Practice Direction 12J (Child Arrangements and Contact Order: Domestic Violence and Harm) was issued on 22 April 2014.¹ The Practice Direction (PD) is particularly relevant and helpful about when to list findings of fact and how to conduct a fact- finding hearing, and on the position with risk assessments. For example, MS v MN [2017] EWHC 324 (Fam) was an appeal, lodged by the mother, after the trial judge’s order for a short period of indirect contact with the father followed by direct contact either supported or supervised.
The court had made findings relevant to the issue of direct contact, including abuse of the mother by the father, some of which took place in the child’s presence, and of threats to kill; in addition, the Children and Family Court Advisory and Support Service (Cafcass) officer recommended that the father undertook a domestic violence perpetrator programme.
On appeal, the order was set aside as the trial judge had not considered the necessary elements of PD12J.
...elements of the new PD12J certainly go towards addressing some of the issues surrounding the running of fact-finding hearings
In Re A (a minor) (fact finding ; unrepresented party) [2017] EWHC 1195 (Fam), Mr Justice Hayden considered the position of the court having allowed the father to cross examine the mother in relation to the allegations of domestic abuse. (It should be noted that Hayden J has instructed that this judgment must be read in conjunction with his earlier judgment ([2017] EWHC 949 (Fam)). Hayden J said that he found it ‘extremely disturbing to have been required to watch [the mother] cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness’ (para 58). As for the future, the judge provided that it is a ‘stain on the reputation of our family justice system that a judge can still not prevent a victim being cross examined by an alleged perpetrator (para 60). He went on: ‘For my part, I am simply not prepared to hear a case in this way again … No victim of abuse should ever again be required to be cross examined by their abuser in any court, let alone in a family court where protection of children and the vulnerable is central to its ethos’ (paras 60 and 63).
Similarly, in H (Mother) v D (Father) v the Child, H v D (Appeal: Failure to Case Management) [2017] EWHC 1907 (Fam), Mr Justice Peter Jackson was of the view that the trial judge fell into error in many respects, most notably, by virtue of the fact that she did not appreciate her powers under PD12J, instead assuming that the father had the right to cross-examine the mother.
Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm came into force on 2 October. ² A circular was issued by Sir James Munby, dated 14 September 2017, to which the new PD12J was made was annexed.³ In the circular, Sir James made it clear that the latest PD12J will require further adjustment if and when the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators is enacted.
The new PD12J provides a different and much expanded definition of what is now referred to as ‘domestic abuse’ rather than ‘domestic violence’ as before. The PD provides that domestic abuse comprises culturally specific forms of abuse, including but not limited to the following: forced marriage; honour-based violence; dowry-related abuse; and transnational marriage abandonment.
Presumption of parental involvement
The substituted PD12J has not provided for the displacement of the presumption of involvement in cases of domestic abuse, despite Cobb J’s recommendations in his Review of Practice Direction 12J FPR 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm. 4 Nonetheless, the new PD12J has gone some way in addressing the need for the presumption to be considered carefully.
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 by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm (paragraph 7).
Mandatory duties on the court
The new PD12J provides that there are mandatory requirements (set out in paragraphs 8, 14, 15, 18, 22, 29) for inclusion of certain specified matters in the court’s order. The President’s circular stated that it is ‘appreciated the additional burden that this may impose on judges and court staff, but there is good reason for making these requirements mandatory and they must be complied with’ (emphasis in original).
Assisting victims
So as to address some of the issues surrounding ‘protection’ of the victim at court, there is a revised paragraph 10, which provides that if, at any stage:
…the court is advised by any party (in the application form or otherwise), by Cafcass or CAFCASS Cymru or otherwise, that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.
Practitioners should also note that paragraph 19(k) provides that:
… in cases where the alleged victim of domestic abuse is unable for reasons beyond their control to be present at the hearing (for example, abandonment cases where the abandoned spouse remains abroad), the court needs to consider what measures should be taken to ensure that that person’s best evidence can be put before the court. Where video-link is not available, the court should consider alternative technological or other methods which may be utilised to allow that person to participate in the proceedings.
Interim orders
There is a major shift of emphasis in the revised paragraph 25: unlike the position that the court needs to consider whether to make an interim order, the revised paragraph securely guards against making such an order unless it is safe to do so. ‘Where the court gives directions for a fact- finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm’ (para 25).
Risk assessments
There is an addition to PD12J paragraph 38, so that ‘[w]here a risk assessment has concluded that a parent poses a risk to a child or the other parent, contact via a supported contact centre, or contact supported by a parent or relative, is not appropriate.’
The author would suggest that various elements of the new PD12J certainly go towards addressing some of the issues surrounding the running of fact- finding hearings raised in the case-law authorities referred to in this article. In particular, it can be seen that the substituted PD12J addresses to some extent the unsatisfactory position surrounding the ‘testing’ of victims’ evidence by allowing the alleged abuser to cross examine them. However, to enable more wholesale and concrete changes to this issue and bring family proceedings in line with criminal proceedings in this context, any proposed primary legislation must come into operation as soon as possible.
1 Available at: http://tinyurl.com/khjgd55
2 The substituted Practice Direction 12J supplementing the Family Procedure Rules 2010, available at: http://tinyurl.com/y9kql4uy
3 Available at: http://tinyurl.com/y9fb48xx
4 J Cobbs’ report, dated 8 November 2016, was published as January 2017: [2017] Fam Law 225, is available at: http://tinyurl.com/gn6cqy3