Senior judges are 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.


This was the headline and first paragraph of an article by Sandra Laville in The Guardian on 20 Jan 2017. It was followed by more wrongness :

…the presumption in the family court that there should be “contact at all costs” with both parents would be scrapped.

Here is what’s wrong about it :

  • There is no such thing as a “UK Judge”, unless you count the 11 Supreme Court Justices who handed down the Brexit Article 50 decision this week (The Supreme Court is the only court which can deal with cases from all of the four parts of the UK, but they don’t all have the same law). The Judges, are Judges of England & Wales. None of this applies in Scotland, which has its own legal system.
  • Judges can’t changes the law. Parliament changes the law. In this case, Parliament does it by approving a Statutory Instrument that amends the Family Procedure Rules. That Statutory Instrument comes from the Family Procedure Rules Committee, a committee created by Parliament, which the judges don’t control.
  • The law hasn’t changed yet. All that has happened is a judge (Mr Justice Cobb) has made some recommendations to change Practice Direction 12J (a bit of the Family Procedure Rules that relates to how judges should deal with cases involving allegations of domestic abuse), which the President of the Family Division agrees with. [edited for accuracy 5/2/17, thanks to David Burrows : Next, the Family Procedure Rules Committee will decide whether they agree, and if they do we can expect a new Practice Direction probably in the autumn. If this is all to be done by a practice direction then it is up to the President of the Family Division to agree to it (and nominally he gets the Lord Chancellor’s consent). The new practice direction is then tacked into the rules.]
  • There is no 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” or that “there should be “contact at all costs” with both parents”. Not even close. There IS a presumption that it is good for a child to be involved with both parents (not just fathers), and you can find it in section 1(2A) Children Act 1989, but it doesn’t apply where a child would be put at risk by that involvement. The presumption in s1(2A) of the Children Act doesn’t mention domestic abuse (it talks about risk more broadly) and risk to the mother is not referred to. So the presumption The Guardian talk about can’t be ended, because they made it up.
  • Once again, judges can’t change the actual law any more than they can change imaginary presumptions. Judges can’t change the presumption to make it say what fathers rights campaigners or women’s rights campaigners would like it to say – the presumption was the subject of a public consultation and took a long time to get through Parliament and was heavily amended on the way. It isn’t up to judges to tweak it or to decide to rip it up and start again. Their job is to apply it.

The phrases about presumptions that the Guardian uses (contact at all costs, a father must have contact with a child where there is evidence of domestic abuse…etc) are borrowed from Women’s Aid, who say that the Family Courts operate according to a principle of contact at all costs, which many would disagree with. It is misleading of The Guardian not to make clear that their description of the presumption is an assertion of the state of affairs rather than a statement of the law. It must be very confusing for parents trying to understand what presumptions do and don’t apply if they read headlines like this.

So, what actually is it this article trying to tell us about?

Okay, Practice Direction 12J tells judges how to manage cases involving allegations of domestic abuse. That’s pretty important and it’s been a hot topic of late. This week The President of the Family Division published a report he had asked Mr Justice Cobb to prepare for him, making recommendations about how that Practice Direction might be amended. He also published his own sixteenth “View” (update) which explains the background, and in particular sets out in detail the efforts that have been going on behind the scenes to improve how cases involving domestic abuse and vulnerable witnesses are handled by family judges, and the chronic frustration at the lack of resources or progress. The view seems to be a riposte to criticisms in the press since December that family court judges are somehow oblivious to the problematic experiences of many court users.

At the moment paragraph 4 of the Practice Direction 12J says this about s1(2A) presumption :

The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.

That’s a reasonably accurate summary of the s1(2A) presumption, although the reference to the other parent suffering harm is not in the act (maybe it should be, but the fact is it isn’t).

Cobb J proposes pa 4 should instead say :

Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in section 1(2A) of the Children Act 1989 shall not apply.

Cobb J explains it like this :

Paragraph 4 has been re-worked to go some way to addressing one of the main concerns of Women’s Aid and the APPG (see [10](a) above) that the presumption contained in section 1(2A) of the Children Act 1989 operates to require ‘contact at all costs’ in all cases, without a proper evaluation of the risk of harm from domestic abuse; therefore, where the involvement of a parent in a child’s life would place the child or other parent at risk of suffering harm from abuse, it is suggested that the presumption would be displaced;

The problem is that this new version of paragraph 4 is that it isn’t what the actual statute says. And it is far from uncontroversial to say that the presumption put in place by parliament requires “contact at all costs”. The presumption is very carefully crafted so that where evidence is provided to show there is risk (which might be arising from domestic abuse or something else) that can’t be managed the presumption is disapplied. The presumption doesn’t make courts promote unsafe contact. This amendment is likely to be the subject of further debate and, if amended as proposed, possibly of legal challenge at some stage.

There are other changes to the Practice Direction recommended. These are around emphasising that the court must ensure that the court process is not used as a means to perpetuate coercion, control or harassment by an abusive parent (not just during the hearing but also in the court building), around ensuring suitable caution is exercised when allegations remain outstanding and a parent is asking for contact in the meantime, and ensuring that specialist risk assessments or other expert assessments are carried out where findings are made. It is unclear from the report how such assessments could be funded since most parties are now litigants in person and cannot afford to pay.

Whilst Cobb J recommends that the Practice Direction should be amended to outlaw cross examination of complainants by alleged perpetrators of abuse, this is not an amendment that is likely to be adopted because The President considers that this is a change that would need to be made by Parliament directly, i.e. through primary legislation.

The parts of the recommendations which will have resource implications may be more complicated to get it from drawing board to implementation – ministers will not approve the redrafting of a practice direction that will lead to budgetary impacts until those financial implications have been worked through. The President makes clear in his “View” that is is one of the main reasons that the judges’ wish to see vulnerable witness reform has not been implemented to date.

The report also recommends enhanced training for all family court judges on issues of domestic abuse. This will be a matter for the Judicial College to deal with, as they are independent of the judiciary.

Ok, so what now?

At present, the judiciary have consulted with Women’s Aid and a very limited group of people in drawing up these amendments. It is understood there will be a consultation on the reform of the rules around vulnerable witnesses. It is unclear however, whether there will be any broader consultation in respect of PD12J before it’s implementation – but since this is not mentioned in The President’s View it seems unlikely.

David Burrows has written a response to the President’s View and the proposed revisions to PD12J here.