Family law
Family law update:
child contact and domestic abuse under review
Safda Mahmood summaries the proposals in Mr Justice Cobb’s review of Practice Direction 12J in his report to the President of the Family Division.1
About the author
Safda Mahmood is a senior solicitor specialising in children’s law and a nationally recognised speaker on family law, including for CILEx Law School.
In 2016, Mr Justice Cobb was set the task, by Sir James Munby, the President of the Family Division, to consider proposed revisions to Practice Direction 12J (PD12J) Family Procedure Rules 2010 (Child Arrangements and Contact Order: Domestic Violence and Harm).2 This article summaries the key proposals of the review, the reasons behind the changes and the current position.
The need for a review of PD12J came about as a result of the matters raised by the report published by Women’s Aid, in January 2016, called Nineteen child homicides: what must change so children are put first in child contact arrangements and the family courts.3 The subsequent parliamentary hearing on domestic violence was followed by a parliamentary briefing paper by the All Party Parliamentary Group (APPG) on Domestic Violence.4 The hearing and briefing paper, in turn, led to a series of recommendations, a parliamentary debate, and then the President commissioning the review. In undertaking the review, Cobb J highlighted the stark findings referred to during the hearing and in the briefing and other publications. In particular, the findings evidenced the following:
- In the case of at least 12 of the children (in seven families) who were the subjects of the Nineteen child homicides report, contact with their father (the subsequent perpetrator) had been arranged through the family courts.
- In the case of six families, contact was arranged in family court hearings (two of these were interim orders).
- For one family, contact was decided as part of the arrangements for a non-molestation and occupation order.
These report findings formed the basis of the reasons behind the proposed amendments set out below.
Mr Justice Cobb suggested that, in relation to the concept of parental involvement set out in Children Act 1989 s1(2A), if the involvement of a parent in a child’s life would place the child or other parent at risk of suffering harm from abuse, then the presumption should be displaced.5 This recommendation will go a long way towards addressing one of the main concerns of Women’s Aid and the APPG that the parental involvement presumption operates to require ‘contact at all costs’ in all cases, without a proper evaluation of the risk of harm from domestic abuse (Nineteen child homicides report pp23 and 37 and APPG parliamentary briefing pp12 and 18).
The President [of the Family Division] stated that apart from one point … he accepted all the recommendations in the review, and would press for the proposals to be implemented … and as soon as possible
Cobb J was keen to emphasise that the court needed to ensure that the court process was not used as a means, in itself, to perpetuate coercion, control or harassment by the abusive parent.6 The judiciary needed to be alert to, and deal with robustly, the respondent who was uncooperative or obstructive in the litigation and/or in relation to the child arrangements. Mr Justice Cobb recommended specifically that the judiciary be familiar with the offence of ‘controlling or coercive behaviour in an intimate or family relationship’ introduced, in December 2015, under Serious Crime Act 2015 s76.
Cobb J proposed that the courts need to give more thought to waiting arrangements at court before the hearing, and arrangements for entering and exiting the court building.7 The APPG report sets out that women are commonly being followed, stalked, harassed and further traumatised after leaving court.8
Mr Justice Cobb emphasised that, in its current form, PD12J contains a number of compulsory directions for the family court judges.9 In particular, the judge emphasised the points made by McFarlane LJ in Re A (A child) [2015] EWCA Civ 486, paras 48–59 ). McFarlane LJ referred to the obligatory requirement of the court to consider and follow PD12J in a case involving allegations of domestic abuse. Consequently, Cobb J stressed that given the obligatory nature of the PD12J, it is essential that judges at all tiers of the family court are familiar with the Practice Direction and apply it as they are obliged to do, and conscientiously.10
Mr Justice Cobb proposed that, in a case where domestic abuse has been proved, a court should obtain a safety and risk assessment conducted by a specialist domestic abuse practitioner working for an appropriately accredited agency.11 Furthermore, where a risk assessment has concluded that a parent poses a risk to the child or other parent, contact through a supported contact centre, or contact supervised by a parent or relative, would not be regarded as appropriate.12
Cobb J referred to the Nineteen child homicides report, which highlighted a survey, in 2015, showing that 25% of domestic abuse survivors, who had been through the family courts, had been cross-examined by their former partner/abuser during family court proceedings.13 The Women’s Aid report emphasised that in allowing a perpetrator of domestic abuse, ‘who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control’.14
Mr Justice Cobb accepted the recommendations made by Women’s Aid that there should be rule change, so that:
(a) survivors of domestic abuse will not be cross-examined/questioned by their alleged abuser, where the alleged abuser is appearing without representation in court; and/or
(b) as a litigant in person, the victim should not be required to question their abuser.
Cobb J provided that, in the criminal jurisdiction, there was already provision, within Youth Justice and Criminal Evidence Act 1999 ss29, 34, 35, 36 and 38, and Criminal Procedure Rules 2015 SI No 1490 Part 23, for an alleged perpetrator to obtain representation.
There have been a whole host of references to the lack of comparable provision in the family court over the years. For example, the President of the Family Division, in the private law case of Q v Q; Re B (A Child); Re C (A Child) [2014] EWFC 31, at paragraph 92, emphasised the failure in this regard. In 2014, Sir James emphasised that there was a pressing need to address the wider issue of vulnerable people giving evidence in family proceedings (about which the family justice system lags woefully behind the criminal justice system) including the inadequacy of the procedures for taking evidence from alleged victims.15 Consequently, Cobb J emphasised that, in the family court, positive steps needed to be taken to address the problem of alleged victims of domestic abuse being questioned directly by their unrepresented alleged abusers.16
Subsequent to Cobb J’s report, Sir James emphasised the significant discussion and developments surrounding the issue of vulnerable witnesses in court in the past few years.17 The president stated that apart from one point only (which related to the final amendment proposed to PD12J para 28 concerning the fact-finding hearing or other hearing of the facts where domestic abuse is alleged), he accepted all the recommendations in the review, and would press for the proposals to be implemented in full and as soon as possible.
In respect of the recommendation to prevent an alleged perpetrator from cross-examining their alleged victim(s), the president was of the view that such an amendment, although necessary, could only be carried out through primary legislation and not, as Cobb J suggested, by the proposed revision to PD12J.
In relation to special measures, Sir James emphasised that the courts need to be fitted out with the necessary facilities which, currently, they do not have. For example, in many courts the only available special measure is a screen or curtains round the witness box, and there are no safe waiting rooms; in addition, the video links in too many family courts are prone to the link failing and with poor sound and picture quality. Consequently, the president emphasised that much more needed to be done to bring the family courts up to an acceptable standard and match the facilities available in the Crown Court.
I am sure that many practitioners will welcome the proposed changes, which are all necessary and are targeted specifically to address current issues. One point I would make as a family practitioner is that the presumption of parental involvement (as it stands currently) does reconcile with PD12J in that, if domestic abuse is raised as an issue, it needs to be considered by the court in coming to a decision surrounding contact.
The proposed amendment will need to be applied carefully by the courts, so as to ensure that they do not inadvertently let the pendulum swing the other way, ie, in denying contact when there has been proven domestic abuse. After all, this was one of the key points emphasised in the historical cases of Re: L (A Child); Re: V (A Child); Re: M (A Child); Re: H (Children) [2000] EWCA Civ 194; [2000] 2 FLR 334, which gave guidance on fact- finding hearings and contact when domestic violence had been shown, ie, the finding does not, in itself, result in a presumption against contact with the offending parent.
1 Review of Practice Direction 12J FPR 2010. Child arrangement and contact orders: domestic violence and harm. Report to the President of the Family Division. The Hon Mr Justice Cobb, available at: http://tinyurl.com/gn6cqy3
2 Practice Direction 12J - Child arrangements and contact order: domestic violence and harm sets out guidance as to finding-of-fact hearings in private children law cases, available at: http://tinyurl.com/khjgd55
3 Available at http://tinyurl.com/zdsyn4u
4 The parliamentary hearing on domestic abuse, child contact and the family courts took place on 27 January 2016. Domestic abuse victims in family law courts domestic abuse, child contact and the family courts All-Party Parliamentary Group on Domestic Violence parliamentary briefing, available at: http://tinyurl.com/mbkp9v9
5 See note 1, p12 and explanatory note ix, p22
6 See note 1, pp4, 12 and explanatory note x, p22
7 See note 1, pp4, 13 and explanatory note xii, p22
8 See Domestic abuse victims in family law courts domestic abuse, child contact and the family courts All-Party Parliamentary Group on Domestic Violence parliamentary briefing p16, available at: http://tinyurl.com/mbkp9v9
9 See note 1, p19
10 See note 1, pp8 and 9
11 See note 1, p19 and explanatory note xvii, p22
12 See note 1, pp4 and 21
13 See note 1, pp4 and 4, and explanatory note iv, p21
14 See note 3, p27 1
5 View from the President’s Chambers (12): The process of reform: next steps, available at: http://tinyurl.com/ksba8pp
16 See note 1, p10
17 View from the President’s Chambers (16): Children and vulnerable witnesses – where are we?, available at http://tinyurl.com/zf7zpqa