Children – the hidden or direct victims of domestic abuse?

ABSTRACT

As the psychological impact of childhood exposure to domestic abuse gains more traction, referring to children as ‘the hidden victims of domestic abuse’ is becoming increasingly inaccurate and reductionist. Representing children as mere witnesses of domestic abuse also poses wider implications from the view of law and policy. Jurisdictions which recognise children as direct victims rather than hidden witnesses of domestic abuse, for example, send a clear message that the psychological harm of experiencing domestic abuse merits robust intervention (e.g. additional funding for child-specific support and services). Using a comparative approach, this study analyses the legal recognition of children who experience domestic abuse for the purposes of exploring how the child should be conceptualised in laws regulating childhood exposure to domestic abuse. For this comparative review, the jurisdictions of England and Wales, New Zealand and the United States (specifically the State of Washington) were selected, on the basis that they all respond to child experiences of domestic abuse in distinct ways that raise pertinent points of contrast. Whilst the State of Washington relies primarily on perpetrator-centric, criminal law responses to child experiences of domestic abuse, England and Wales and New Zealand resort to family law mechanisms that focus more on the child and the parent–child relationship. All in all, these points of contrast are pertinent because they provide an exploratory view of how the child should be conceptualised in law and policy. As this paper submits, conceptualising the child as a direct victim of domestic abuse––as reflected in England and Wales and New Zealand’s legislative efforts––works to send a powerful message about the severity of harm that children suffer when they experience domestic abuse. The State of Washington, on the other hand, has much to learn from England and Wales and New Zealand’s conceptualisation of the child, as its current legislative efforts appear to be rooted in an outdated understanding of the child as a mere collateral witness.

KEYWORDS:

• Domestic abuse
• IPV
• childhood trauma
• family law
• criminal law
• comparative analysis

Disclosure statement

No potential conflict of interest was reported by the author.

Court cases

England and Wales

B v P [2022] 3 WLUK 511

D v E [2021] EWFC 37

MacDougall v SW [2022] EWFC 50

P v D and others [2014] EWHC 2355 (Fam)

Re A (Domestic abuse: incorrect principles applied) [2021] 6 WLUK 601

Re Alwyn (Non-Molestation Proceedings by a Child) [2010] 1 FLR 1363

Re A (Suspended Residence Order) [2010] 1 FLR 1679

Re A (Supervised Contact Order: Assessment of Impact of Domestic Violence) [2015] EWCA Civ 486

Re BC (A Minor) (Access) [1985] FLR 639

Re C (A Minor) (Care: Children’s Wishes) [1993] 1 FLR 832

Re K (Contact: Mother Anxiety) [1999] 2 FLR 703

Re M (A Minor) (Family Proceedings: Affidavits) [1995] 2 FLR 100

Re M (Contact Refusal: Appeal) [2013] EWCA Civ 1147

New zealand

Briella Adams-Coy v Lloyd Coy [2016] NZFC 3156

Cristal Alger v Arthur Dwight [2016] NZFC 1745

Haley Sidney v Andreas Boone [2016] NZFC 1636

Honour Ansel v Tyler Akuhata [2016] NZFC 3418

James Ford v Tessa Evans [2016] NZFC 4092

Kacem v Bashir [2010] NZSC 112

Sam Mcleod v Shelly Nepe [2020] NZFC 3141

Sophie Burt v Wiremu Smith [2016] NZFC 2552

State of Washington

Ingersoll v. Ingersoll, 200 Wash.App. 1070

In re Marriage of Littlefield, 133 Wash.2d 39

In re Welfare of M.R.H., 145 Wash.App.10

Kirby v. Kirby, 126 Wash. 530

Underwood v. Underwood, 181 Wash.App. 608

Re Marriage of Jennifer Arlene Wiley v. David Frank Wiley, No. 76,623-6-I

Re the Marriage of Marcia Jean Kovacs v. John E. Kovacs, No. 60,035-0

State of Washington v. Charles Edward Paschal, No. 50,136-8-II

State of Washington v. Warren Eugene Bell, Jr., No. 70,358-7-I

State of Washington v. Johnnie Lee Wiggins, No. 70,653-5-I

State of Washington v. Leland Dulani Harris, No. 71,408-2-I

State of Washington v. Joseph JW Roberts, Jr., No. 75,872-1-I

Statutes

Adoption and Children Act 2002

Care of Children Act 2004 (NZ)

Children Act 1986

Domestic Abuse Act 2021

Domestic Violence Act 1995 (NZ; repealed)

Family Law Act 1996

Family Violence Act 2018 (NZ)

Revised Code of Washington (‘RCW’), Title 10, Chapter 10.99 (WA)

RCW, Title 9A, Chapter 9A.46 (WA)

Notes

1. Usually the child’s parents.

2. Repealing the Domestic Violence Act 1995.

3. E.g. NZ.

4. E.g. in EW, those aged 16 or over can inflict/sustain domestic abuse under the Domestic Abuse Act 2021.

5. This is not to diminish the lived reality of men who have been – or are – subject to domestic abuse, but the gendered nature of domestic abuse is well-established. See, R.E. Dobash and R.P. Dobash, ‘Women’s Violence to Men in Intimate Partner Relationships: Working on a Puzzle’ (Dobash and Dobash 2004) Brit. J. Criminal, Vol. 44, pp. 324–349.

6. This definition can now be found in section 31 of the Children Act 1989.