What “We Now Understand”: Exposure to Domestic Violence as a Form of Child Abuse

Domestic violence and child abuse have long been known to co-occur, but not necessarily to be more intricately linked than that. Over the last few years, however, several jurisdictions have begun to recognise that exposure to domestic violence may in and of itself constitute a form of psychological, or emotional child abuse. This article explains why exposure to violence should be seen as a form of child abuse, highlights legal developments, and makes a case for firm(er) recognition of exposure to domestic violence as a form of child abuse in Hong Kong.

Within the current context, exposure to domestic violence refers to situations where the child is exposed to domestic violence as a “third party”; the child is not the target, but witnesses violence, generally between his or her parents or carers (hereafter “parents”). Exposure or witnessing is not limited to seeing one parent abuse the other, or being in the same room. A child can be exposed to domestic violence when he or she hears the abuse taking place, is told about it, feels it through an atmosphere of terror, or is involved in ‘cleaning up’ (including caring for the abused parent, accompanying to hospital, etc.).

The Issue

Until the 1980s, domestic violence was mainly considered a women’s issue. Children’s experiences received scant attention, unless the violent parent also actively abused the child. Over the past few decades, however, the social sciences have recognised the harmful effects on children of exposure to domestic violence, and the legal world is now following suit. As Butler-Sloss famously held in Re L, M, V, H (Contact: Domestic Violence) [2001] Fam 260:

"[Judges] need to have a heightened awareness of the existence of and consequences, (some long-term), on children of exposure to domestic violence […]. There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence […] on the premise that they were matters affecting the adults and not relevant to issues regarding the children. […] [but] attention [should be] paid to the adverse effects on children living in the household." (see para. 272–273)

In Hong Kong, the courts have equally begun to view exposure to domestic violence as a relevant consideration in custody proceedings, although so far no accessible case has comprehensively examined the issue. In YLS v TL [2009] HKEC 37, Judge Mellow described as “a terrifying experience” the children’s exposure to frequent domestic violence. However, because the violent father had also made threats to kill all family-members (including himself) if custody would be awarded to the mother, the court based its decision primarily on these serious threats, without extensively exploring the exposure to domestic violence. (See also RK v YS [2010] HKEC 1104 in which both parents perpetrated domestic violence and Wong J shared the psychologist’s concern about the “exposure to the parental conflict, and the impact on [the child’s] emotional well being”, but focused on aggressive alienation).

More recently, the Court of Appeal was confronted with an application under the Hague Convention (child abduction) in which both parents claimed to be the victim of violence (M v E [2015] HKEC 1031). The case does not include a substantive consideration of the children’s exposure to domestic violence, but it does accept as authority the English case of In Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144, which states that:

"Every child has to put up with a certain amount of rough and tumble, discomfort and distress. […] But there are some things which it is not reasonable to expect a child to tolerate. [….] Among these […] we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent." (para. [34])

Effects of Exposure

Exposure to domestic violence thus goes beyond the “rough and tumble” of life, and may cause children harm to a degree necessitating judicial attention. Yet, what exactly is the harm that children suffer as a result of exposure to domestic violence? Social science studies have identified a raft of potential negative consequences for children, some more likely than others. In general, several areas of concern can be detected:

  • Post Traumatic Stress Disorder (“PTSD”): To most children exposure to domestic violence is a traumatic event and can trigger PTSD. Especially infants/toddlers are in danger of developing PTSD because they can feel the terror and/or see the violence, but cannot yet make sense of what is going on.
  • Brain development: Early exposure to domestic violence may alter brain development and neurobiology.
  • Cognitive development: Both as a response to trauma, and because energy is re-directed to survival functions, children often suffer cognitive deficits, including inhibited speech, or attention and perception problems.
  • Social and emotional development or behavioural issues: Children exposed to violence often suffer from attachment issues, have lower social competence, and display “externalising symptoms” (behavioural problems/anti-social behaviour).
  • Psychological impact or internalising symptoms: Children exposed to domestic violence are in danger of developing a number of psychological problems, including depression, anxiety, insomnia and low self-esteem.
  • Health outcomes: Exposure to domestic violence and the stress it causes can lead to negative health outcomes including somatic complaints, substance abuse, or impaired hearing or vision.

The effects of exposure to domestic violence are often so severe, that from the early 1990s researchers have called for recognition of exposure as a form of child abuse, crossing the child protection threshold (Jo Carroll, The Protection of Children Exposed to Marital Violence (1994) 3 Child Abuse Review 6–14). By the start of the new millennium this view had become more widely accepted and legislative amendments began to reflect the new understanding. In England, for example, harm within the context of care and supervision orders includes since 2002 “impairment suffered from seeing or hearing the ill-treatment of another” (s. 31(9) of the Children Act 1989). Section 4 of the Australian Family Law Act (1975), following a 2011 amendment, defines child abuse as “causing the child to suffer serious psychological harm, including […] when that harm is caused by the child being subjected to, or exposed to, family violence”.

England & Australia

After some initial hesitance to take child protection measures where children are exposed to domestic violence, the English and Australian courts have recently dealt with a surge in care proceedings. A particularly comprehensive judgment is the Australian case of Re Anthony [2013] NTMC 10 in which a child was exposed to severe domestic violence suffered by his mother at the hands of his father (issues of medical attention and home conditions equally played a role). In Anthony’s case, all parties were initially reluctant to make exposure to domestic violence part of the proceedings, but Commissioner Hannam (rightly) insisted on obtaining expert evidence. The judgment records in some detail the observations of a child psychologist on the impact of exposure to domestic violence and patterns prevalent in families where such violence exists. In view of these observations, and the facts, Anthony remained in care.

The English courts have equally dealt with child protection cases related to exposure to domestic violence. Exposure was the principal concern in Royal Borough of Greenwich v JB, EV, JM, TV, JV, EV (by their Children’s Guardian [2014] EWHC B18 (Fam) in which a violent father opposed a care and placement order in respect of three children (the abused mother made no submissions). The children had witnessed “exceptionally damaging” levels of violence, and showed signs of emotional and developmental difficulties and behavioural challenges. The court found that the children’s exposure to the excessive violence perpetrated by their father passed the child protection threshold as emotional abuse, and that the mother was unable to protect them, leading to the children’s placement. Another interesting case is In the Matter of S (A Child) [2015] EWCA Civ 1015, where the Local Authority sought to place an emotionally abused child in long term foster care. Both parents opposed the application, whilst at the same time making cross-allegations of domestic violence. Ordering foster care, the Court of Appeal clarified that:

"Regardless of who was responsible for the abuse and aggression within the household. It is the child’s exposure to a toxic relationship that is the cause [of him being taken into care]." (para. [21])

The case is important because it highlights that exposure to verbal and psychological violence can equally constitute child abuse, and it underlines that child protection measures may be in place irrespective of who perpetrated the abuse and who suffered it when neither parent is able to shield the child from exposure.

This brings us to the main argument against regarding exposure to domestic violence as a form of child abuse that justifies child protection measures: it appears to blame the battered parent for failing to protect the children (see DOHS v Ms B & Mr G [2008] VChC 1). However, a victim of violence is never to blame for children’s exposure to that violence, though it may be necessary to protect the children irrespective of blame. Key in such cases must be support: no child should be taken into care for exposure to domestic violence without the abused parent having received genuine support capable of allowing him or her to care for the children (eg, in OCC v B & T (unreported) the abused mother had been provided with numerous support measures, including two days of one-on-one domestic violence awareness training).

Appraisal

In Hong Kong, research continues to see domestic violence and child abuse as two co-occurring, yet separate issues, and this equally appears to be the prevalent attitude amongst practitioners. Moreover, neither the Domestic and Cohabitation Relationships Violence Ordinance, nor the proposed “Children Bill” (or even the DSW’s Guide For Handling Child Abuse Cases) explicitly refer to the witnessing of domestic violence as a form of child abuse. However, that does not mean that the argument cannot be made (see PFH v CMS [2007] HKFAMC 33 in which emotional abuse appeared related to domestic violence). The law in Hong Kong is sufficiently flexible to encapsulate exposure to domestic violence in the relevant definition of a minor ‘in need of care and protection’ (s. 34(2) of the PCJO) under subsections (a) ill-treatment and neglect, or (b)/(c) avoidable impairment or neglect of health, development or welfare, as psychological abuse or neglect.

Recognition of exposure to domestic violence as abuse is essential both for children’s protection, and to honour their UN Children’s Convention right to be free from exposure to violence. Furthermore, such recognition can be crucial in family law cases (including Hague proceedings). It makes a real difference to say that a child has been abused where he or she was exposed to domestic violence, rather than submitting that the child merely suffered harm. These considerations take on added significance once the anticipated parental responsibility model will be implemented, which we now understand is no longer a remote possibility.

Jurisdictions: 

Teaching Assistant, The Chinese University of Hong Kong

Dr. Esther Erlings joined The Chinese University of Hong Kong, Faculty of Law in 2016. Dr. Erlings has a background in both civil and common law, with a particular emphasis on human rights and family law in France, England and Hong Kong. Her current research focuses on ways in which the law and (alternative) dispute resolution empower – or disempower – vulnerable groups in society, such as children and minorities. Dr. Erlings has published in both local and international journals, with her latest article accepted for publication by the International Journal of Children’s Rights.