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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: 

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.