approach’ being taken towards

children’s voices (Coy, et al., 2012; Holt, 2011; Mullender, Hague, Iman, Kelly, Malos, &

Regan, 2002). Consequently, the weight given to individual children's wishes and feelings

varies according to the extent to which their voices accord with widely held assumptions

about child welfare.

The meaning of the ‘best interests of the child’, however, is not a neutral concept, but

is, ‘informed and re-defined by dominant social structures, power relationships, and

discourses’ (Harne & Radford, 1994, p. 75). Tensions and complexities associated with

judicial decision-making in which a socially and politically constructed concept of welfare as

an indeterminate, but universal, principle is applied in individual cases have been highlighted

(for example, Diduck & Kaganas, 2006; Herring, 2007; and James et al., 2004). Sweeping

generalizations can be made using the language of ‘the best interests of the child’ to refer to

all children as a homogenous group, distorting or concealing the needs and strengths of

individual children. Such generalizations can render children’s voices silent, and produce

rigid, and often inaccurate, outcome predictions for individual children. Research has

consistently found that children’s voices are more likely to be taken seriously within

decision-making when their perspectives concur with those held by adults, reflecting widely

held social and cultural norms, but are more likely to be disregarded when they do not

(Caffrey, 2013; James et al., 2004). Therefore, there is an inherent ambiguity in representing

children’s voices within a system that already knows and prescribes what is in the ‘best

interests of children’ in general, due to the power of universal welfare principles and the

language associated with child welfare (James et al., 2004; Masson, 2003).

In conclusion, it is argued that the ways in which children’s voices are constructed

and represented in family court proceedings are shaped and restricted by social and cultural

discourses regarding ‘children’ and ‘childhood’ (James et al., 2004), and normative

assumptions about families and family life. The research presented below found that

powerful discourses about children, family relationships and ideal childhoods constrained

children’s voices in domestic violence cases in ways which marginalized or disregarded their

voiced experiences of violence (Eriksson & Nasman, 2008). Children’s fears and concerns

about contact with a violent father were not actively taken into account (Caffrey, 2013; Holt,

2011). This, in effect, invalidated those experiences and feelings, which has serious

implications for safeguarding as well as reinforcing the ‘victim status’ of the silenced child

(Caffrey, 2013; Eriksson & Nasman, 2008; Holt, 2011).

Study

The study consisted of analysis of 70 Cafcass s7 welfare reports in order to investigate

Cafcass practices within their ‘own social setting’ (Ritchie, 2003, p. 34). Reports were

sampled from two English Cafcass teams, based in distinct geographical locations, one in the

South of England and the other in a more Central region of the country), over a nine month

period in 2006-2007. The two participant Cafcass teams were limited to those who agreed to

participate following a nationwide request for participant sites made through Cafcass’

National Office. A third team was recruited as a pilot site and was used to trial selection

processes and a content analysis tool. No data from the pilot site was included in the final

analysis. Reports were selected for analysis using predetermined selection criteria:

- The case had been closed for at least 3 months at the time of analysis, in order to avoid

any ethical or practical difficulties associated with accessing the paperwork relating to an

open case; but had not been closed longer than twelve months. This provided a nine

month time frame in which to sample the reports;

- The case involved domestic violence. A screening tool was developed and systematically

used to detect domestic violence in reports written in the given time period. This tool was

based on an inclusive definition of domestic violence in order to recognise a range of

controlling, coercive and abusive behaviours;

- The case involved at least one child aged eight years or over, in order to ensure reports

included children who were likely to have been interviewed by a CFR, so that the

inclusion of children’s perspectives could be analysed. Analysis was undertaken

regarding the views of all children subject to proceedings included in reports, regardless

of age.

These selection criteria produced a total sample of 70 s7 reports, 48 from the South team and

22 from the Central Team. The legalities and ethics regarding access to highly personal and

sensitive court information were carefully considered in collaboration with Cafcass at the

beginning of the research design process and throughout the research. The study was subject

to approval by the Ethics Committee of the university where the research took place and

Cafcass’ Research Governance Committee. All reports were fully anonymized and

pseudonyms used in the data analysis and presentation of findings.

Content analysis was undertaken of all 70 reports in order to capture quantifiable

information. Reports were systematically examined using a content analysis template and

then organized and analyzed using the computer software package Nvivo 7. This analysis

provided a profile of cases, including details of type of application made, who was the

applicant and recommendation(s) made to the court. Content analysis was also used to

provide a profile of data relating to the children subject to proceedings and to examine the

representation of their voices in reports. Analysis focused particularly on relationships

between what was presented in reports in relation to domestic violence, children’s voices and

recommendations made.

In addition to the content analysis, a more inductive approach within a social

constructionist tradition was taken towards the qualitative analysis of report data. Enquiry

focused on how events and perspectives were discursively constructed within wider systemic

and social contexts, and how this might impact on social identities, practices, ideologies and

cultures. According to Wodak (2001),

In texts discursive differences are negotiated; they are governed by differences in

power which are themselves in part encoded in and determined by discourse and by

genre. Therefore texts are often sites of struggle in that they show traces of differing

discourses and ideologies contending and struggling for dominance (p. 11).

Consequently, it was decided to use principles of critical discourse analysis (CDA) to further

examine a small sub-sample of reports (Fairclough, 2001; Fairclough 2003). These reports

had been purposively selected from the larger sample because they were identified as

containing issues of serious and well evidenced domestic violence, including evidence from

external, independent sources as personal accounts, and could therefore be examined as

‘extreme examples’. Twelve reports were identified which fit these criteria. However, only

six of these reports were examined using CDA due to the labor and time intensive nature of

this type of in-depth analysis. These six reports were selected randomly from the sample of

12. Critical discourse analysis of these cases was based on an assumption that in cases where

the father’s violence was serious, undisputed and evidenced, protection of children and

mothers would take precedence within discursive practices, and this would be reflected in

recommendations.

This type of in-depth analysis provided extremely rich, detailed data, but the

limitations of such a small sub-sample are acknowledged. Therefore, these findings must be

viewed as illustrative rather than definitive. However, the data presented here, both in relation

to content analysis and critical discourse analysis, fits within and contributes to a widening

body of research evidence regarding how issues of domestic violence and children’s voices,

specifically in respect of children’s voiced experiences of violence, are incorporated and

influential (or not influential) within private family court processes and decision-making.

Results

Profile of Children

Content analysis of 70 reports provided information in relation to 147 children in total, 77

girls (52%) and 70 boys (48%). The majority of children in the sample were aged 10 to 15

years of age, closely followed by children aged five to nine years. Most children were

identified as White British. Religion was either not mentioned or was identified as ‘not an

issue’ in almost all the reports. Just over a third of the children were identified as having a

disability, mostly learning difficulties. For nine of these children educational needs were

linked to emotional and behavioral difficulties, including attention-deficit hyperactivity

disorder (ADHD).

All of the children included in this study were subject to private family court

proceedings at the time the s7 report was written. Content analysis of the full sample of 70

children identified that the majority of these children (82%) lived with their mothers and that

most court applications were made by non-resident fathers.10 In respect of contact with the

non-resident parent, similar numbers of children were not having any contact at the time the

report was written (45%) as were having regular or fairly regular contact (41%), whilst 16

children were having inconsistent contact and two children were having indirect contact (due

to the child living overseas in one case and court ordered in the other). In two reports it was

not clear if the children were having contact or not. Of the children not having any contact at

that time, the length of time since contact had taken place varied.

Inclusion of Children’s Perspectives

Content analysis of the 70 reports found that the vast majority of children (90%) had been

interviewed by a Cafcass CFR at least once as part of report preparation and over 50% had

been interviewed more than once. Reasons were provided where children had not been

interviewed, such as the child being too young (an infant) or because the child had been

interviewed recently as part of protracted proceedings. Children were interviewed in a variety

of locations and were often given choice over venue and whether or not they were

accompanied by anyone during the interview (e.g. parent, teacher). Most children were

interviewed alone. The vast majority of children interviewed were asked for their wishes and

feelings about residence and/or contact. Furthermore, consideration was given to most

children’s views to some extent, particularly in the case of older children.

The Impact of Children’s Perspectives on Recommendations

Content analysis of report recommendations provided evidence of a pro-contact stance across

the total sample, even in cases where domestic violence, and/or other types of abuse, was

clearly evidenced and/or where children opposed contact because of their father’s violence.11

The extent to which children’s voices were presented as determinate in recommendations was

very much linked to age, perceived competence and the apparent willfulness of the child.

Somewhat unsurprisingly, the voices of younger children with less perceived agency were

much less likely to feature in recommendations in an influential way. However, in cases

involving older children, particularly those voicing strong views, the child’s wishes were

more likely to have influence. Some children were viewed to be intractable in their current

position. Therefore, CFRs in such cases rationalized that going against the will of these

children was futile and likely to be unhelpful, if not detrimental, in respect of their welfare.

As such, CFRs took a practical, ‘what works’ type of approach to contact arrangements in

cases where it was perceived that children would go against any court order to the contrary of

their wishes. For example,

Given the expressed wishes of the children, I can make no recommendation

for a contact order to take place (report 217).

Given that Evan and Lachlan wish to see their father and are of an age where they

can vote with their feet and, indeed, have already done so, I am not confident that any

Court Order will be workable and therefore effective (report 017).

The representation of children’s voices and how they were used in recommendations

was also very much affected by whether or not a child wanted to have contact. Children’s

voiced expressions in favor of contact were represented as straightforward, and therefore

positively influential in recommendations. However, children’s opposition to contact was

routinely viewed and treated as problematic. In cases where a child’s intractable will in favor

of contact was presented as determinant in the recommendation, this was never challenged on

the basis that contact might be injurious to child welfare. In these cases the child’s wishes

were used prominently to rationalize and support a recommendation of contact. Conversely,

where a child expressed a wish for no contact their perspective was routinely constructed as

problematic and obstructive, even if the child expressed fear of their father due to experiences

of violence. Across the reports sample there was a strong sense of needing to adjust how

these children viewed their father, in order to promote contact.

Where children were steadfastly opposed to contact, recommendations were

frequently made of indirect contact as an interim measure to re-build the father-child

relationship, with the view to progressing to direct contact in the future. In ten out of twelve

reports where indirect contact had been recommended it had been conceded by CFRs that

direct contact was ‘unworkable’ at that time because of the child’s intractable opposition to it.

In these cases a total of fifteen children, ranging in age from seven to 16 years, had voiced a

direct refusal to have contact or expressed clear concerns or distress regarding contact.

Children stated in most of these cases that they did not want to see their father because of his

violent behavior or because they were afraid of him. Two younger children (both aged seven

years) were also presenting as distressed at home and school as a result of contact with a

violent father. Consequently, direct contact in these ten reports was described as unachievable

at that time and indirect contact recommended instead on the grounds that this would at least

promote an ongoing relationship between child and father, in hope that this would lead to

direct contact in the future. For example,

…an order should allow for Ophelia to resume direct contact at an appropriate

time without an order being too prescriptive. In the meantime I recommend that

father should have indirect contact via cards/letters and, if possible, mobile

‘phone texting at regular intervals (report 019).

It appears that the best way forward may be that (father) continues to write to

Nicholas. In time with the pressure off, I would hope that Nicholas will then want to

resume his relationship with his father (report 043).

Some of the children who did not want contact with their fathers stated that this was

because they did not have, or want, a relationship with their father. Despite this,

recommendations generally included the view that relationships could and should be built and

opportunities for future reconciliations be pursued, whether the child was in favor of this or

not. Such logic is based on the assumption that children do not necessarily know what is best

for them, and in time, may regret the loss of the father relationship. Therefore, decisions need

to be made which protect children from making decisions in childhood they later regret. For

example, in the case of 11 year old Katie, who did not wish to have any contact at all with her

father on the basis that they did not have an existing relationship and because her father had

previously been violent to her mother, the CFR concluded,

In all the circumstances of this case, I suggest that indirect contact in the form of

letters, cards, gifts, photographs and school reports continue as previously ordered. I

also suggest that on two occasions a year, Katie’s father is allowed to ask her if she

would like a direct contact visit. It may be that communication via e-mail would be

most appropriate on those occasions. This would provide Katie with the opportunity

to develop a relationship with her father should she wish to in the future. She is very

keen to avoid further court applications. It is hoped that this is a way of doing so

whilst keeping the contact door open during the remainder of Katie’s childhood

(report 221).

The CFR acknowledged that Katie was disappointed by this recommendation as she had

clearly expressed a wish for no contact at all. Similarly, in report 010, the child’s wish to not

have contact is accommodated in that it is not recommended that they be forced to have direct

contact against their will. But, their voice is not sufficient to rule out the hope of future

contact, which is judged to be in their long-term ‘best interests’,

It is clearly in the interests of ‘the child’ to maintain an open channel of

communication at some level in order to accommodate for child’s needs and wishes

which may change with time… It is very much to be hoped that sufficient sensitivity

can be exercised such that a positive connection can be promoted, rather than lost

forever (report 010).

Critical Discourse Analysis of a sub-sample of six reports containing evidence of

serious domestic violence and child abuse included recommendations for direct contact,

indirect contact and no contact based on children’s expressed wishes and feelings. Two of

these reports did not include children’s voices in the recommendations, presumably due to the

young age of the children involved. However, children’s voices were prominent in the other

four reports, although presented and used quite distinctly according to whether or not children

wanted contact. This distinction was encapsulated quite nicely in the case of Hannah and

Lydia, 8 year old twins, who had different perspectives on contact (report 212). Hannah’s

wish for contact with her father was presented as uncomplicated and there was no further

discussion with Hannah regarding her feelings about her father, contact or any issues of

domestic violence. On the other hand, Lydia’s opposition to contact was constructed as

problematic and in need of correction. Lydia had stated that contact was ‘giving her a

headache and making her frightened’, but the root of Lydia’s fears and anxieties were not

explored. Contact was recommended for both children on the basis that,

Children need to maintain relationships with their paternal family in order to

enhance their development in terms of identity and sense of belonging, but, this

should not be at a level this [sic] is detrimental to them or causes them distress or

fear (report 212).

It was recognized, however, that it would not be in Lydia’s best interests to force her to have

direct contact straightaway. Therefore, it was conceded that Lydia have indirect contact until

such time that she felt willing to resume direct contact. It was recommended that direct

contact recommence for Hannah as soon as possible. Consideration of the children’s wishes

and feelings contributed to the recommendation in this case, but only as far as they met with

the long-term goal to restore contact between father and children.

The remaining three reports contained recommendations based on the children’s

expressed wishes and feelings. Whilst this could be viewed as CRFs taking a ‘children’s

rights’ perspective, recommendations were presented as pragmatic solutions where it was felt

that older children would ‘vote with their feet’ if a court order were to go against their

wishes. Therefore, contact was considered to not be possible in two reports, albeit reluctantly.

Despite the strength of children’s feelings, and what they had experienced in respect of

domestic violence and child abuse, future contact was not ruled out. Conversely, one

recommendation was hopeful in this respect,

I believe the children should meet with their father as soon as they feel able with both

parties acknowledging the need for Charlie and Matilda to rebuild their relationship

with their father and his family with their safety and security given paramount

importance by both parties (217).

As could be seen in the Lydia’s case, children’s voices were heard and taken into account to

an extent, but were not treated as sufficient in respect of knowing what was best for their

long-term welfare.

The short-term, pragmatic approach taken by CFRs dealing with (older) children with

intractable views on contact meant that recommendations were focused on immediate,

workable solutions, with the hope of future contact. However, detailed discussion of what

might be required to ensure safe contact which would be experienced positively by the

children was absent.

Children’s Experiences of Violence

Whilst almost all children were asked to provide their wishes and feelings in relation to

contact, content analysis identified that children’s voiced experiences of violence were not

routinely included in the s7 reports across the total sample. It was not necessarily clear from

the way information was presented what CFRs asked children or whether information was

volunteered. Where children did disclose experiences of violence, either as witnesses or as

direct victims, these accounts did not necessarily factor in report recommendations and were

not as influential as children’s stated preferences regarding contact arrangements, as outlined

above. Frequently children’s accounts of violence simply disappeared from the

recommendations section of reports or risks were discussed in abstract.

All 11 children included in the small sub-sample of reports which was examined in

depth using CDA made disclosures regarding their fathers’ violence or abuse, although

accounts were very brief in some cases. Seven children – Mia (report 002), Vanessa and Evan

(report 017), Khalid, Labaan and Amina (report 025) and Matilda (report 217) – disclosed

information to the CFR which identified them as direct witnesses of their father’s violence

against their mothers, for example:

He [Evan, 13 years] recalled seeing his father being verbally and physically

aggressive towards his mother when drunk (report 017).

During my interview with Matilda [13 years] it became apparent to me that she has

seen her mother hit (report 217).

Five of these children, Mia, Vanessa, Khalid, Labaan and Matilda, also disclosed that they

had been direct victims of their fathers’ violence as well as witness to violence against their

mothers, for example:

She [Mia, 7 years] said she remembers daddy pulling mum’s hair and throwing tea

over Mia herself. She said she remembered some bad things happening, but still said

she would like to see her daddy some time (report 002).

Khalid [14 years] told me that he, and his brother, were both beaten with a belt and

that his mother used to be hit frequently, on one occasion, with a metal bar. He also

recalls an occasion when [father] bent his fingers back and caused great pain…

(report 025).

Other children, Emily (report 045) and Charlie (report 217), talked about how they had

witnessed their fathers’ anger and aggression,

She [Emily, aged 7 years] spoke of her father smashing his phone at the weekends

when he was angry with Mum (report 045).

Charlie [10 years old] told me that when he comes out of school “Dad will be waiting

at school, then follows us home”...Charlie has described his father as angry a lot of

the time (217).

Twins Hannah and Lydia had been aware of their father’s violence against their mother even

though they had not witnessed it directly. Lydia [8 years] talked to the CFR about how her

father’s aggression ‘frightened her’ and that she was ‘struggling sleeping as everything about

contact is giving her a headache and making her frightened’ (report 212). To varying extents,

all of these children disclosed information in their accounts to the CFR that identified them as

victims of their father’s violence.

Children’s statements about violence they had witnessed and/or been subject to

directly were brief on the whole. There was little to no evidence in these reports of CFRs

exploring or responding to children’s disclosures. Rather, children’s statements were

presented in a factual and ‘objective’ manner with no comment. Furthermore, what children

disclosed about domestic violence and child abuse was not routinely or explicitly included in

conclusions drawn about child welfare, and disappeared completely from all report

recommendations about contact and future action. In the case of younger children, such as

Mia and Emily (both aged 7 years) this may have been due to judgements made about having

the necessary competence to contribute to the decision-making process. However, even

where much older children were involved, their disclosures of violence did not feature in

report recommendations. Recommendations were based on children’s voiced obduracy,

whether in favor of or opposed to contact, regardless of what they said in relation to being

victims of violence. There was no reference made in any of the sub-sample reports as to

reasons why children might appropriately resist contact, such as self-protection or fear. Nor

was there any consideration of how what children said about their experiences of violence

constituted reason to examine how to make contact safe. For example, in report 025 all three

children voiced strenuous opposition to contact, and as a result it was recommended that,

Given the hostility the children feel and their clear statements that they do not wish

for contact of any kind with [father] the Court might consider refusing

contact at this time (report 025).

However, no mention was made in the recommendation of the serious violence the children

had been witness to and had directly experienced. Does this mean that contact may have been

recommended if the children had wanted it? This was one of the very few recommendations

across the entire sample in which consideration was given to potentially refusing contact.

However, the language used by the CFR frames this recommendation as responding

pragmatically to children’s wishes, rather than really being about children’s rights or what

might be safe and beneficial for these children. On the whole, recommendations about

contact were much more focused on the practicalities of ‘making contact work’, than the

actual ‘best interests’ of individual children and, if it was conceded that working contact was

not possible at that time, how to progress towards direct contact.

Summary of Findings

None of the sub-sample report recommendations stated that contact should be refused

because of the risks presented by father or because of children’s legitimate fears regarding

contact. Children’s voiced experiences of violence were disregarded in report

recommendations, and therefore treated as irrelevant or invalid. Instead, children’s voices

were used selectively, to support contact recommendations where children stated they wanted

contact, but constructed as problematic in cases where children did not want contact. The

wishes and feelings of children who stated they did not want contact were viewed as the site

of required change, in order that contact might be pursued. Recognition of fathers needing to

change their behavior was minimal or absent. In the one report where it was recommended

that it might be considered that contact be refused, this was framed as being a result of the

children’s intractable opposition to contact, but without acknowledgement of the children’s

voiced experiences of father’s violence, the potential risks posed by contact or that opposition

to contact was a valid response to what the children had experienced and expressed.

Discussion

Content analysis identified that children’s perspectives on contact and residence were

routinely collected and presented in reports, and appeared influential on recommendations in

some cases. However, the extent to which children’s views were determinant was dependent

on a number of issues, including age, perceived maturity and apparent ‘willfulness’, that is

whether or not it was judged that a child (particularly older children) would cooperate with a

court order. Moreover, children wanting contact were viewed differently to those who

opposed contact. Critical Discourse Analysis of a small sub-sample of reports identified a

‘selective approach’ taken towards children’s voices, where they were more likely to be

straightforwardly influential if the child stated they wanted contact but viewed as problematic

if they refused contact (Coy et al., 2012; Holt, 2011; Mullender, et al., 2002). Furthermore,

children’s voiced experiences of violence did not routinely feature in reports. Where

children’s accounts of violence were included they were usually brief and had little to no

impact on recommendations, meaning that children’s voiced experiences of violence were

disregarded, even in the most extreme and serious cases of domestic violence.

The disappearance of children’s voiced experiences of violence can be explained in

part by CFRs taking an impartial approach to ascertaining children’s views, whereby

children’s statements were collected and reported with little discussion of what their

disclosures might mean for risk assessment. Whilst writing styles varied to some extent

between different CFRs, mostly reports were written using this approach, reflecting the

professional expectation to remain impartial. Whether the CFR included verbatim quotes

from children or abbreviated what had been said, children’s wishes and feelings were

collected and reported in a way which presented as attempts to be ‘objective’ or ‘truthful’.

However, this distanced and neutral approach fails to fully appreciate the complexities and

nuances of individual children’s voices and circumstances. It also fails to acknowledge the

processes of interpretation and translation that inevitably children’s voices are subjected to

when represented by CFRs steeped in professional and personal knowledge and beliefs, and

constrained by legal and structural expectations and norms.

Collecting and reporting children’s voices without comment or analysis is insufficient

(Handley & Doyle, 2014; James, 2007) and makes it all too easy to disregard or manipulate

those voices which fall outside of acceptable discourses. Children’s divergences from the

preferred contact ideal were viewed and treated as disruptive and in need of repair. Rather

than engaging meaningfully with the child’s voice and understanding their position, the CFR

can be seen to be shaping the child’s voice, and trying to move the child to a preferred

position (Caffrey, 2013). A ‘children’s rights’ perspective was used to frame pragmatic

decision-making; but this fails to fully grapple with the complexities of individual children’s

positions. Without thorough and critically aware examination of children’s voices in all their

intricacies and nuances, the contribution of these voices to decision-making is inevitably

diluted or restrained. As stated by Eriksson and Nasman (2008), CFRs need to be involved in

‘an active dialogue’ with children ‘with the purpose of developing a mutual understanding in

a relationship of trust’ (p. 266). Unfortunately, CFRs are limited in their ability to build the

necessary relationships with children to achieve this due to time and resource constraints.

Children were visible in reports as victims through their own disclosures (Eriksson &

Nasman, 2008), but their voiced experiences of violence were routinely disregarded within

recommendations. It is argued that failing to respond to a child’s disclosure of abuse

reinforces that child’s victim status and their position of passivity and powerlessness. In

effect what children said about their experiences of violence was dismissed or ‘disqualified’

(Eriksson & Nasman, 2008). This places the child in a position of ‘unprotected victim’, since

responding to what children disclose should form an important part of safeguarding processes

(Eriksson & Nasman, 2008). What children said about contact was privileged over what they

disclosed about violence, arguably because experiences of violence make the pursuit of

contact more problematic.

Content and discourse analysis of reports found a predominant emphasis across the

whole sample on preserving or promoting the relationship between children and their fathers

(Macdonald, 2016). The importance placed on this relationship was such that children’s

perspectives, including disclosures of violence, were routinely framed in such a way as to

promote contact, or to not impede the pursuit of contact. Thus, accounts of violence were

minimized or disappeared from recommendations. A prevalent sense that some father

involvement, despite his violence, the impact of this and any potential risks associated with

this, is better than no involvement in children’s lives was identified throughout the reports

sample (Macdonald, 2016). This contradicts research evidence which stresses the importance

of quality of contact over quantity and that ‘mere presence of fathers in children’s lives is not

enough’ to promote children’s wellbeing (Pryor & Rodgers, 2001:3). Conversely, the

research presented here found a pervasive sense of optimism in relation to future contact was

regularly conveyed without reference to safeguarding concerns or practical risk management

strategies. In cases where some acknowledgement of safety issues was noted, proper

consideration of how to ensure safe and beneficial contact, taking into account children’s

accounts of violence, was glaringly absent from recommendations (Macdonald, 2016).

The potential loss of the relationship between children and their fathers was presented

as a highly undesirable position, unacceptable even, with the focus instead being firmly

placed on strengthening this relationship and promoting contact in almost all cases

(Macdonald, 2016). Therefore, the research presented and discussed here contributes to a

growing body of evidence that highlights a persistent culture of ‘contact at all costs’ (Hunter

& Barnett, 2013). Rather than only promoting contact that is safe and positive for individual

children, child welfare has become synonymous with contact with fathers, meaning that risk

factors are minimized or ignored (Kaganas & Day Sclater, 2004). Despite children’s voices

having apparent influence in recommendations, this is only in so far as they fit within, or can

be shaped to fit within, an overriding pursuit of contact with fathers (Macdonald, 2016).

The courts’ preoccupation with achieving working contact arrangements at the

expense of considerations of safety is a common theme across international research

examining family court practices; for example, studies in the USA (Rivera, Zeoli, & Sullivan,

2012; Zeoli, Rivera, Sullivan, & Kubiak, 2013), Australia (Bagshaw, Brown, Wendt,

Campbell, McInnes, Tinning, et al., 2011; Kaspiew, Gray, Weston, Moloney, Hand, Qu, et

al., 2009; Kaye, Stubbs, & Tolmie, 2008) Ireland (Holt, 2011) as well as England (Barnett,

2014; Caffrey; 2013, 2015; Trinder, Firth, & Jenks, 2009) persistently highlight how issues of

risk and safety are routinely marginalized and accounts of violence reframed in order to

facilitate the promotion of contact.

In the Australian context, some improvement has been seen recently following family

law amendments to address issues of violence and risk in child arrangement cases (Kaspiew,

Carson, Dunstan, Qu, Horsfall, De Maio, et al., 2015). Previously in Australia a statutory

provision for shared parental care/involvement following separation had been interpreted too

prescriptively by judges to mean dividing time equally between parents at the expense of

considerations of safety and wellbeing. This was shown to be an overly rigid approach with

damaging consequences for individual children (Chisholm, 2009; Kaspiew, et al., 2009). As a

result substantial amendments have been made to prioritize safety over seeking a ‘meaningful

relationship’ at all costs. Despite this, and the Family Law Review (MoJ & DfE, 2011) using

the Australian experience to advise against putting a presumption of shared parenting into

statute, the UK government recently created a statutory presumption of shared parental

involvement following separation in England and Wales (Children and Families Act 2014).

We are yet to see detailed empirical evidence of the consequences of this legal reform.

However, Women’s Aid have highlighted child contact as the current primary concern raised

by domestic violence survivors and women’s support agencies, resulting in their Child First

Campaign (2016).12

Limitations

It is acknowledged that this article is based upon analysis of reports which were written 9-10

years ago. However, the relevance of these findings remains pertinent. Recent studies

continue to identify the dominance of the pro-contact ideology at the expense of safeguarding

concerns in domestic violence cases (Barnett, 2014; Coy et al., 2012; Harding & Newnham,

2015; Holt, 2011). Barnett (2014) found that despite the introduction in 2008, and later

revision, of Practice Direction 12J, designed specifically to strengthen the requirements made

of the family courts in domestic violence cases, the de facto presumption of contact remains

intact and the parenting capacity of domestic violence perpetrators is rarely called into

question. Furthermore, children’s voiced opposition to contact continues to be usurped by the

overriding goal of achieving contact arrangements (Coy et al., 2012; Harding & Newnham,

2015; Holt, 2011). While the data on which this article is based is now rather dated, this study

and its findings can be placed within the wider evidence and remains extremely relevant as a

specific and detailed examination of the underlying causes of and mechanisms by which

contact is pursued at all costs and children’s voices are lost. In light of recent legislative and

policy developments in England and Wales, and persistent concerns regarding domestic

violence, children’s voices and child contact, it is extremely timely to re-visit detailed and in-

depth analysis of Cafcass reports and family court processes, based on this earlier work,

which the author and others are currently working on.

The size of the sub-sample of reports analyzed using critical discourse analysis is also

an acknowledged limitation in respect of the generalizability of the study’s findings.

However, it is not intended that these findings be generalizable in respect of populations, but

rather to make an important contribution to the development of applied theoretical thinking

and, consequently, to improve practice. Critical discourse analysis is inherently limited in

respect of sample size due to its in-depth and intensive nature. However, such deep and

intense analysis enables detailed examination of the wider social discourses at play, and this

CDA of S7 reports contributes a new perspective to the existing knowledge base, providing

explanation of how the pro-contact ideology persists at the expense of children’s voices and

safeguarding concerns.

Conclusion

Across the sub-sample of reports a pattern was identified in which children’s wishes and

feelings about contact were used selectively and their voiced experiences of violence

disregarded as part of a ‘pro-contact’ ideology regarding children’s welfare and relationships

with fathers. This shows that despite increased commitment to including children’s

perspectives in legal decision-making, children’s voices continue to be subject to other more

powerful social and legal discourses concerning fathers’ centrality in children’s welfare.

Consequently, in practice, voices that do not fit with prevailing ideologies and ideals are

marginalized and disregarded (Caffrey, 2013; Holt, 2011). The de facto presumption of

contact continues to reign in all but the most exceptional of cases (Macdonald, 2016). This is

because of what Kaganas and Day Sclater (2004) describe as the ‘incontestable truth’ of the

benefits of contact, based on dominant assumptions about the heteronormative family and

ongoing family relationships, which has become ‘embedded in the law’ (p. 4-5). The

hegemonic status of the pro-contact assumption is not supported by a united evidence base.

Rather, this presumption reflects deeply embedded socially, culturally and politically

constructed values and norms concerning heteronormative families and gendered roles, rights

and power relations in society; making it virtually impossible for alternative discourses

concerning women and children’s safety to divert the ideological juggernaut of contact with

fathers. Whilst legal changes and amendments can clearly have an impact, as demonstrated in

the Australian context, it is argued here that policy developments, practice directives and

guidance are not enough. To overcome the 'contact at all costs' approach (Hunter & Barnet,

2013) there needs to be a cultural shift in beliefs and attitudes regarding the universality of

‘child welfare’ in relation to the involvement of fathers (Barnett, 2014, Macdonald, 2016).

Only by entertaining the possibility of different constructions of ‘children’ and ‘child

welfare’ can the individual child’s voice be truly heard. Furthermore, it must be actively

recognized in practice, as well as in policy, that domestic violence constitutes a ‘significant

failure of parenting’ (Sturge & Glaser, 2000), and as such should always be at the forefront of

decision-making in cases where it features. Contact must be proven to be safe, but also to be

beneficial to individual children, in the short term and also over time, recognizing that

children’s needs and perspectives may change as they grow and relationships change. To

achieve this involves really hearing children’s voices in all their complexities, and

considering these within the context of a fully developed and gendered understanding of the

violence experienced, acknowledging the persistent impacts of abusive relationships. Only

then might the ‘incontestable truth’ of the universal benefits of contact be challenged, and

different constructions of child welfare, which involve children’s voices in meaningful ways,

be possible.

Notes

1. Based on a presentation given at the 13th ISPCAN European Conference in Dublin,

September 2013.

2. In almost all cases the non-resident parents were fathers.

3. The recently enacted Children and Families Act 2014 has replaced the legal terms

‘Contact’ and ‘Residence’ with the broader term ‘Child Arrangements Order’ to refer to any

order regulating arrangements relating to any of the following –

(a) with whom a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person

(s12 Children and Families Act 2014).

However, the terms contact and residence are used when describing data to reflect the period

in which the empirical research was undertaken.

4. Whilst there is no legal definition of welfare, the welfare checklist (s1(3) Children Act

1989) provides the legal criteria the court and Cafcass must have regard to in family court

proceedings, including,

The ascertainable wishes and feelings of the child concerned (considered in the light

of his age and understanding).

(S1(3) Children Act 1989)

5. For example, Re A.v.Y (Child’s Surname) [1999] 2 FLR 5.

6. Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124

7. Research by Hunt and Macleod (2008) found no evidence of bias against fathers in private

family court proceedings.

8. Re. L (A Child) (Contact: Domestic Violence); Re V (A Child) (Contact: Domestic

Violence); Re M (A Child) (Contact: Domestic Violence) and Re H (Children) (Contact:

Domestic Violence) [2000] 2 FLR 334

9. Practice Direction 12J – Residence and Contact Orders: Domestic Violence and Harm

(PD12J).

10. This reflects other research profiling contact and residence cases (Smart, May, Wade, &

Furniss, 2003; Trinder, Connolly, Kellett, & Notley, 2005).

11. Detailed data regarding recommendations is presented and discussed in Macdonald

(2016).

12. https://www.womensaid.org.uk/childfirst/

Funding

This work was supported by an ESRC and Cafcass 1+3 PhD CASE Studentship.

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