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Domestic Violence and the Impact on Contact Re-examined

Cris McCurley, Partner in Ben Hoare Bell LLP and advisory board member of Rights of Women and Women’s Aid, considers recent developments concerning contact where there has been evidence of domestic violence, and the events which have led to them.

Cris McCurley, Partner, Benn Hoare Bell LLP

Cris McCurley, Partner, Ben Hoare Bell LLP

In 2004 Women's Aid published a report which changed the face of child contact where there was evidence of domestic violence between the parties. The report – Twenty-nine child homicides: lessons still to be learnt on domestic violence and child protection (Saunders H. 2004 Women's Aid) – spanned a period of 10 years, and the murder of 29 children in 13 families, by their fathers who had been found to be violent to their mother, many of them significantly so, but whom the family court had deemed safe to have contact with their children. In three of the cases reviewed, the court had granted unsupervised contact to a father known to be very violent (and in one case the father was granted residence) but did so against professional advice.

Several of the homicides occurred during overnight contact, and in many cases (9 out of the 13) the father was known to the court to have mental health issues (including depression and suicide threats or attempts), and many were families known to Children's Social Care as experiencing domestic abuse.

The report notes a serious lack of knowledge on the part of all professionals involved in public and private children's family law about the impact of domestic violence, and a very narrow understanding of the risk a violent partner of one parent poses to their children. The report made a number of recommendations, some of which formed the basis of the research and consultation which eventually became PD 12J 2008, introduced by the then President of the Family Division, Sir Nicholas Wall.

In his speech to the Resolution conference that year he said:

"We are now much more acutely aware of the significance of domestic abuse in contact cases. Gone, I think, are the days when a man could be violent to the mother of his children and yet could still be considered a good father.  We are much more aware of the risks to children posed by domestic abuse, and I think this has helped to underline the proposition that, in English Law, contact is the right of the child, not the right of the parent, and that the child's safety, and well-being, in contact is paramount."

This practice direction was warmly received by those representing victims of domestic violence and their children, and was a very useful tool for several years. However, other issues impacted the family justice system, not least of all the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which decimated legal aid provision in the family courts resulting in a significant rise of litigants in person in private law children proceedings. This raised, amongst other issues, the question of whether an abusive partner, acting as a litigant in person, should be able to cross-examine a victim in court, and if not, what the alternative should be?

At the same time, there was a lot of debate in the profession and amongst lay clients and interest groups questioning how fair the family justice system was towards non-custodial fathers. Although research conducted jointly by Warwick and Reading Universities found a similar success rate between the genders, Women's Aid felt the climate was turning against protection of children, to one of 'contact at all costs', citing the changes in family arrangements and the assumption of shared care (see s 1(2A) and (2B) of the Children Act 1989, as inserted by s 11 of the Children and Families Act 2014) as having a retrograde impact on the protection of children in cases where there was domestic abuse. Cuts in children's social care and to CAFCASS have also led to less thorough safeguarding of children in the court system.

In January 2016, Women's Aid published the second report about infant murder in court agreed, or ordered, contact: Nineteen Child Homicides - what must change so children are put first in child contact arrangements and the family courts. Again, they had researched serious case reviews of deaths of children during contact with a father known to the court to be, or have been, violent to the mother. Practice Direction 12J had been amended by the private family law working group, chaired by Cobb J,  in line with the provisions of the Children and Families Act 2014, specifically to strengthen  the presumption of parental involvement in children's lives in Children Act 1989 s1(2A). The combination of this and LASPO are cited in the report as being two major factors that have  endangered the lives of children who have court agreed, or ordered, contact with their fathers known to the court to be violent.

Of the cases cited in the second of the two Women's Aid reports, none is more illustrative than that of Claire Throssell, whose two children were murdered by their father, Darren Sykes, during contact. Her MP, Angela Smith, told the story of the murder of her two sons, Jack aged 12 and Paul aged 9, to a packed debate on the issue lobbied for by Women's Aid on the 15 September 2016.  The boys had gone to contact, and their father sent them up to the loft in the former matrimonial home to play with a new train set. He then locked them in and set fires downstairs in the house.  In a chilling post script, it emerged that Sykes (who also died in what was a murder/suicide) had cancelled the home insurance the previous day. Ms Throssell was later to say that he 'wanted to take everything I had from me', illustrating how contact with children and indeed court proceedings themselves, are used by violent partners to further abuse and control their former partners.

Using this case and other examples from 19 Child Homicides, Women's Aid were able to demonstrate to the House of Commons that significant changes had to be made to Practice Direction 12J to prevent further deaths. Also considered was the APPG report on Women's Aid's Child First campaign, which called for a re-think about how the Family Justice service as a whole treats victims of violence and their children. As a result, a number of recommendations were made, and a meeting was arranged between Women's Aid and the President of the Family Division, Sir James Munby,to discuss a way forward. He in turn tasked Cobb J to revise PD 12J and to consider all options.

The draft version of the PD which was published on 20 January 2017 makes a number of significant changes. Most significantly, there has been an important amendment of the 2014 change of the presumption in CA 1989 s1(2A), moving away from 'contact at all costs' with a new para 4 of 12J which displaces the presumption where contact could place a child's life at risk or the other parent's life at risk, or either at significant harm. This will offer the practitioner a vital tool in protection cases.

Other changes introduce requirements for better safety in the court arena, although with the cost cutting measures to the court estate, including court closures, these are likely to be difficult to put into effect. So is the direction that 'Children must always be listened to' given the resource shrinkage on all fronts. It is heartening however to see that Cobb J considers front line domestic violence professionals as experts who can provide safeguarding assessments to assist the court in determining risk,; this is not only a welcome recognition of their professionalism and expertise, but will hopefully reduce delay caused by assessment time scales.

Paragraph 6 is amended to highlight the importance of the court and professionals serving it to be very alive to the fact that many abusers, finding themselves blocked from any form of access to their former partner, issue contact proceedings as a means of engaging the victim. Those specialising in this work are only too aware of this strategy, but it is often dismissed by judges as not credible, sometimes in the face of significant supporting evidence. Its explicit inclusion will serve as a reminder and a warning.

Similarly, significant is the new para 28 which prevents judges and magistrates from allowing an unrepresented abuser to cross-examine a victim, and vice versa. In parliament on the 9 January 2017, following a call for urgent statutory measures by Munby LJ In his 16th View from the President's Chambers published 19 January 2017, Justice Minister Sir Oliver Heald committed to introduce primary legislation on this point 'within weeks'.

It was with some frustration that the President notes in January 2017 that although provisions had been introduced into the criminal jurisdiction preventing abusers cross-examining the abused (see the Youth Justice and Criminal Evidence Act 1999, ss 23-30), no such provision had so far been made within the family jurisdiction, in spite of the same issues of violence, fear, control manifestly being a common feature of the relationships between the parties.

In 2014, the President had established the Children and Vulnerable Witnesses working group, jointly chaired by Mr JusticeHayden and Ms Justice Russell. The group was productive, producing an interim report in July 2014, and a final report in March 2015, both making remarkably similar recommendations to those now appearing in the new Practice Direction. The change is long overdue, but it is not without its difficulties.

The Justice Minister has indicated that he will introduce urgent primary legislation, possibly by parachuting it into the Children and Social Work Bill, currently before Parliament, and by doing so without further consultation. To do this, however, risks an essential measure potentially failing as a result of a quick fix which may not, ultimately, be fit for purpose.

Some immediate concerns include the different burden of proof between the jurisdictions, with the far higher burden lying with the criminal court. Criminal practitioners have rightly pointed out that until findings are made the abuser is, in most cases, simply 'alleged', yet may be facing decisions which will terminally rupture family relationships. They argue that the alleged victims in such cases should not be offered such an unfair advantage so as to tip the balance of Article 6 so far in their favour that the respondent is prejudiced.

Another obvious concern is that the two systems are so inherently different that a simple 'lift and shift' of the procedure in the criminal courts into family proceedings is short sighted. Questions to be answered include who will be the advocate for cross-examination? How much will they read/ be aware of before taking part in what could be a critical hearing? How will they be remunerated, and will they have any potential liability in the event that the alleged perpetrator does not like the outcome?

Overall, the new Practice Direction 12J is a long awaited and well received guidance to the court and to practitioners which will hopefully avoid any more deaths in court ordered contact. One word of caution must be sounded nevertheless. It has been so long in the delivery that it would be a tragic waste if it were not to be implemented in primary legislation without a proper ironing out of potential practical pitfalls.