Commentary on Sections Part 2 – Children Order Amendments Section 133: Definition of harm
Article 2(2) of the Children Order defines “harm” as “ill-treatment or the impairment of health or development and the question of whether harm is significant shall be determined in accordance with Article 50(3)”.
Section 133 amends Article 2(2) to provide further definition of “impairment of health or development” to include, for example, impairment suffered as a result of the ill-treatment of another or behaviour directed at another that falls within section 2 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 (or what amounts to abusive behaviour), whether or not the child who has suffered the impairment saw or heard, or was present during that ill-treatment or behaviour (subsection (1)).
As a consequence, “harm” will include cases where a child is adversely impacted by domestic abuse, even if they have not seen, heard, or been present during its taking place.
Subsection (2) amends Article 12A of the Children Order. Article 12A places a duty on the court, when considering whether to make a residence order or contact order in favour of a prohibited person, 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. Article 12A(2) defines a prohibited person for the purposes of paragraph (1). In order to ensure that there is consistency of approach in the application of harm across all provision in the Children Order, Article 12A is amended to provide that the court shall consider whether the child has suffered or is at risk of suffering any harm as a result of any behaviour of the prohibited person.