Children at risk of psychogical or physical abuse must not have contact with parent, judges told (sic)

This was the headline in The Times that arose from the publication by the President of the Family Division of a revised Practice Direction 12J (PD12J). PD12J is the part of the family court rules that sets out how the court should deal with allegations of domestic abuse.

The background to the revisions to PD12J is concerns raised by Women’s Aid (amongst others) about failures of the family court to take domestic abuse sufficiently seriously and failures to protect women and children in some cases. Whilst the criticisms undoubtedly had some merit we have written elsewhere about the evidence base for the campaign and criticisms.

In the wake of these concerns being raised very loudly and persistently the President asked Mr Justice Cobb to conduct a review of Women’s Aid. This was not publicly known until the results of the review were published in January 2017. Mr Justice Cobb proposed a number of revisions, all of which the President in his Sixteenth View said he would adopt, bar one. The rejected proposal was a ban on the direct cross examination (questioning) of an alleged victim by an alleged perpetrator, a situation which the President deprecated but considered could only be remedied by Parliament enacting new legislation (such legislation was subsequently put before Parliament just before the snap general election, and sadly fell with the Parliament. It has yet to be reintroduced).

When the plan to review PD12J became known in January the Guardian reported that “Senior judges [were] taking steps to end the presumption that a father must have contact with a child where there is evidence of domestic abuse that would put the child or mother at risk”. That wasn’t accurate, for reasons we set out here (not least that the nature of the presumption was wrongly explained by the Guardian). But there were plans to rejig the wording used to summarise the effect of the presumption contained in section 1 of the Children Act 1989.

So, is the headline accurate and what changes have in fact been made?

The headline here is drawn from the revised wording of the PD, but as is so often the case, it’s somewhat more complicated than the bald statement in the headline, and it’s necessary to read the whole PD.

In her article Frances Gibb goes on to say

“Children must not be allowed to have contact with a parent if there is any risk of psychological or physical abuse, according to new guidelines for judges. Court orders should not even be made permitting a child and a parent to be together under supervision at a special contact centre, the guidance states.”

Firstly, nothing in the practice direction attempts to or could change the law. The law says a court must consider all the circumstances before making a decision about contact, and whilst a risk of psychological or other harm will undoubtedly be highly relevant consideration, the law isn’t that there is an automatic ban on contact if there is any risk of abuse. Taking a purist view, every child is at risk of psychological or physical abuse from a parent – it might be a very low risk for a parent with good mental health, no substance abuse problems or history of interpersonal difficulties or traumas, and with no history of violence or abuse. But it’s a risk. And many parents are guilty of psychological abuse – momentarily at times of extreme stress. It emphatically doesn’t mean they should never see their child. Stripped of its context and splayed across the top of a newspaper page in black and white this bald assertion is meaningless.

It’s important to be clear that the PD only relates to cases where allegations of domestic abuse have been made and are considered relevant to the question of contact but are outstanding, or where those relevant allegations have been made and proved. It doesn’t relate to all children that the family court deals with.

In fact, although you would not know it, almost everything in the new PD12J was in the old one. It’s right we should be reminded of it, made to re-read it, and that its critical importance should be underlined as it has been by the President in the note accompanying its issue

“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.”

In my recent experience these issues are still not always given proper regard, and domestic abuse of the less visible and obvious kinds is still sadly trivialized.

So what IS new?

Definition and scope of abuse

Firstly, the PD is specifically extended to cover proceedings both in the Family Court and High Court and to cover culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment (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). See the Al Jeffery case for an example. This is not a change that was raised by Womens’ Aid or canvassed by Cobb J.

Whilst the definition and terminology of abuse has been adjusted in this version, other than the expansion to include the culturally specific abuse mentioned above, it has not been expanded. Coercive and controlling behaviour have formed a part of the practice direction definition of abuse for some years and all that has really changed is that the encompassing phrase abuse is used to denote both physical violence and other forms of abuse, rather than the clunky “violence and abuse”. This is probably to avoid creating the mistaken impression that the latter is in a separate, less serious, category than the former. Abuse is abuse is abuse.

Presumption of parental involvement

As recommended by Cobb J the description of the presumption of parental involvement is refined somewhat, although interestingly not in the terms proposed by Cobb J. We (and others) had made the point that the proposed draft in the Cobb report was inconsistent with the statutory provisions in that it suggested that the statutory presumption could be disapplied based upon the risk of harm to a parent, whereas the statute does not permit the disapplication of the presumption on that ground – that is to say it would have attempted to change the law in a way that only Parliament can. This appears to have been taken on board.

The new wording now reads :

7. 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.

It is a different way of expressing the same thing than was used in the old version, but is not very obviously stronger, other than to flag specifically that the presumption does not apply in all cases.

Issues of risk of harm and safety

The language used in relation to harm, risk and safety has been adjusted, but not in an entirely clear way – in some places, if sentences are read in isolation, the PD appears to be more stringent / risk averse than in others.

Paragraph 25, relating to whether or not the court should make an interim contact order before it has decided whether allegations of abuse are true, now reads

“…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 child or 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).”

The parts underlined are new introductions, and the implication is that pending a fact finding decision the court should operate as if the presumption does not apply. This is not a controversial reading of the existing law, because the presumption is quite easily displaced – but it has not been spelt out in quite this way before. Instead of being warned to take care when making a contact order, Judges are now told not to make one unless… at this interim stage. It’s a subtle change of emphasis.

In relation to orders made after there have been findings or admissions, the requirement for the court to be satisfied that contact will be “safe” has been replaced with “will not expose the child to an unmanageable risk of harm and will be in the best interests of the child” (pa 35).

The important thing to remember is that this relates to decisions made at a point where the court has found proved allegations of abusive behaviour towards either the child or his parent. The risk in question is a risk of further abusive behaviour arising from the known and proven history. If you as a parent haven’t been proved to have abused your ex partner or child this stringent guidance about the consequences of ongoing risk does not apply. This might not be clear from the headline. And what’s more it isn’t just any level of risk that prevents contact, it is only unmanageable risks. In some cases for example, risk can be managed by supervision, or by supported handover. In others that won’t be appropriate.

But it isn’t actually quite as clear cut as all that. At the foot of paragraph 38 is this newly introduced passage :

“Where a risk assessment has concluded that a parent poses a risk to a child or to the other parent, contact via a supported contact centre, or contact supported by a parent or relative, is not appropriate.”

Strictly interpreted, this would act as a bar to anything other than indirect or professionally supervised contact regardless of the level of risk. We don’t think it can mean that even where a risk assessment says the risk is very low and that it can be managed appropriately in a supported contact centre, that there could never be anything other than professionally supervised contact.

We think this passage is what Frances Gibb bases her assertion that “Court orders should not even be made permitting a child and a parent to be together under supervision at a special contact centre” upon, but we think she has misinterpreted this new passage in the PD, as she is probably unaware of the distinction between “supported” contact and “supervised” contact.

Additionally, the final paragraph of the practice direction (40) has been slightly modified so that a previous reference to contact being “safe and beneficial” is replaced with “will not expose the child to the risk of harm and beneficial”. It now reads :

In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, 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 always explain, whether by way of reference to the welfare check-list, the factors in 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 and is beneficial for the child.”.

It’s unclear why in this passage the single word “risk” is used, whereas in preceding paragraphs the phrase “unmanageable risk of harm” is used. The only way that we can make sense of this switching between phrases is to assume that later references to risk are in fact to be read as meaning unmanageable risk, to ensure that the PD is consistent with the case law and the court’s obligations under Article 8 of the European Convention on Human Rights to act in a proportionate way when interfering in a parent or child’s article 8 rights (put very crudely, if a risk can be managed it isn’t necessary or proportionate to stop contact).

Cross examination by those accused of abuse

Interestingly, the passage in the old version of the PD that read

“victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence”

has gone, although this less emphatic passage remains :

“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”

The removed passage never enjoyed much support from judges or professionals, and has probably been removed to avoid any conflict with the hoped for law reform in this area.

The President says in his foreword that he has tightened up the requirements for the reasons for certain decisions to be spelt out in writing. In fact though, the practice direction always did require a judge to record these things in writing – the only change is that they must now specifically be recorded in or attached to the order itself. In our experience the order would be precisely the place that a judge would record a summary of the reasons to hold or not hold a fact finding hearing, or to order or not order interim contact anyway, so this is unlikely to result in a radical change in practice other than to promote consistency across all cases.

So, what’s the upshot?

Although the revisions to the PD are not radical, they are a signal from the senior judiciary of the importance of paying due regard to the PD as a way of ensuring that children and victims of abuse are kept safe.

We notice that some of the comments on The Times article (and no doubt elsewhere) raise concern that the revisions to the PD will cause (further) prejudice to fathers who are struggling to maintain a relationship with their children. We don’t think that the revisions will have a significant impact upon that issue – the impact on the wrongly accused parent (often a father) is significant before and after the revisions. The time it takes to sift the genuine from the false or exaggerated allegation inherently prejudices an innocent parent who is prevented from seeing their child whilst this process chunters on – the prejudicial effect of the passage of time is something that is difficult for courts to completely avoid if they are to try and keep children safe, other than through trying to balance the need to conduct trials robustly and fairly and the need to do so without delay.

We’d welcome the views of others on the correct interpretation of this PD.

Feature pic : Venus by Luis Argerich on Flickr (Creative commons) – thanks!