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Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm- A Useful Reminder

Tue 24th Apr 2018

In the Circular regarding the Cobb Review of PD 12J the President said “I urge all judges to familiarise themselves with the new PD 12J and to do everything possible to ensure that it is properly complied with on every occasion and without fail to everyone to whom it applies.”  

Practice Direction 12 J came in to force on the 2nd October 2017, despite this courts and practitioners alike appear to be missing the key principles which President Munby reminds us   “The purpose of this Practice Direction is to set out what the Family Court or the High Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.”

The Practice Direction defines “domestic abuse”  as including any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who or have been intimate partners or family members regardless of gender or sexuality.  This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.  Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.

General Principles: domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness to one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour).  Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment ( FHDRA), consider whether domestic abuse is raised as an issue, either by the parties or by CAFCASS and if so must:-

  • Identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
  • Consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
  • Give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
  • Ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
  • Ensure that any interim child arrangements order (i.e. considered by the court before the determination of the facts, and in the absence of admission, is only made having followed the guidance set out in para’s 25-27.

By paragraph 7 “in proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary.  The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.”

It is made clear by paragraphs 17 and 18 that consideration as to whether to conduct a fact finding is to be dealt with as soon as possible in relation to any disputed allegation of domestic abuse-

  • In order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37;
  • In order provide a basis for an accurate assessment of risk
  • Before it can consider any welfare-based orders in relation child arrangements; or
  • Before it considers the need for a domestic abuse related activity (such as a Domestic Violence Perpetrators Programme DVPP)).

In determining whether it is necessary to conduct a fact finding hearing the court should consider-

  • The views of the parties and CAFCASS;
  • Whether there are any admissions by a party which provide a sufficient factual basis on which to proceed;
  • If a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis in which to proceed;
  • Whether there is any other evidence available to the court that provides a sufficient factual basis on which to proceed;
  • Whether the factors at paragraphs 36 and 37 can be determined without the need for a fact finding;
  • The nature of the evidence required to resolve the disputed allegations;
  • Whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and
  • Whether a separate fact-finding would be necessary and proportionate in the circumstances of the case.

Despite the current Practice Direction being the third revision, sadly, it seems there is still ongoing significant failure by the courts to follow the clear requirements of PD12J (in its earlier formulation). Reported cases in the High Court have highlighted the need for courts to closely adhere to the requirements of PD 12J. Examples can be seen in the following recent cases: –

  • Re CB (International Relocation: Domestic Abuse: Child Arrangements) Cobb J : 30 June 2017 – In this the father had been convicted of harassing the mother and it was established that his behaviour, unless checked, would be likely to cause the child continued physical and/or emotional harm. Nevertheless Cobb J afforded significant priority to the goal of achieving some form of re—connection between the father and daughter.
  • Re D (Appeal: Failure of Case Management) – Peter Jackson J: 24 July 2017 [2017 EWHC 1907 (Fam) – In this case Peter Jackson J was reviewing the progress of a contested CA 1989, s8 application. The proceedings began in 2013 with cross applications by each parent, at the centre of which were serious allegations of domestic abuse made by the mother against the father.  Following the father’s acquittal in the criminal court in 2015, the need for a fact finding hearing was accepted by the family court.  The fact finding hearing was listed no less than eight times over the course of 18 months before it eventually commenced, only to be, as Jackson J held, wholly mismanaged at the final hearing.  One of the central reasons which had caused delay had been the courts inability to determine and then hold to a case management decision as to the manner in which the father, as a litigant in person, was to cross examine the mother in the proceedings.  In his conclusions, Jackson J said – “… the history shows a chronic failure of judicial case management.  The repeated inability of the court to hold a fact finding hearing has led to prolonged and indefensible delay in making important decisions for this young child.”   

In the case of Re M (Children) [2017] EWCA Civ 2164 – Munby P, Arden and Singh J, reiterated the lengths to which courts are expected to go in attempting achieve contact between a child and his or her parent, even in circumstances potentially fraught with difficulties. Key principles were highlighted including –

  • “Judges should be very reluctant to allow the implacable hostility of one parent (usually the parent who has the residence order in his/her favour), to deter them from making a contact order where they believe the child’s welfare requires it. The danger of allowing the implacable hostility of the residential parent (usually the mother) to frustrate the court’s decision is too obvious to require repetition on my part.”  Balcombe LJ in Re J ( A Minor) (Contact)  [1994]
  • “…the Judge has a positive duty to attempt to promote contact; that the Judge must grapple with all the available alternatives before abandoning hope of achieving some contact; that the judge must be careful not to come to a premature decision; and that contact is to be stopped only as a last resort and only once it has become clear that the child not benefit from continuing the attempt..” Re C (Direct Contact: Suspension) [2011] EWCA Civ 521

More recently in the case of J (Children) [2018] EWCA Civ 115 McFarlane and King LLJ criticises the court for a number of procedural steps within the proceedings which the father, on appeal, asserted amounted to a failure by the court to reinstate contact.  Some of the procedural failures included litigants in person and their ability to cross examine an ex-partner; the use of McKenzie Friends and; whether or not there should be a finding of fact hearing. The appeal was allowed on the basis that the court considered that a fact-finding hearing should have taken place in 2015, when proceedings had been issued in 2014, and the appeal heard in February 2018.  Sadly, the outcome of the appeal did not alter the result of the order made in July 2016, which provided for no contact McFarlane LJ was driven to conclude that it was too late, and contrary to the welfare interests of the children to contemplate a re-hearing.

What might not have been clear previously is that the Practice Direction is mandatory. Let’s hope the revision and the examples set out above ensure that failures to adhere to the Practice Direction no longer occur.

Kerry Barker

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