Contact at all costs?: Domestic violence child contact and the practices of the family courts and professionals

Abstract

This thesis explores the practices and perceptions of the courts and professionals in child contact proceedings where domestic violence is an issue and the implications of this for mothers, with particular reference to Practice Direction 12J which establishes the framework for best practice to be followed in such proceedings. In-depth interviews were undertaken with 29 family lawyers and Cafcass officers covering a broad geographic and demographic area, and the reported cases to which the Practice Direction applies were reviewed. The resulting data were analysed utilising discourse analytic and qualitative approaches, drawing on a feminist poststructuralist approach and also insights from autopoietic theory. It was found that the ‘presumption of contact’ and an acontextual, legalistic approach to domestic violence reinforce each other and have a powerful normative influence on professional and judicial perceptions and practices. Dominant parental subjectivities of ‘implacably hostile mothers’ and ‘safe family men’ continue to resonate with many courts and professionals, who focus on promoting contact rather than safeguarding mothers and children. Despite more judges and professionals gaining a broader understanding of the coercively controlling nature of domestic violence, only recent, very severe physical violence warrants the holding of fact-finding hearings on disputed allegations and provides sufficiently ‘cogent’ reasons for family lawyers to support mothers in opposing contact and for courts to refuse contact. The notion that domestic violence is morally reprehensible and a significant failure in parenting, and that women’s desires for safety, wellbeing and autonomy are morally legitimate, finds very little expression. This study concludes that in order to regain a valid and authoritative voice for women in current family law we need to expose and disrupt law’s construction of the ‘scientific truth’ about children’s welfare, the dominant parental subjectivities to which it gives rise, and the ‘safe haven’ of law’s ideal post-separation family.