SUBMISSION BY THE CHILDREN’S LAW CENTRE TO TACKLING VIOLENCE IN THE HOME; THE GOVERNMENT’S PROPOSALS ON DOMESTIC VIOLENCE IN NORTHERN IRELAND

INTRODUCTION

The Children’s Law Centre is an independent charity set up in September 1997 to advise children, their parents/carers and professionals about the law relating to children in Northern Ireland and about children’s rights from a domestic and international perspective.

There are currently ten full time members of staff employed at the Centre and one part time member. The staff is comprised of the Director, two solicitors, training co coordinator, international human rights adviser, advice line co coordinator, advice worker, youth rights worker, researcher, education advisory teacher, secretary receptionist and part time administrator.


CHILDREN AND YOUNG PEOPLE AND DOMESTIC VIOLENCE/THE IMPLICATIONS OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

It is our view that discussion about tackling domestic violence which impacts on children and young people should be set within the framework of the United Nations Convention on the Rights of the Child and also should take into consideration the recommendations of the United Nations Committee on the Rights of the Child.

Background to the United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (The UNCRC) was adopted by the General Assembly of the United Nations on 20 November 1989 and was ratified by the UK Government on 16 December 1991.

The UK Government has therefore given a commitment to implement the terms of the Convention by ensuring that UK law, policy and practice relating to children is in conformity with Convention standards.

Every 5 years the governments of signatory states are required to lodge a report with The United Nations Committee on the Rights of the Child about progress on the implementation of the Convention and hearings are held in Geneva where the Government is cross examined. Non - governmental organisations may also lodge reports about their concerns regarding implementation.

The key principles of the UNCRC which are relevant in the context of tackling domestic violence are set out below;


Key Principles of the Convention

ARTICLE 2

“ State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his /her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

ARTICLE 3

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”


ARTICLE 9

The Convention provides at Article 9 that all children shall have the right not to be separated from their parent/s against their will except when competent authorities decide that it is in the child’s best interests to do so. It is also quite clearly stated that a child has the right to maintain personal relations and direct contact with both parents unless it is contrary to the child’s best interests. These principles are broadly reflected in the Children (NI) Order 1995. The right to family life however must be read in conjunction with the right to protection at Article 19.

ARTICLE 12

“ State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose the child shall be given the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body in a manner consistent with the procedural rules of national law.”



ARTICLE 19

“State Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all types of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parents, legal guardians or any other persons.”


Relevant Recommendations of the United Nations Committee on the Rights of the Child

The United Nations Committee on the Rights of the Child in their Concluding Observations in October 2002 recommended that the principle of the best interests of the child should be enshrined as the paramount consideration in all legislation and policy affecting children and young people. The Committee also recommended that steps should be taken by government to ensure that legislation governing procedures in courts and administrative proceedings ensure that children/young people can form and express their own views and that these views are given due weight. The Committee expressed concern about violence in the home against children within families and recommended that the reporting system should be strengthened through training with professionals in the identification, reporting and management of cases of ill treatment and that disaggregated data should be collected on all young people under 18, including the most vulnerable groups, which could then be used to assess progress and design policies to implement the UNCRC.


RESPONSE TO “DOMESTIC VIOLENCE IN NORTHERN IRELAND”


QUESTION 1 – SHOULD WE USE THE DEFINITION AGREED AND USED BY THE REGIONAL FORUM OR SHOULD WE DEVISE A NEW COMMON DEFINTION TO BE ADOPTED BY ALL AGENCIES IN NORTHERN IRELAND?


It is noted that recent research has indicated that a minimum of 11,000 children living in Northern Ireland are living in a domestic violence situation. The research excludes children from families where the perpetrator or victim has not come into contact with the statutory services or where children and young people and their families have not disclosed the domestic violence. The research states that the issue of under reporting remains of fundamental concern and on this basis the figure of 11 000 should be treated with caution as only a limited proportion of all domestic violence cases present to statutory agencies . The research also acknowledges that although there are a minimum of 11 000 child victims of domestic violence, this figure is likely to be “the tip of the iceberg”.

The report “Caught in the Middle” outlines the main impact of domestic violence on children as follows:

“Being caught in the middle of domestic violence can have adverse effects on a child. We have already discovered that conflict in the home has been ranked as one of the top causes of stress in children’s lives. It is important however to remember that every child’s experience of this conflict will be different and every child will utilise different coping mechanisms to deal with the situation. The research which has been conducted in this area has shown that children suffer a wide range of both physical and emotional effects as a result of domestic violence. Children’s exposure to violence has also been researched in relation to the impact it may have on a child’s schooling. Hughes (1986) found that children often had difficulties academically as a result of violence in the home. Overall effects included school phobia and difficulties in concentration Mc Kay (1981) described children as being aggressive with peers, rebelling against adult instruction and authority and being unwilling to do schoolwork.”

The research by Humphreys and Mullender (page 13) concludes from an overview of 84 studies in the area that children and young people can suffer the effects of domestic violence in a number of different ways, which include 1) an impact on their behaviour and emotional well being and 2) an effect on their cognitive abilities and attitudes. Although they conclude that the evidence collated detailing the effects of domestic violence on children’s academic or cognitive abilities is conflicting, the issue of transport to school was always of immediate concern when the children have to leave home or move into a refuge. Humphreys and Mullender conclude that “the practical implications of the effects on children of domestic violence raise a number of issues, including the need for individualised and age appropriate assessments, acknowledgment of the trauma which may be associated with witnessing domestic violence, the need for particular vigilance where children are both witnessing and experiencing other direct forms of abuse, attention to schooling and the need to assess and respond to the educational needs of some children who have been living with domestic violence”.

Recommendation: In light of these figures and in light of the research which has been conducted about the serious impact of domestic violence on children and young people we are of the view that the current definition of domestic violence should be revised to incorporate a clear statement and acknowledgment about the impact of domestic violence on children and young people.

QUESTION 2

WHAT PERFORMANCE INDICATORS ARE MOST APPROPRIATE FOR USE TO ASSESS THE EFFECTIVENESS OF A NEW DOMESTIC VIOLENCE STRATEGY IN NORTHERN IRELAND

We note the recommendations made in the recent research entitled “Children in Northern Ireland” and the recommendations by the United Nations Committee on the Rights of the Child in respect of data collection and monitoring.

Recommendation: We would suggest that it will not be possible to assess the effectiveness of the domestic violence strategy unless proper recording systems are implemented more particularly recording details in relation to the impact of domestic violence on children and young people.

QUESTION 4

WHAT ARE THE MOST EFFECTIVE WAYS OF TEACHING CHILDREN AND YOUNG PEOPLE ABOUT DOMESTIC VIOLENCE?

Young people throughout research have stated that they would like to learn more about domestic violence.

Recommendation: It is our view that issues relating to domestic violence could be incorporated into the curriculum for schools in the way suggested in the consultation paper, but as is pointed out by Humphreys and Hollander in their research, care needs to be taken to ensure that teachers are adequately prepared to deal with any child protection matters arising in the course of discussions with children and young people which may have to be dealt with under the schools’ child protection/pastoral care policies and that schools have established links with local voluntary and statutory organisations who can provide support in individual cases. We have noted with interest the innovative measures taken in Fife where a youth strategy was built into a wider zero tolerance campaign using a theatre production, a youth conference, peer education and a rock concert. It may also be possible for awareness raising programmes to take place through youth clubs.


QUESTION 6 and QUESTION 12

IS THERE A NEED FOR A MEDIA/PUBLIC INFORMATION CAMPAIGN?
WHAT IS THE BEST WAY OF PROVIDING INFORMATION QUICKLY, SAFELY AND EASILY TO VICTIMS OF DOMESTIC VIOLENCE?

It is our view that there needs to be a Northern Ireland wide information campaign to help children and young people living in domestic violence situations. This should be accompanied by information leaflets for children and young people which should clearly outline their rights under the Family Homes and Domestic Violence (NI) Order 1998 and the Children (NI) Order 1995 and also provide contact telephone numbers where help can be accessed. The materials need to be designed in consultation with children and young people, should be available in schools and youth clubs or by calling all children’s advice and help lines in Northern Ireland and should be accompanied by a television campaign.

QUESTION 14 WHAT FURTHER STEPS SHOULD BE TAKEN TO INCREASE OVERALL AWARENESS OF CRIMINAL JUSTICE BODIES OF ISSUES RELATING TO DOMESTIC VIOLENCE

It is our view that specialised training in relation to the legal remedies available for children and young people and also the effects of domestic violence on children and young people should be conducted with magistrates, lay magistrates, solicitors, PSNI and court staff. Such training could be incorporated with training on contact and domestic violence, the Re L guidelines and general training on the United Nations Convention on the Rights of the Child.

QUESTION 25 AND QUESTION 27

We would agree that cousins should be included in the definition of associated persons and that the existing anomaly in relation to sister in law relationships should be remedied. Also, same sex couples should be able to seek protection under the category of cohabitees and should be able to seek occupation orders.

QUESTION 29

We note the decision of the High Court in Re Glennon (2002) where it was confirmed that a magistrate has jurisdiction to include an exclusion zone when granting a non molestation order. For clarification purposes, it is our view that the legislation should be amended to allow for the attachment of an exclusion zone to a non molestation order as well as to an occupation order.


QUESTION 41 HOW CAN THE COURT PROCESS BE FURTHER IMPROVED TO SUPPORT VICTIMS OF DOMESTIC VIOLENCE AND THEIR FAMILIES

Participation of Children and Young People

Article 12 of the UNCRC states that it is the child’s right (if capable of forming his/her own views) to express those views in all matters concerning them.

In order to comply with the requirements of article 12 UNCRC, it is very important in terms of court procedures to be followed, in cases where children and young people are involved, that mechanisms are developed for their voices to be heard and their views imparted. At present, in private law proceedings (family law) such as residence and contact, there is no provision for the child to be separately represented in the family proceedings courts. Where a child or young person has expressed a view regarding contact, these views should be recorded/documented by a court welfare officer or social worker who is appointed to the case and provided for consideration to the court.

The court is obliged under the Children (NI) Order to have regard to what is known as the welfare checklist and to the best interests of the child. One of the matters which must be considered is the ascertainable wishes and feelings of the child. Pursuant to the Family Homes and Domestic Violence (NI) Order 1998 the court is obliged in relation to contact to consider whether the child has suffered or is at risk of suffering any harm through seeing or hearing ill treatment of another person by “the prohibited person”.

It is therefore essential that there is a mechanism in these types of cases where the child’s views can be carefully assessed in a meaningful way and presented to the court.

Unfortunately, article 36 of the Family Homes and Domestic Violence (NI) Order 1998 which allowed for separate representation of children in cases was not brought into force. Humphreys and Mullender have indicated that children have stated that they want to be listened to, to be taken seriously, to be involved in what is going on and to be involved in decisions. They often do not feel they are noticed, believed or supported in their own right.

Recommendation: To ensure compliance with article 12 UNCRC and with the recommendations of the United Nations Committee on the Rights of the Child, the Children’s Law Centre would support consultation at an early date about the implementation of article 36 of the Family Homes and Domestic Violence (NI) Order 1998, with a view to commencing this article as soon as possible.

On a wider scale government departments and boards/trusts should consider the ways in which children and young people can contribute in a meaningful way to the development of policy and practice and planning of services for children and young people affected by domestic violence.

Recommendation: The Children’s Law Centre recommends that in order to give effect to article 12 UNCRC and to section 75 of the Northern Ireland Act 1998, that consultation should take place with children and young people who have been through the court process about their experiences and that these views should inform this consultation process.


QUESTION 45 IS CURRENT PROVISION COVERING CHILD CONTACT ARRANGEMENTS SUFFICIENT, AND DOES IT OFFER ADEQUATE PROTECTION TO VULNERABLE CHILDREN?

QUESTION 46 ARE ANY STEPS NECESSARY TO FURTHER PROTECT CHILDREN THROUGH CHANGES IN CHILD CONTACT ARRANGEMENTS?

We believe that child contact centres play an invaluable role in Northern Ireland and should be financially supported by government. In addition to more contact centres, it would be in the best interests of some of the children and young people who are the subject of contact applications in ongoing domestic violence cases, to develop supervised contact centres.

We very much welcomed the amendment to article 12 of the Children (NI) Order 1995 which required the court when considering whether to make a contact or residence order in favour of a prohibited person to consider whether the child has suffered or is at risk of suffering any harm though seeing or hearing the ill treatment of another person by the prohibited person. We also welcomed the introduction of an exclusion requirement in respect of interim care orders. We note however from the recent review conducted by the Office of Law Reform that only 9.6% of the consultees had experienced the exercise of the court’s powers in relation to the exclusion requirement and it is unclear from the responses how the courts implement the amended article 12 of the Children (NI) Order in respect of contact applications.

Recommendation: We are of the view that these two clauses provide an effective mechanism for protecting the rights of children and we would suggest that further specific research should be conducted on their operation and on the use of the guidelines established in the case of Re L. We would suggest that these articles could be focused upon in the further training in respect of the impact of domestic violence on children and young people (referred to above).



QUESTION 58 ARE EXISTING SUPPORT SERVICES ADEQUATE TO MEET THE NEEDS OF CHILDREN AND YOUNG PEOPLE AFFECTED BY DOMESTIC VIOLENCE?

There are a number of articles relating to the provision of services to children in the UNCRC and articles 17 and 18 of the Children (NI) Order 1995 places a statutory obligation on social services in Northern Ireland to identify children in need, make assessments and provide the appropriate services.

When considering the provision of services for children the following articles of the UNCRC are relevant;

Article 27; state parties shall recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

Article 28; State Parties recognise the right of the child to education.

Article 31; State Parties recognise the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate in the arts.

Article 39 The state has an obligation to ensure that child victims of armed conflicts, torture, neglect, maltreatment or exploitation receive appropriate help.

In “ Making an Impact ; Children and Domestic Violence” it is stated that financial support for working with children and young people living in refuges who have witnessed domestic violence can be provided under article 18 (5) (a) of the Children (NI) Order 1995. It is also indicated that help can be given to women and children under article 18 (6) to leave abusive situations and that such assistance might include cash for new clothes for children, cash for travel, assistance with new locks and transport to a refuge.Recent research has however indicated that there are in fact very few services available for women and children who are the victims of domestic violence and that a major problem encountered is lack of resources .

Recommendation: We welcome the initiatives outlined in this consultation document which are specifically tailored to meet the needs of children and young people. Given that the statistics show that at least 11 000 children and young people are today living in domestic violence situations, we believe that there needs to be a commitment at a strategic level to audit the services which are currently available for children and young people including emergency provision, one to one counselling services, group and family work and support within the education and youth sector and a commitment to ensure that current shortfalls in these services are given priority and adequately funded. There should be consultation with children and young people who have experience of domestic violence about the support services which they have received and additional services which would be helpful to them.

It is also our view that children and young people need to have access to legal advice and information about their rights when there is domestic violence in the home – we have suggested that there needs to be a high profile campaign aimed at children and young people and that this should be backed up by age appropriate accessible information about their rights under the Family Homes and Domestic Violence (NI) Order 1998 and the Children (NI) Order 1995. Services providing independent legal advice from the child’s perspective, in a child friendly way, such as CHALKY need to be properly resourced.

EQUALITY IMPLICATIONS

Recommendation: In order to promote equality of opportunity for children and young people in accordance with the legislative requirements of section 75 of the Northern Ireland Act 1998 and to ensure compatibility with the provisions of the United Nations Convention on the Rights of the Child, we recommend that the key points which we have raised in relation to children’s participation, provision of support services for children and young people and consultation with children and young people must be addressed.
We recommend that the issue of children who are affected by domestic violence should be highlighted within the DHSS Children in Need Strategy and within the overarching Strategy for Children and Young People and that children and young people should be consulted in this regard.

Thank you for affording us the opportunity to respond. If you have any queries or would like to meet with us in relation to the development of an information leaflet for children and young people about their rights in this area, please contact Paddy Kelly (Director) or Tara Caul (Head of Legal Unit) at the Children’s Law Centre.


Dated: 10 December 2003



The Children’s Law Centre is a registered charity and helps young people; their parents and professionals understand and work with the laws which effect children.