Posted: 27th January 2017
Author: Emily Bower

Proposed Changes to Practice Direction 12J – Child Arrangements and Contact Orders: DV and harm

holding hands

In his January View from the President’s Chambers ‘Children and Vulnerable Witnesses – where are we?’ Sir James Mumby, President of the Family Division comments on the Cobb Review and the changes that need to be made to the family justice system, particularly in relation to accommodating children and vulnerable witnesses in domestic violence and harm cases. In his view, “progress has been slow” and urgent action is now required.

Sir James Mumby has, since 2014, been pressing the need to reform the way in which vulnerable people give evidence in family proceedings. He believes this issue is something in which “the family justice system lags woefully behind the criminal justice system”.

Section 34 of The Youth Justice and Criminal Evidence Act 1999 prohibits an alleged perpetrator charged with a sexual offence from examining the alleged victim in person. There is no analogous provision in the family courts and therefore, an unrepresented father in private law proceedings facing an allegation of sexual abuse is not prohibited from cross-examining the alleged victim at a fact finding hearing. He considers that a new statutory provision providing for representation in such circumstances, the cost of which should fall on public funds, is required. Sir Oliver Heald QC, Minister for State Justice, has now confirmed that work has started in relation to creating primary legislation to ban such cross-examination.

The Hon. Mr Justice Cobb’s report to the President of the Family Division considers the Women’s Aid Report and sets out a number of recommendations and suggested revisions to the current Practice Direction 12J to make it “more robust” including:-

  • There must not be an assumption of shared parenting in child contact cases where domestic abuse is a feature, and child contact should be decided based on an informed judgement of what is in the best interests of the child.
  • An amendment to paragraph 4 of PD12J to displace the presumption contained in section 1 (2A) Children Act 1989 to require ‘contact at all costs’ where the involvement of a parent in a child’s life would place the child or other parent at risk of suffering harm from abuse.
  • An amendment to paragraph 6 of PD12J for the court to ensure the court process is not being used as a means in itself to perpetuate coercion, control or harassment by an abusive parent.
  • An amendment to paragraph 10 of PD12J for the court to consider more carefully the waiting arrangements at court prior to the hearing, and entrance and exit to and from the court building.
  • An amendment to paragraph 28 of PD12J for the court to afford further protection for the alleged victim of abuse from cross-examination by an unrepresented alleged perpetrator.
  • An amendment to paragraph 33 to include a provision that in a case where DV has been proved, a risk assessment, the court shall obtain a safety and risk assessment conducted by a specialist domestic abuse practitioner. The court should also consider whether it will be assisted by any social work, psychiatric, psychological or other assessment of any party or the child and if so make directions for such an assessment for a report to be prepared.
  • An amendment to paragraph 38 PD12J. Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre or contact supervised by a parent or relative, is not appropriate.
  • Greater consistency and clarity of language by adopting a common test of ‘protection from risk of harm’ including a definition of ‘harm’ specifically defined in PD12J, adopting the language of section 31(9) of the Children Act 1989.

Sir James Mumby has endorsed the above revisions to Practice Direction 12 J stating that he wished ‘to see them implemented in full as soon as possible’ save for the proposed amendment to paragraph 28 – (prevention of alleged perpetrators cross-examining alleged victims) which requires primary legislation.

He proposes to invite the views of the Family Justice Council and the Family Procedure Rule Committee at its next meeting on 6th February 2017. Following that he will invite the Lord Chancellor to approve the amendments to PD12J as soon as possible.

In relation to the proposed amendments to paragraph 33, it remains to be seen how this will operate in practice, as there remains a difficulty with regard to the funding of such assessments where in a number of cases, at least one party is a litigant in person.

See the full article in Family Law Week at: http://www.familylawweek.co.uk/site.aspx?i=ed175460

To see the President of the Family Division’s latest view see link below:

https://www.judiciary.gov.uk/wp-content/uploads/2014/08/view-from-the-president-of-family-division-16-jan-17.pdf

You can view the Cobb Review and proposed changes to Practice Direction 12J at:

https://www.judiciary.gov.uk/wp-content/uploads/2017/01/PD12J-child-arrangement-domestic-violence-and-harm-report-and-revision.pdf