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Domestic Abuse - what the court needs to consider in child arrangement cases

View profile for Hannah Perry
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In 2016, the issue of domestic abuse and the Family Court came to the fore. Many recognised the Archers’ storylines as being of great assistance in bringing this issue to public notice. Domestic abuse was brought further under the spotlight with the All Party Parliamentary Group’s recommendations and with the publication of Women’s Aid’s ‘Nineteen Child Homicides’  report. The President of the Family Division acknowledged the need to review the Family Court’s approach to allegations of domestic abuse in cases where decisions are being made about where children are to live and who they are to spend time with.

The result is an updated practice direction – PD12J – – Child Arrangements and Contact Orders: Domestic Abuse and Harm - which came into effect on 02 October 2017. This is a ‘must read’ document for all family lawyers and those representing themselves in the Family Court, where the issue of domestic abuse has been raised.

Some of the headline changes are:

  • The much expanded definition of domestic abuse, replacing the outdated term ‘domestic violence’, thus recognising that abuse can take many forms and does not need to include actual physical violence.
  • No child arrangements order can be made by the court, even if the parents have agreed the terms, unless all parties are at court, the court has the Cafcass safeguarding checks, and the parties have spoken to the Cafcass  officer separately (unless the court is satisfied there is no risk of harm).
  • The court must check, at the earliest opportunity, and record on the face of any court order, if domestic abuse has been raised as an issue which is relevant to the decision making about the welfare of the child.
  • When a case involves disputed, or as yet undetermined, allegations of domestic abuse the court now has to be satisfied that is both in the best interests of the child, and  that the child or the other parent would not be exposed to an unmanageable risk of harm, before making an interim child arrangements order. For the first time, there is specific reference to the impact on the alleged victim of the making of an order, and the related impact on their ability to care for the child.
  • Fact finding can be an inquisitorial (i.e. investigative process) and the judge should ‘be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case’.
  • Consideration must be given, in cases where domestic abuse has been admitted or found to have occurred, whether the court would be assisted by expert evidence e.g.: a risk assessment.

The court ‘must’ consider whether the child in the case should be made a party to the proceedings and be separately represented – so this is a requirement, not an option. If the child is made a party, the court must also consider whether the case is being dealt with by the correct level of judge in the Family Court or High Court. The changes made to this practice direction mark a really important step forward in recognising the impact and risks surrounding domestic abuse and its treatment in the Family Court. 

However, alleged victims of abuse are still not protected as they should be by the family courts. This contrasts with the progress made by the criminal courts regarding vulnerable witnesses, and obtaining best evidence from them.  

The President of the Family Division said in his circular introducing PD12J  ‘we cannot await’ any proposed legislation restricting cross examination of alleged victims by alleged perpetrators  . It is important that judges and lawyers are trained to apply PD12J so the process is fair and vulnerable witnesses are protected. 

Mr Justice Hayden in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) says ‘It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator’ and Changes to the law are still needed to restrict the cross-examination of alleged victims by alleged Perpetrators. With the Government’s focus elsewhere, it is unfortunately a case of ‘watch this space’ 

If you would like advice about domestic abuse or cases involving children were there are allegations of domestic abuse please do contact our accredited specialists on 020 3440 8000 or by email at A_FamilyReferrals@tvedwards.com

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