Judicial Summary
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The Anti-Domestic Violence Law of the People’s Republic of China defines domestic violence as physical, mental and other infringements committed between family members by means of beating, binding, injuring, restricting personal freedom, as well as regular abusive language, intimidation and other acts. Any party who has suffered domestic violence or faces an imminent risk of domestic violence may apply to the people’s court for a personal safety protection order.
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In divorce cases involving domestic violence, even if some children have not been directly subjected to domestic violence, witnessing domestic violence also causes physical and mental harm to them. The act of snatching children by parents competing for custody also constitutes a form of domestic violence. On such grounds, children who have witnessed domestic violence may apply to the court for a personal safety protection order on the basis of “suffering or facing the risk of being restricted personal freedom”, so as to protect children exposed to domestic violence.
Case Brief
Ding filed a divorce lawsuit against Li. Upon learning of the litigation, Li went to Ding’s parents’ residence under the pretext of negotiating a settlement. During the negotiation, Li lost emotional control and slashed Ding with a knife, while their young son Xiao Li witnessed the entire incident.
With the assistance of lawyers, Ding successfully applied to the court for a personal safety protection order, which also covered Xiao Li. During the validity period of the protection order, Li did not harass Ding or Xiao Li. Before the order expired, Ding applied to the court for an extension. However, the court dismissed the application on the ground that Li had committed no further domestic violence or harassment during the effective period, and that there existed no circumstance of “suffering or facing an imminent risk of domestic violence”.
After the protection order lapsed, Li demanded to take Xiao Li away. Having repeatedly witnessed Li’s violent conduct, Xiao Li suffered severe psychological fear and repeatedly refused to have contact with Li and his paternal grandmother. Ding had previously taken Xiao Li to receive psychological counseling to ease his anxiety, yet complete relief would still require a long period of time. Accordingly, Ding refused Li’s request to take Xiao Li away.
Shortly after Ding’s refusal, Li, together with his mother and cousin, lay in wait at the school gate and attempted to forcibly take Xiao Li after school. A dispute broke out between Ding and Li’s relatives at the school gate. Xiao Li showed strong resistance and clearly refused to leave with Li. Escorted by Ding, Xiao Li headed to an after-school care center, followed closely by Li and his cousin. Xiao Li became visibly anxious and distracted by their persistent pursuit.
In an attempt to persuade Li that a solitary visit was inappropriate for the time being, Ding suggested that Li’s cousin communicate privately with Xiao Li to ascertain his true willingness. After Xiao Li once again explicitly refused contact, Li and his relatives finally left.
After returning home from the care center, Xiao Li, who had gradually recovered from the shadow of domestic violence with his mother’s guidance, relapsed into extreme nervousness and unease.
Ding later contacted Li via WeChat, urging him to refrain from taking aggressive measures to visit the child temporarily. Li insisted on maintaining contact with Xiao Li in what he regarded as a reasonable manner.
A few days later, Li and his cousin again lay in wait at the school gate. Upon seeing Li, Xiao Li immediately fled into the school in fear, with Li chasing him inside in an attempt to take him away by force. Xiao Li firmly resisted and refused to leave. Li nonetheless physically surrounded the child to compel departure. Meanwhile, Li and his cousin forcibly pushed aside Xiao Li’s maternal grandmother who had come to pick him up, and prevented her from recording the scene on her mobile phone, causing the phone to drop to the ground and triggering chaos.
Terrified, Xiao Li ran further into the school gymnasium, pursued by Li. Two physical education teachers intervened, escorted Xiao Li to the school infirmary and closed the door. School security personnel then arrived and ordered Li to leave the premises for disturbing school order. After the incident, Xiao Li was extremely frightened and refused to attend school the next day; only after his mother’s comfort did he reluctantly agree to go.
Throughout Li’s long-term domestic violence against Ding, Xiao Li had been a constant witness. In particular, the incident in which Li slashed Ding with a knife in front of Xiao Li inflicted severe physical and mental trauma on the child, leaving him unwilling and afraid to face his father. Ding therefore sought assistance from a legal team.
After a thorough case assessment, the legal team submitted an application to the court on behalf of Xiao Li for a personal safety protection order, requesting the court to prohibit Li from harassing, stalking, or having contact with Xiao Li and his mother Ding.
Court Ruling
As a minor, applicant Xiao Li is in a critical period of physical and mental development with fragile psychological resilience and low stress tolerance. Having witnessed the bitter estrangement between his parents and Li’s knife assault on his mother Ding, Xiao Li has sustained severe physical and mental harm and immense psychological pressure.
On two specified dates in 20**, Li met with Xiao Li and demanded that the child leave with him. Despite Xiao Li’s clear resistance and refusal, Li insisted on taking him away, exacerbating the child’s psychological distress and seriously disrupting his normal life and studies.
In conclusion, the application filed by Xiao Li complies with the provisions of Article 29 of the Anti-Domestic Violence Law of the People’s Republic of China. The Court rules as follows:
The respondent Li is prohibited from harassing, stalking, or having contact with the applicant Xiao Li and his mother Ding. This ruling shall take effect as of the date of issuance and remain valid for six months.
If the respondent Li violates the aforesaid prohibition order, this Court shall impose a fine or detention depending on the circumstances in accordance with Article 111 of the Civil Procedure Law of the People’s Republic of China; if the conduct constitutes a crime, criminal liability shall be pursued in accordance with the law.
Legal Comment
I. Difficulties in Case Handling
How is the harm suffered by children witnessing domestic violence reflected?
China’s Anti-Domestic Violence Law does not explicitly list children witnessing domestic violence as protected subjects. Nevertheless, there is widespread social consensus on the psychological and physical harm inflicted on such children. Taiwan amended its Domestic Violence Prevention Act in 2015 to expressly provide protection for children and juveniles exposed to domestic violence, prohibiting the perpetrator from harassing, contacting, stalking, calling, corresponding or engaging in other unnecessary interference with them. Temporarily restricting contact between the abusive parent and the child until the impact of violence subsides is a crucial measure to eliminate the after-effects of domestic violence.
Does Xiao Li’s situation satisfy the conditions for applying for a personal safety protection order?
Article 23 of the Anti-Domestic Violence Law clearly stipulates that an applicant must be a party “who has suffered domestic violence or faces an imminent risk of domestic violence”. The Law enumerates acts of domestic violence as physical and mental infringements between family members through beating, binding, injuring, restricting personal freedom, regular abuse, intimidation and other means.
To objectively demonstrate the psychological trauma inflicted on Xiao Li by Li’s domestic violence, the court appointed a social guardian to conduct in-depth interviews with Xiao Li at his school. Xiao Li stated that his parents had quarreled constantly since he was two years old; Li had assaulted Ding on a specified date in September 2016; and on another date in June 2017, Li had forcibly attempted to take him home after school, prompting Xiao Li to break free and run back into the school premises. The child also expressed his refusal to meet Li at school or the after-school care center.
Social workers intervened to provide psychological counseling for Xiao Li and emotional consolation for Ding, conducted psychological assessments, discussed case disposal plans with the legal team from the perspective of the best interests of the child, and assisted the lawyers in applying for the personal safety protection order on Xiao Li’s behalf.
II. Case Handling Ideas and Strategies
First, public understanding of domestic violence remains largely limited to physical assault, with insufficient awareness of mental violence, sexual violence and other forms of abuse. In handling non-physical domestic violence cases, multiple means should be adopted to demonstrate the harm inflicted on victims, such as commissioning professional psychological counselors to issue psychological assessment reports and applying to the court for family case investigators to conduct in-depth inquiries into family circumstances. In this case, the legal team leveraged the support of social workers, psychological counselors and court-appointed social guardians to present the harm inflicted on Xiao Li from multiple dimensions.
Second, given that China’s Anti-Domestic Violence Law does not explicitly cover child witnesses to domestic violence, the core difficulty lies in realizing judicial protection for such children within the existing legal framework.
In this case, Li’s attempt to forcibly take Xiao Li away constituted an attempt to restrict the child’s personal freedom. Li’s insistence on forced contact and abduction attempts despite Xiao Li’s repeated refusals caused severe mental distress and fear. Although Li failed to take Xiao Li away, his conduct undeniably placed the child at risk of restricted personal freedom.
Meanwhile, Article 1 of the General Provisions of the Anti-Domestic Violence Law stipulates that the purpose of the Law is to prevent and stop domestic violence, protect the legitimate rights and interests of family members, maintain equal, harmonious and civilized family relations, and promote family harmony and social stability.
After comprehensive deliberation, the legal team argued the case on the above two legal grounds and filed the personal safety protection order application in Xiao Li’s name.
III. Enlightenment from the Case
In domestic violence cases, harm is inflicted not only on direct victims but also on children who witness violence. Any physical, mental or other violent conduct among family members may adversely affect juveniles living within the same household. Though not directly assaulted, such children may be exposed to violence either directly or indirectly.
Xiao Li, who witnessed his father commit domestic violence against his mother, is a typical example of psychological trauma suffered by child witnesses to domestic violence. He received nearly one year of psychological counseling after the incident, yet still suffered recurring nightmares, irritability and clear resistance toward his father.
This case indicates that the handling of domestic violence matters should focus not only on direct victims but also on children living in violent household environments. Where conditions permit, children witnessing domestic violence should be included within the scope of protection under the Anti-Domestic Violence Law, particularly through the remedy of personal safety protection orders.