The revised Practice Direction 12J: Child Arrangements & Contact Order: Domestic Violence and Harm

On Thursday 14th September 2017 the President, Sir James Munby released a Circular about the Cobb Review of PD 12J (commissioned by the President and published in January 2017). Mr. Justice Cobb had also published a draft amended PD 12J with his review, which I addressed in an earlier article for Family Law Week.  The final amended PD 12J was published and sent out with the President’s Circular. It came into force on 2nd October 2017. After the Cobb Review was published In January 2017, it generated representations by bodies such as Families Need Fathers and there was a consultation process with the Family Justice Council and the Family Procedure Rule Committee. The Cobb draft was amended and resulted in the final version. It will unfortunately require further amendment ‘if and when’ (The President’s Circular) the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators is enacted. The President made the decision not to wait for that legislation and to proceed without delay. The Cobb draft had provided a prohibition restricting such cross-examination, which has not made it to the final draft. In fact, the new PD does not mention that topic at all, but it is intended that it will be amended. In the Circular: The President says:

‘I urge all judges to familiarise themselves with the new PD12J and to do everything possible to ensure that it is properly complied with on every occasion and without fail by everyone to whom it applies.’

He says he expects the Judicial College to provide high quality training in ‘domestic violence’ to all the family judiciary, as recommended in the Cobb Review. The Circular concludes:

‘Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD 12J plays a vital part.’

1. Introduction: Background and context to the Review The biggest and most fundamental changes are:

1. The presumption of contact can now (explicitly) be displaced;
2. The practice direction is (still) mandatory – there is stronger language: ‘the court is required’… (although the previous wording ‘the court should’ could be argued in that sense);
3. The court must be satisfied any contact ordered does not expose to the ‘other parent’ and/or the child to risk of harm, rather than considering the risk just to the child;
4. The definition of ‘domestic abuse’ is widened and specifically includes cases of abandonment for the first time (where a spouse is abandoned abroad);
5. There are changes in relation to arrangements at court;
6. There is a presumption against making interim contact orders where there are disputed allegations of domestic abuse;
7. There are mandatory requirements as to what conclusions of the court must be recorded in orders or schedules to orders;
8. The introduction of the ‘expert safety and risk assessment’;
9. The introduction of the concept of whether the risk of harm is unmanageable or manageable’;
10. The requirement on the court to give reasons if (i) it finds domestic abuse proved and makes an order for contact with the perpetrator and (ii) why it takes the view the order made will not expose the child to risk of harm;
11. Where a risk assessment has concluded that a parent poses a risk to the child or to the other parent, supported contact either by a supported contact centre or by a parent or relative is not appropriate.

This major review of the law came about 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. After that debate 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 change of the terms ‘should’ to ‘must’ reflects this. The recent review by Mr. Justice Cobb was wide-ranging and multi-disciplinary, consulting academics, judges and women’s rights groups including Women’s Aid and, 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. 2. The key recommendations Of all the recommendations, Mr. Justice Cobb, in his report considers the following to be key:

1. 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 the child(ren) and non-abusive parents are understood and consistently prioritised;
2. 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;
3. 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.
4. 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.
5. 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. 3. Problem solved? 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? 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 the reference to ‘professional understanding’ should include 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 (although this was not implemented as suggested by Mr Justice Cobb. It was watered down). 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 ‘other parent’ (parent with care). This principle was already in PD 12J. In fact when one looks 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? 4. The key revisions The key revisions contained in the revised PD 12J are: 1. The presumption of contact can now (explicitly) be displaced The presumption 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’. So it does not necessarily mean direct contact anyway. This presumption applies when the court is 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)). For the purposes of applying the s.1 (2A) presumption, the word ‘parent’ only comes 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 can be displaced (as it always could) but the court ‘must’ now ‘consider carefully whether the statutory presumption applies.’ Paragraph 7 (new PD) says:

‘In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.’

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. The substance is not changed, have always been able to rebut the presumption on evidence or risk of harm. However, it draws it to the court’s attention and it must be specifically considered in all (not just domestic abuse cases) but particularly in domestic abuse cases. This is somewhat watered down from the Cobb proposed draft: ‘where the involvement of a parent in a child’s life would place the other parent at risk of suffering harm from domestic violence or abuse, the presumption in s.1 (2) A shall not apply (paragraph 4). The new provision, however, 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 ‘having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.  Secondly, it expands on the definition of harm and is more specific in that refers to ‘harm by domestic abuse’ rather than just ‘harm’ as previously. If this test is met, the presumption will be displaced. 2. The Practice Direction is mandatory It always was but it appears that the courts did not realise this, so the language has been made clearer. “The court is required’ as opposed to the ‘the court should’ (paragraph 2). You may think it was already sufficiently clear but there appears to be some doubt about that.  Throughout the Practice Direction, the words ‘the court may…the court shall…should’ have been changed throughout to ‘must’. It also makes it clear by the addition of the word ‘carefully’ before ‘scrutinized’ (paragraph 6) that much more scrutiny needs to take place by the courts before CAO are made, whether by consent or not. 3. The court must be satisfied any contact ordered does not expose to the ‘other parent’ and/or the child to risk of harm Paragraph 5 of the Practice Direction has been amended so that ‘the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.’ Wherever there is mention of an evaluation of risk of harm in the new Practice Direction, it adds in consideration to be given to ‘the other parent’ as well as the child, whereas it was previously just to be applied to potential harm to the child. 4. The definition of ‘domestic abuse’ is widened and specifically includes cases of ‘abandonment’ (where a spouse is abandoned abroad) Paragraph 3 sets out the definitions. Throughout the Practice Direction the previous language of ‘domestic violence or abuse’ is replaced by the simple term ‘domestic abuse’ which encompasses all such behaviour.  The definition which was already widely drafted (set out in para 3) has been widened further to specifically include culturally specific forms of abuse such as forced marriage, honour based violence, dowry related abuse and trans national marriage abandonment. It also explains that abandonment is the practice whereby a husband, in England and Wales deliberately abandons or ‘strands’ his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from their mother. The new Practice Direction also makes new provision in paragraph 19 (directions as to fact finding hearings) for obtaining evidence in abandonment cases and how such hearings can be conducted. It provides for obtaining documents from abroad in such cases and also where the abandoned spouse remains abroad, what measures the court can take to ensure that person’s evidence can be put before the court, such as video link, or other methods to ensure that person can participate in the proceedings. A new test of ‘harm’, ‘development’, ‘ill treatment’ and ‘health’ is now specifically defined within the Practice Direction (Paragraph 3) and adopts the language of S.31(9) of the Children Act 1989. It is similar to the one used in care cases giving a uniformity to the language used in the Children Act 1989 save it makes specific reference to ill treatment by way of domestic abuse or otherwise. 5. Changes in relation the arrangements at court Paragraph 10 sets out how the court is to deal with special arrangements at court and strengthens the language used from ‘shall’ to ‘must’ ensure ‘so far as practicable that appropriate arrangements are made for the hearing including the waiting arrangements and arrangements for entering and exiting the building.’ This is also largely already contained in the current PD 12J 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 per cent of women who had been to the family courts had no access to any special measures. Astonishingly 39 per cent were physically abused by their former partner in the family court. In addition, the APPG report spoke of women commonly being followed, stalked, harassed and further traumatised after leaving court. 6. There is a presumption against making interim contact orders where there are disputed allegations of domestic abuse Paragraph 25 sets out:

‘where the court gives directions for a fact finding hearing, or where dispute allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including  controlling or coercive behaviour).’

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 an ‘unmanageable’ risk of harm. This is significantly different from the former provision, which only applied where the court ordered a fact-finding hearing, whereas the revised wording applies when a fact-finding has been directed or ‘where disputed allegations of domestic abuse are otherwise undetermined’. The former wording was 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’. That allowed a much wider discretion to order interim contact than will now be the case. The new Practice Direction also strengthens the language used in relation to the prohibition in paragraph 12 from making any interim CAO in the absence of Cafcass safeguarding checks from ‘shall not’ to ‘must not’ unless it is to protect the safety of the child ‘and/or safeguard the child from harm’ (added). At the FHDRA or the ‘earliest opportunity’ the court must (paragraph 14) record on the face of its order whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court and specifically ‘whether the child and/or parent would be at risk of harm in the making of any child arrangements order’. The provision as to risk of harm for child or parent is new. 7. There are mandatory requirements as to what conclusions of the court must be recorded in orders or schedules to orders Paragraph 8 sets out that when the court is considering making a CAO by consent and considering whether there is any risk of harm to the child, the court must consider all the evidence (this is the same as before). If the court directs a s.7 report (which it may do) to be provided orally or in writing, before making its decision, it must ask for information about any advice given by the Officer to the parties and whether they or the child have been referred to any other agency including the LA. If the report is not in writing, the court ‘must make a note of it’s substance on the court file and a summary of the same shall be set out in a schedule to the relevant order.’ The language was changed from may and shall to must and setting it out in a schedule is also new. At the FHDRA or the ‘earliest opportunity’ the court must (paragraph 14) record on the face of it’s order whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court and specifically ‘whether the child and/or parent would be at risk of harm in the making of any child arrangements order’. The provision as to risk of harm for child or parent is new. Where admissions are made at any hearing of domestic abuse toward any party or child the ‘admission must be recorded in writing and set out in a schedule to the relevant order’. The old provision was that any admission should be recorded in writing by the judge, but now it is ‘must’ and it must be set out in a schedule (paragraph 15). If the court determines that a fact-finding is not necessary, it must record the reasons for the decision. This was already there by was ‘shall’, not ‘must’ (paragraph 18). The court must record any findings made at a fact-finding hearing in writing (already there) in a schedule to the relevant order (paragraph 29). The Practice Direction makes it clear in its language that domestic abuse is not only dealt with at fact-finding hearings, but also at composite hearings and the requirements as to recording reasons etc. apply to those hearings (e.g. paragraph 28). 8. The introduction of the ‘expert safety and risk assessment’ In all cases where domestic abuse has occurred, whether or not following a fact finding the ‘court must if considering any form of contact or involvement of the parent in the child’s life, consider whether it would be assisted by any social work, psychiatric, psychological or other assessment (including an expert safety and risk assessment) of any party or the child’ and if so make directions for the assessment and report to follow. Any report will address the factors set out in para 36 and 37 (paragraph 33). In addition when the court takes steps to obtain information available locally to assist the parties and the child (not new), this is now to include local domestic abuse support services (paragraph 32). The court still has the power to direct any treatment or intervention as a pre-condition to making a CAO or an activity direction to attend the DVPP or similar. The Cobb recommendations went further: 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 was completely new and it was unclear who it was envisaged would do this, Cafcass? The new PD mentions ‘and expert safety and risk assessment’. It is unclear what this will be. 9. The introduction of the concept of whether the risk of harm is unmanageable or manageable When considering whether to make a CAO in all cases where domestic abuse has occurred ‘The court should ensure that any order for contact will not expose the child to an unmanageable risk of harm and will be in the best interests of the child‘  (paragraph 35). Where domestic abuse has been established ‘the court should apply the individual matters in the welfare checklist with reference to the abuse which has occurred and any specialist assessment obtained’ (paragraph 36). Additions have been made to paragraph 37 in relation to the matters the court should consider in every case where domestic abuse has been established (whether by finding or admission etc.). The court should not only consider the conduct of the parents to each other and the child but also the impact of such conduct. If the court is going to make a child arrangements order despite the domestic abuse having occurred, it must consider any expert risk assessment as well as the welfare checklist and consider the contact is safe and beneficial for the child the court should consider what if any conditions or directions are required: supervision, conditions as to interventions, specified periods and reviews (not new) (paragraph 38). 10. The requirement on the court to give reasons if it finds domestic abuse proved and makes an order for contact with the perpetrator and why it takes the view the order made will not expose the child to risk of harm

‘Where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must (was should) always explain whether by way of reference to the welfare checklist the factors on paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm (was ‘is safe’) and is beneficial for the child.’ (paragraph 40)

This is new wording. The court must not just consider that any such contact is safe, but why it will not expose the child to risk of harm, which is a different emphasis. 11. Where a risk assessment has concluded that a parent poses a risk to the child or to the other parent, supported contact either by a supported contact centre or by a parent or relative is not appropriate

‘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 former Practice Direction so that the court is specifically prohibited from ordering this, whereas formerly it was a matter for the court’s discretion (following the guidance contained in the Practice Direction about risk). In addition under the new paragraph 38 the court cannot order direct contact in cases where domestic abuse has ‘occurred’ without having first considered any expert risk assessment (and applying the Welfare Checklist), although the court is under no obligation to order such an assessment (see above paragraph 33), but it must consider doing so. 5. Summary and conclusion Many, if not most, of the proposed Cobb amendments have been made. The noticeable absences are (and they were the most radical):

1. The watering down of the displacement of the presumption of contact from it not applying where it would put the child at risk of harm to the court ‘considering carefully’ whether it applies.
2. Ensuring the court process is not used as a means to perpetuate coercion, control or harassment by an abusive parent.
3. Prohibition on unrepresented alleged abuser cross-examining an alleged victim.
4. Where domestic abuse has occurred the requirement that the court obtain a ‘safety and risk assessment conducted by a specialist domestic abuse practitioner working for an appropriately accredited agency.

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’. It is hoped 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. Let us hope this is the final and definitive practice direction in this area (save the forthcoming amendment in relation to cross-examination by alleged perpetrators) and that the implementation by the courts is as intended. Time will tell!