Your children have come home from spending time with their other parent, talking about inappropriate sexual behaviour. What steps do you need to take?
It will depend on the precise nature of the allegation but as a parent you have a duty to safeguard your children, even from their other parent, if there has been any sort of inappropriate sexual behaviour. This could be the children being exposed to adult sexual behaviour that they are too young to understand or witness; or it could be that something inappropriate has happened to your child.
It is important that you seek urgent legal assistance if you believe your children have suffered from some sort of inappropriate sexual behaviour.
Child Arrangements Order
If there is a Child Arrangements Order in force determining what time your children should spend with each parent, then this is potentially a conflict with your duty to safeguard the children. In that case you need to inform the other parent that you are stopping complying with the order due to your concerns, and you must then immediately seek an urgent order from the court. This might be a Prohibited Steps Order which is an order which would prevent your children from coming into contact with the person against whom the allegation is being made.
The court will then review the allegations and consider what level of contact may be appropriate between the parent and the child not only if the allegation is proved but whilst the court is investigating the allegation itself. The court may undertake a finding of fact hearing. This is a hearing where the court hears the relevant evidence and, using the civil test for the burden of proof, determines whether or not the allegations are proved.
It is important to note that the test for burden of proof in civil courts is whether the allegation is proved on the balance of probabilities. This is very different from the criminal burden of proof where the court and jury must be satisfied beyond all reasonable doubt. That is why you can have the same case and the same evidence with the criminal courts saying the allegation is not proved and the civil courts saying it is proved!
Contact
Depending on the seriousness of the allegation that the court still may order that there should be some contact between the parent and the child. The court is under a duty to consider the welfare of the child and contact will only be ordered if it is safe. This might mean there is supervised contact. It might mean that there is indirect contact only, for example the parent is allowed to send card and gifts to their child. If the allegation is extremely serious then it is unlikely that any contact would be ordered.
If there is a court order in force, you cannot simply decide to ignore the order and not return the matter to court. You must comply with the court order which is why an urgent application to the court is required.
Safeguarding your children
What should you do however if there is no court order in force? You still have a duty to safeguard your children from harm.
You may still need to suspend any informal arrangement that you have with the other parent whilst the matter is being investigated. You would need to report the matter to your local social services and your GP. They will initially undertake what is known as a section 47 investigation. The local authority has a duty to investigate where they believe a child has suffered or is likely to suffer harm in their area. They can also involve the police if they deem it necessary. Social services may ask that the parents make the necessary application to the court and the court would then decide the issues as set out above.
In some cases social services may decide that they need to take court proceedings themselves to protect the children from harm if the allegations are extremely serious.
What should you do however if the allegation is so serious that a criminal offence potentially has taken place. In those circumstances, you will also need to make a report to the police. The police will want to interview your children and this will take the form of what is known as an ABE interview. ABE means achieving best evidence. The police will therefore decide whether or not a criminal offence has been committed, and the CPS will then decide whether or not there should be a prosecution. If the police are investigating an allegation, it does not stop the family courts being involved and determining the arrangements for your children. Often criminal proceedings and family proceedings are happening at the same time on the same facts.
It is important that you seek urgent legal assistance if you believe your children have suffered from some sort of inappropriate sexual behaviour.
Enna Benyon-Tinker contributed to ‘Separating With Children 101′, 3rd edition, (Bath Publishing, 2023).
