Proposed changes to Practice Direction 12J – Child Arrangement and Contact Orders: Domestic Violence and Harm

Women’s Aid welcomes recommendations of Cobb Review

Women's Aid has welcomed the recommendations by Mr Justice Cobb for changes to Practice Direction 12J FPR 2010 – Child Arrangement and Contact Orders: Domestic Violence and Harm and, in particular, in relation to the rules concerning cross-examination of an alleged victim of domestic violence by an unrepresented alleged perpetrator.

The Cobb Review and appended proposed revised Practice Direction are here.

Mr Justice Cobb's Review was prompted by the Women's Aid report Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the family courts and a Parliamentary Briefing Paper which followed a hearing by the All Party Parliamentary Group (APPG) on Domestic Violence. Both papers included a number of recommendations for the Ministry of Justice, for the Senior Family Judiciary, and for statutory agencies involved in family law processes in relation to cases of domestic abuse in the family court.

In the latest View from the President's Chambers (the 16th), published on 20 January 2017, Sir James Munby sets out a very thorough historical survey of this issue culminating in the publication of Mr Justice Cobb's Review and the confirmation by Sir Oliver Heald, the Justice Minister, that the Government will proceed with primary legislation to ban cross-examination by unrepresented alleged perpetrators of the alleged victims of domestic violence. For the View, click here.

The Cobb Review sets out the key revisions as follows:

Paragraph 4 has been re-worked to go some way to addressing one of the main concerns of Women's Aid and the APPG that the presumption contained in section 1(2A) of the Children Act 1989 operates to require 'contact at all costs' in all cases, without a proper evaluation of the risk of harm from domestic abuse; therefore, 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, it is suggested that the presumption would be displaced.
Paragraph 6 has been amended to include a requirement for the court to ensure that the court process is not being used as a means in itself to perpetuate coercion, control or harassment by an abusive parent; no specific illustrations of this type of coercion or control have been included in the revised draft Practice Direction notwithstanding Women's Aid's keenness that they should be. However, Family Court judges plainly need to be alert to, and deal robustly with, the respondent who is uncooperative or obstructive in the litigation and/or in relation to the child arrangements themselves. Furthermore, Family Court judges should be sure that they understand the new offence of coercion ("controlling or coercive behaviour in an intimate or family relationship") which was introduced in the Serious Crime Act 2015 and which came into force in December 2015; this may be a training issue for the Judicial College.
Paragraph 10 includes a proposal for the courts to consider more carefully the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building; Women's Aid reports that 55% of women respondents to their recent survey (2015) who had been to the Family Courts had no access to any special measures. 39% were physically abused by their former partner in the family court. The APPG report speaks of women commonly being followed, stalked, harassed and further traumatised after leaving court.
Paragraph 28 has been amended to afford further protection for the alleged victim of abuse from cross-examination by an alleged unrepresented perpetrator.
Paragraph 33 recommends that in a case where domestic abuse has been proved, a court shall obtain a safety and risk assessment conducted by a specialist domestic abuse practitioner working for an appropriately accredited agency; this ties in with paragraph 38 (addressing the second of the specific recommendations of the APPG) that 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 has been introduced, by adopting a common test of 'protection from risk of harm'; 'harm' itself is now specifically defined within the Practice Direction, adopting the language of section 31(9) of the Children Act 1989.

Polly Neate, Chief Executive of Women's Aid, said:

"There should never be a presumption of contact where one parent is known to be a perpetrator of domestic abuse, as is made clear in the revised version Practice Direction 12J. The future implementation of the new Practice Direction represents a vital opportunity for the family courts to start getting it right every time: children's safety must be at the heart of all decisions made by the family courts – which, as our report Nineteen Child Homicides made painfully clear, is not always the case.

"We welcome this landmark opportunity to improve guidance for family judiciary in such cases, following our report Nineteen Child Homicides and the Child First campaign. We urge the Family Procedure Rule Committee, and Lord Chancellor and Secretary of State for Justice Liz Truss MP, to agree the new Practice Direction, with all of the changes set out by Mr Justice Cobb, without delay. It will help to protect children from unsafe decisions on child contact. We thank Sir James Munby and Mr Justice Cobb for their commitment to this work and the President's call that the report 'must be read, in full, by everyone involved in the family justice system.'

"This revision is a robust and comprehensive framework for what judges and magistrates must do when overseeing child contact cases where domestic abuse has been present. We welcome that the President sets out 'that more, much more, needs to be done to bring the family courts up to an acceptable standard, indeed to match the facilities and "kit" available in the Crown Court'. This revision must now be backed up with better access to protection measures in the family courts and regularly refreshed training for all family court judiciary, as Mr Justice Cobb's report sets out. Without a thorough understanding of the nature and impact of domestic abuse, the courts cannot manage these complex cases effectively or safely."

Cris McCurley, partner with Ben Hoare Bell LLP, commented:

"The revised PD 12J will be warmly received by all family law practitioners specialising in working with victims of violence. It does much to bring us back to first principles of the original 2008 PD 12J in that protection for victims of violence and their children is at the heart of the amendments, and an acknowledgement for the first time that abusers have used the court process itself to further the abuse. Training of the Judiciary is an issue that Cobb J sees as essential to a consistent, informed approach to cases in which violence and risk are significant factors. Women's Aid deserve enormous credit for their work in evidencing the devastating impact to victims and children when the principles in 12J are not properly applied."

For the review and appended Practice Direction, click here.

22/1/17

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