The presumption of contact can now (explicitly) be displaced
As a result of the work of the All Party Parliamentary Group on Domestic Violence (APPG) after the publication in January 2016 of the influential Women’s Aid report entitled ‘Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the family courts?’ there was a parliamentary debate in September 2016, where the APPG raised the issues contained in that report. The Government was called upon to review the treatment and experiences of victims of domestic abuse in family law courts. Under particular examination was the contrast between the significant progress of the criminal courts in recent years to adapt its processes for victims of abuse (and other vulnerable witnesses) and the apparent lack of similar progress in the family courts.
It was in light of these developments and the important issues raised by these reports that the President commissioned a review of PD 12J by Mr. Justice Cobb. The Private Law Working Group (chaired as it happens by Mr. Justice Cobb) had last revised the Practice Direction in 2014. PD 12J was originally implemented in 2008 because of concerns about child homicides and was in response to the first Women’s Aid report entitled ’29 Child Homicides’. When it was revised in 2014, it was as a result of further research for the Family Justice Council about the ‘patchy’ way (according to the APPG findings) the Practice Direction was being implemented by the courts and the use by the courts of fact-finding hearings. This was despite the Practice Direction being obligatory, not discretionary, in its application. As a result of that review, the definition of domestic abuse was substantially amended, and more definitive guidance for the courts was given on the implementation of the Practice Direction and, most importantly, the circumstances in which interim Child Arrangements Orders could be made were tightened up. That was the intended effect, in any event.
However, this revised PD 12J of 2014 unfortunately appears not to have had the impact hoped for in its application by the courts, and concerns continued about how the family courts are dealing with cases of domestic abuse. It appears that it is still not being taken sufficiently seriously by the family courts, or effectively and consistently implemented by them.
The current review by Mr. Justice Cobb has been wide-ranging and multi-disciplinary, consulting academics, judges and women’s rights groups including Women’s Aidand, in particular, the report ‘Nineteen Child Homicides’ referred to above and other research papers on the effects of domestic violence in the context of child contact and court ordered child arrangements.
One of the most disturbing facts, highlighted by Mr. Justice Cobb in the review was that in the cases of at least 12 children (in seven families) of the 19 killed, contact with the perpetrator (the father) was arranged through the family courts.
The key recommendations
Of all the recommendations, Mr. Justice Cobb, in his report, considers the following to be key:
- The Government and senior leaders in the Family Courts and Cafcass need to take action to bring about cultural change within the Family Court system to ensure that the safety and well-being of child(ren) and non-abusive parents are understood and consistently prioritised;
- Children should always be listened to, and their safety must always be at the heart of any child contact decision made by the family court judges;
- Children’s experiences of domestic abuse and its impact on them should always be fully considered by the family court judiciary with an acknowledgment that post-separation abuse is commonly experienced by non-abusive parents.
- The Ministry of Justice, and the President of the Family Division, must clarify that 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 judgment of what is in the best interests of the child.
- The President of the Family Division must ensure family court judges never order child contact in supported contact centres where a risk assessment has found that the abusive parent still poses a risk to the child or non-abusive parent.
The last two recommendations were directly at the President’s request, as pointed out by Mr. Justice Cobb. It is clear from this list that the ‘objectives’ are for there to be a complete cultural change in the way the family courts are dealing with these cases.
The courts have so far failed to deal effectively and consistently with cases involving domestic abuse as intended by the original PD 12J. The substantial revisions in 2014 referred to above were, it seems, unable to remedy this. Will this third attempt be successful? I certainly hope so, because as a family practitioner I have had serious concerns about orders the court have made, particularly, although by no means exclusively, by magistrates. And I say that having no axe to grind on either side, acting for fathers and mothers in equal numbers in these cases.
Interestingly, the conclusions reached by those involved in the consultation process and by the APPG, were that the basis of the problem is the poor professional understanding by the family courts i.e. judges and magistrates of the nature and impact of domestic abuse. As a result, one of the main recommendations to come out of the review was for specialist training and on-going professional development for the Judiciary.
However, I would argue that in that reference to ‘professional understanding’ should be included Cafcass because the quality of their input into cases varies widely depending on the experience and training of the individual Cafcass Officer. Given that the courts are directed to follow their recommendations or give reasons why, this could in my view be playing its part in the problem. Hopefully the recommendation for specialist risk assessments by an accredited Agency will resolve this.
It seems to me that the focus has narrowed with this new proposed PD 12J and what appears to be in much clearer focus is the child – the child’s safety and well-being and that of the ‘non-abusive parent’, which is a term used for the first time. This principle was already in PD 12J, in fact when you look at the revisions many of them were already there. The message however, did not appear to get through. These revisions will re-frame all of what has gone before no doubt in the hope that the message will finally get though. The language is more robust, the intention is clearer. Will this be the final revision? I do hope so.
The key revisions
The key revisions contained in Mr. Justice Cobb’s proposed draft of the revised PD 12 J are:
1. The presumption of contact contained in s.1(2A) of the Children Act 1989 (amended by the 2014 Act) is stated as: ‘a court, is as respects each parent to presume, unless the contrary is shown, that that involvement of that parent in the life of the child concerned will further the child’s welfare’. ‘Involvement’ is defined as ‘involvement of some kind’ which includes both direct and indirect contact, ‘but not any particular division of a child’s time’. This presumption applies when the court are considering making, varying or discharging any s.8 order or SGO, which is opposed (S.1(4)) or an order for PR (s.1(7)). The word ‘parent’ is defined for the purposes of applying the s.1(2A) presumption as only coming within that definition if: ‘that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm’. It is presumed that they are such ‘unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement’ (S.1(6)).
This presumption is explicitly displaced. This is the biggest change made. The concerns which had been raised were that s.1(2)A effectively required the courts to allow ‘contact at all costs’ in all cases without a proper evaluation of the risk of harm from domestic abuse. So under the proposed draft where the involvement of a parent in a child’s life would place the other parent at risk of suffering harm from abuse, the presumption would be displaced (Paragraph 4).
The original provision, as can be seen, already allowed for that presumption to be displaced if the absent parent’s involvement in the child’s life put the child at risk of suffering harm. It did make a presumption though that the parent’s involvement in the child’s life did not put the child at risk of suffering harm, unless there was evidence before the court to suggest the involvement (in whatever form) put the child at risk of harm.
The new proposed provision says exactly the same thing, but makes it more explicit. However, it does two new things, it includes the other parent, so that it is not just the child the court is to consider, as previously, but also the parent with care of the child, so the court must consider any risk of suffering harm to the child or parent. Secondly, it expands on the definition of harm and is more specific in that refers to ‘harm arising from domestic violence or abuse’ rather than just ‘harm’ as previously. If this test is met, the presumption will be displaced.
2. A requirement that the court is 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. (Paragraph 6). This brings the PD into line with the new offence of ‘coercion’ introduced by the Serious Crime Act 2015 and which came into force in December 2015. It also says that ‘the court must be satisfied that any contact ordered with a parent who has perpetrated violence or abuse does not expose the child and/or other parent to the risk of harm arising from domestic violence or abuse and is in the best interests of the child’. This is very similar to the existing Practice Direction. Indeed the wording is the same save that rather than referring to ‘harm arising from domestic abuse’ it simply says ‘risk of harm’. (This is an amendment made throughout the Practice Direction.) It also makes it clearer by the addition of the word ‘either’ that neither the child nor the parent that must be exposed to the harm.
It does significantly also expand the current Practice Direction though, to specifically ensure that the court process itself is not used as a means of coercion, control or harassment.
3. The courts are to consider more carefully the waiting arrangements at court prior to the hearing and arrangements for entering and exiting the court building (Paragraph 10). This is also largely already contained in the current PD 12 J although the new provision gives specific arrangements the court must consider. The evidence presented to and considered by Mr. Justice Cobb included Women’s Aid reports (from a survey in 2015) that 55% of women who had been to the family courts had no access to any special measures. Astonishingly 39% were physically abused by their former partner in the family court. I was shocked to see this in the report. In addition, the APPG report spoke of women commonly being followed, stalked, harassed and further traumatised after leaving court (I have seen plenty of evidence of that myself, unfortunately).
4. Further protection for the alleged victim of abuse from being cross-examined by an alleged unrepresented perpetrator (paragraph 28). This has been widely reported in the press and appears to be the main element picked up by the Media generally.
5. Interim orders will no longer be made by the court before relevant facts have been determined: ‘the court should not make an interim child arrangements order unless it is satisfied the child and the parent who has made the allegation and is at any time caring for the child are not exposed to a risk of harm (bearing in mind the impact which domestic violence against a parent can have on the emotional well-being of the child, safety of the parent, and the need to protect against controlling or coercive behaviour) and that the order is in the interests of the child’ (Paragraph 25). This is a very significant change. It raises a presumption against interim contact for the first time (in cases involving domestic abuse). It therefore puts the onus on the parent who is the subject of the allegations to satisfy the court that such contact will not expose the parent making the allegation nor the child to risk of harm. Not ‘harm from domestic violence and abuse’ as defined elsewhere, but just ‘harm’ although that definition does also specifically apply to interim orders by virtue of Paragraph 26 in any event.
This is significantly different from the current provision, which only applies where the court orders a fact-finding hearing, whereas the proposed revised wording applies when a fact-finding has been directed or ‘where disputed allegations of domestic abuse are otherwise undetermined’. The current wording is that when a fact-finding is ordered ‘the court should consider whether an interim child arrangements order is in the interests of the child; and in particular whether the safety of the child and (bearing in mind the impact which domestic violence against a parent can have on the emotional well-being of the child) and that the parent who has made the allegation and is at any time caring for the child can be secured before, during and after any contact’. This allows a much wider discretion currently to order interim contact than will be the case.
6. 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 (Paragraph 33). This is completely new in that although there were, or should have been Cafcass reports ordered to assess risk, under the new proposal reports will be carried out by specialists who have undergone specific training and accreditation. Whether in practice this will be Cafcass Officers with the specific training and accreditation is unclear.
7. Where a risk assessment had 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 (Paragraph 38). This is new and changes the current PD 12J so that the court is specifically prohibited from ordering this, whereas currently it is a matter for the court’s discretion (following the guidance contained in the Practice Direction about risk). In addition under the proposed Paragraph 38 the court cannot order direct contact in cases where domestic abuse has ‘occurred’ (presumably determined through admissions or findings) without having first considered an expert risk assessment (and applying the Welfare Checklist).
8. A new test of ‘protection from risk of harm’ and ‘harm’ is now specifically defined within the Practice Direction (Paragraph 3) and adopts the language of S.31(9) of the Children Act 1989. This is also new and its helpful to have a clear definition and one that is used in care cases giving a uniformity to the language used in the Children Act 1989.
As the APPG report concludes, if PD 12J (which it considered had been implemented across the courts in a ‘patchy’ way) had ‘always been put into practice and strictly followed’, a number of the current concerns would have been addressed without the necessity to do anything further, and the ‘safety and well-being of women and children would be far better protected’. This of course does not (and cannot) apply to the completely new provisions, they appear to have been necessary changes that needed to be made in any event.
(The proposed new PD 12J can be viewed in full along with the Mr. Justice Cobb’s Review by clicking on the PDF attached). It is unclear when the new Practice Direction will be in force. Mr. Justice Cobb calls it a ‘proposed draft of the revised PD 12 J’ which he has recommended to the President.
I sincerely hope that these revisions bring about the changes hoped for in the way domestic abuse cases are dealt with by the family courts. I suspect that a great deal will depend on whether the Judicial College makes the recommended specialist training available to the Judiciary and whether Ministers make the budget available for that to happen. Mr. Justice Cobb specifically refers to this in his report as a crucial factor in the success of the changes.
Until there are no child homicides, or whether that is even a realistic aim to aspire to (I would hope it is), every effort will need to be made to ensure that these cases are dealt with in accordance with PD 12J.
The full article has been published on Family Law Week and can be accessed here http://www.familylawweek.co.uk/site.aspx?i=ed176938