On 2nd October 2017, Sir James Munby, President of the Family Division, issued revised Practice Direction 12J (PD 12J) of the Family Procedure Rules 2010.
The purpose of PD 12J is to set out the steps the court must take when it is alleged or proven that there has been domestic abuse in the relationship or a child has suffered from domestic abuse.
The new direction was introduced following the report by the Working Group chaired by Justice Cobb. The report was commissioned by the President of the Family Division, Sir James Munby, following the recommendations made by the All-Party Parliamentary Group on Domestic Violence (the APPG) in 2016 in the Parliamentary Briefing: Domestic Abuse, Child Contact and the Family Courts.
The PD 12J has several key amendments. These include:
A new definition of domestic abuse
The term ‘domestic violence’ has been replaced with ‘domestic abuse and now includes:
“…any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are 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”.
In addition, certain aspects of domestic abuse go on to be further defined. For example, coercive behaviour is said to mean “an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim”.
Controlling behaviour is defined as “an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour”.
Abandonment now covers situations were children are abandoned with or separated from their mother.
The presumption of parental involvement
There has been concern among groups campaigning for the rights of women who suffer domestic abuse that the presumption contained in section 1(2A) of the Children Act operates to require ‘contact at all costs’ in all cases, without a proper evaluation of the risk of harm from domestic abuse.
Paragraph 7 of PD 12J goes some way to addressing this by directing:
“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”.
Considering whether the issue of domestic abuse has been raised
The new directive states at every stage of proceedings, and especially at the First Hearing Dispute Resolution Appointment (‘FHDRA’), the issue of domestic abuse must be considered if it is raised. The issue of domestic abuse may be brought to light by the parties, or by Cafcass or CAFCASS Cymru.
If domestic violence is a factor, the court 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 determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.”
- Increased safety and risk assessment
Once the nature and extent of domestic abuse is determined, part 33 of PD 12J directs the court must, if it is determining any form of contact or involvement of the parent in the child’s life, consider:
- whether the couple should seek support, advice or third-party intervention as a condition to the court making a child arrangement order and make directions to that purpose; and
- whether the contact would be helped by any social work, psychiatric, psychological or other assessment (including an expert safety and risk assessment) of any party or the child.
The PD 12J addresses many of the concerns which have been put forth by child welfare campaigners over recent years. In particular, the directives help to ensure the court, when deciding on child arrangements, will not place a child in a risky or dangerous situation when making an order for contact. The Court of Appeal recently confirmed that the revised practice directive highlights the “seriousness with which it [the court] needs to consider domestic abuse in its widest sense wherever it is alleged”.
Rosie Bracher are specialist family law solicitors based in Barnstaple. We have the knowledge and expertise to advise you on all matters involving children and family law. Please contact our office on 01271 314 904 and arrange to speak to one of our team.
 L v F  EWCA Civ 2121