Category Archives: domestic violence

Practice Direction 12J

Regular readers will be aware of Women’s Aid’s initiative “Child First: 19 Child Homicides”. The campaign objective was to further frustrate fathers’ access to their children after divorce or separation by claiming, on the basis of a very small number of specially selected cases, that fathers are a danger, rather than a benefit, to their families – women and children both.

The above link now bears the triumphant cry “campaign win!”. Indeed it is. Well done, ladies. Pity about the children.

This site published a rejoinder to 19 Child Homicides in the post 330 Child Homicides later updated to 332 Child Homicides. The thrust of the counterclaim was that the assumption in 19 Child Homicides that mothers are always benign, and only fathers present a risk to children, is false. In truth, examining a larger database of Serious Case Reviews reveals that mothers are responsible for more child killings than fathers or male partners combined. This clearly establishes the falsity of Women’s Aid’s position. Moreover, it implies that uncritical assumptions that mothers, simply by virtue of their sex, represent no risk to children – or less risk than fathers – is contrary to the Court’s obligation to put the interests of children first.

Perhaps nervous that 19 Child Homicides alone might prove insufficient, Women’s Aid in conjunction with Cafcass produced this piece of joint research in July 2017. The main finding was that domestic abuse was alleged in 62% of Cafcass’s child contact cases. I can hardly claim to be surprised by this figure because it is consistent with the upper bound I derived in this post. Nevertheless, it is preposterous. That no one questions its credibility is a result of decades of propaganda teaching us that domestic abuse really could be that prevalent. Equally disturbing is that all pretence of independence has been abandoned, with the Court advisors, Cafcass, now openly working with a lobby group.

Anyhow, the counterargument has failed to convince – or, at least, it has failed to be translated into action. Those who have been involved in these issues for a long time will not be surprised. It is indeed an exercise in absolute futility. As for me, it was never the expectation of success which was the motivation. The motivation was to establish clearly the forward vista of moral legitimacy.

The guidance to the Family Courts on how to address allegations of domestic abuse, and their impact on child arrangement issues, is provided by “Practice Direction 12J – Child Arrangement & Contact Order: Domestic Violence and Harm”. The version of Practice Direction 12J (hereafter simply ‘12J’) on that link will change shortly. The version applying in 2017 up to 1st October 2017 will be retained here. The new 12J which will replace it on 2nd October 2017 can be found here. For completeness, a review by Mr Justice Cobb, and his early draft of the revised 12J, is retained here.

The rest of this post gives a detailed break-down of 12J, concentrating mostly on the changes.

The public face of this glorious development is exemplified by this Times article.

The detailed changes to 12J

All paragraph numbers relate to the new version which sometimes vary from the old version due to deletions, etc. For clarity, extracts from 12J are presented in blue.

I quote extensively in the commentary from a review by Families Need Fathers Both Parents Matter (FNF-BPM) Cymru. This review was based on Mr Justice Cobb’s early draft of the revised 12J and was communicated to the Head of the Family Division in January 2017.

For those interested in the issue of men accused of DA cross-examining their accuser, and whether it will be permitted to continue, see “Para 28” below.

Paras 2, 3 and throughout: “domestic violence” replaced by “domestic abuse”

Para 3:

Added

“abandonment” refers to 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;

“development” means physical, intellectual, emotional, social or behavioural development;

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

“health” means physical or mental health;

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical; and

“judge” includes salaried and fee-paid judges and lay justices sitting in the Family Court and, where the context permits, can include a justices’ clerk or assistant to a justices’ clerk in the Family Court

Do note the last definition. Where “judge” is used in the Direction, it might mean the assistant to a justice’s clerk. Note that in particular this might apply in (for example) recording in writing an admission of domestic abuse.

Old Para 4:

Removed

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. BUT see para 7 which replaces it.

New Para 4: 

Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or
abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

FNF-BPM Cymru’s comment on the draft was: “Whilst we welcome the literal interpretation of this paragraph we are concerned that this will be interpreted by the Courts only in relation to the impairment of the parenting capacity of the controlling parent. Clearly most applicants are seeking the help of the Court to allow them to maintain a relationship with their children. They and their children are victims of emotional and psychological abuse by being prevented from having that relationship. The unilateral exclusion of them by the controlling parent means that the violence and abuse that they suffer ‘impairs the parenting capacity’ of the excluded parent.”

Para 5:

Added

In particular, 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.

See para 14 for commentary – the issue being concern only for the child and the resident parent.

4th bullet: ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm;

FNF-BMP Cymru’s comments on the draft were: “We are surprised that the provisions of the 4th bullet point apply to the child and ONLY the parent with whom the child lives. In many cases that we see, a controlling parent has secured an advantage in proceedings by taking the children into their care and establishing a false ‘status quo’ as the ‘primary carer’. Apart from the obvious detriment to a child’s best interests, it would appear that in doing so and infringing the right of the child to involvement with the other parent the controlling parent will be further rewarded for their unlawful actions. We do not see how this conforms to the Paramountcy Principle.

Para 5:

The court…..consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise…

This extract is unchanged but raises an issue, namely that claims of DA may be raised by Cafcass (which in practice means by social workers) even when the parties themselves have made no such claim. This opens the way for ideological interference in cases.

Para 7 (new)

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.

Note that the attempt in Justice Cobb’s draft revision of 12J, to over-turn the statutory requirement of Section 1(2A) of the Children Act 1989 – essentially the statement of the first sentence above – was challenged by FNF-BPM Cymru as exceeding the judiciary’s powers. Hence its retention, albeit in different form. This, at least, is a win. Hence, for now, the court continues to presume that the involvement of a father in a child’s life will further the child’s welfare – albeit hedged around with caveats.

However, the second sentence, above, appears to be an invitation to over-rule the presumption in specific cases. The issue is central in view of how commonly deployed is the DA mechanism in distancing one parent, usually the father, from the children.

Para 8: the whole para reads,

In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

The underlined bold parts are new. This is one of the paras which the Head of the Family Division has emphasised is a mandatory requirement – hence the word new word “must” (previously “may” or “shall”)

I highlight this (existing) requirement in the context of DVPP service providers.

Para 10 the whole para reads,

If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate

The parts in bold are new additions. Some additions relate to claims (e.g., in a survey by Rights of Women) that women can continue to be abused within the court premises. That any party can now raise a need for special provisions seems odd – though, of course, it has to be someone with access to the court.

Although originally relating to another para, relevant comments by FNF-BPM Cymru were: “We are also concerned about the way in which (this) is likely to be interpreted by the Courts. We understand that Women’s Aid has consistently asserted that men use the Family Court process to continue their abuse of women and this provision is clearly a direct response to that assertion. We believe that those controlling parents who refuse mediation for example are creating the conditions for ‘the Court process to be used as a means to perpetuate coercion, control or harassment by an abusive parent’. However we are concerned that the wording as currently drafted will simply be used against applicants seeking to secure a relationship with them for their child and redress the injustice they face. “

Paras 11, 12

The word “must” replaces the word “shall”. Reading between the lines, these changes – and elsewhere in the document – seem to be a tacit admission of previous non-compliance.

Para 14 whole para reads,

The court must ascertain at the earliest opportunity, and 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 relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.

New parts in bold. It is highly significant that the risk of harm to the parent has been added here. Let’s not beat about the bush. Everyone knows that the system is abused by widespread DA allegations which are either complete fabrication or so exaggerated as to be unworthy of mention – except that the process imbues them with immense power. This is one of the changes recommended by Justice Cobb, recalling that his review involved consulting only with representatives of the feminist lobby.

Para 15: Changes in bold below,

Where at any hearing an admission of domestic abuse toward another person or the child is made by a party, the admission must be recorded in writing by the judge and set out as a Schedule to the relevant order.

Do recall what “judge” means.

Paras 16 to 20

These relate to whether, and how, ‘findings of facts’ should be conducted to investigate allegations of DA. The public would be surprised at how few such allegations are examined in this manner. One of the paras which the Head of the Family Division has pointedly reminded is mandatory is,

Para 18: Where the court determines that a finding of fact hearing is not necessary, the order must record the reasons for that decision”.

Para 19 has a number of changes relating mainly to abandonment of foreign born spouses abroad. The most significant change is the addition of the words in bold in bullet (f). The following relates to a list of items which the Court may need to consider for a fact-finding hearing,

(f) whether documents are required from third parties such as the police, health services or domestic abuse support services and giving directions for those documents to be obtained;

No bias there, then. The absolute stranglehold that the feminist lobby has on the narrative – and hence public perception – of domestic abuse is, of course, the whole problem.

Relevant FNF-BPM Cymru’s comments on the draft were: “It seems somewhat inconsistent that so many of the sections of the draft require compulsory actions by the Courts yet the question of whether or not to hold a Fact Finding hearing regarding alleged abuse appears to be unclear and left to individual discretion. We believe this is wholly inconsistent and that the paragraph should require a Fact Finding Hearing where allegations of abuse are made unless there is an explicit rejection by the Court of such allegations.

Para 25 has been significantly re-written, as follows – here the bold indicates the particularly significant parts,

Where the court gives directions for a fact-finding hearing, or where disputed 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 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 first of the highlighted parts previously read, “the court should consider whether an interim child arrangements order is in the interests of the child”. The changes are highly significant, in particular the shifting of the burden of proof. The default position is now that the court is directed not to make an interim child arrangements order unless the parent against whom the DA allegation has been made can prove to the court’s satisfaction that such contact is in the child’s best interests. Possession is indeed nine tenths of the law. The resident parent (for that will usually be the parent making the allegation) is under no obligation to demonstrate either that the child is safe in her care, nor that her continued involvement with the child is beneficial to the child. This is simply assumed by the process. And this assumption is in the teeth of clear evidence to the contrary – 332 Child Homicides refers.

Para 28: The following has been deleted,

“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.”

To those new to this nasty business, the background to this in brief is as follows. Allegations of DA in the family courts are so common as to be the norm. Since Civil cases ceased to attract automatic, if means tested, legal aid, making DA allegations has become more common (see here) because it is a route to acquiring legal aid. But only the accuser thus acquires legal aid, not the accused. This seems peculiar to those more familiar with criminal issues, where legal aid is generally granted to permit the accused to mount a defence.

As a result of these developments in the Family Courts, it is common for an accused person – usually the man – to be obliged to mount his own defence without legal representation against an accuser with legal aid funded representation. This has been presented in the press as “violent abusers tormenting their victims again in Court by being allowed to cross-examine them”. The usual lobby groups have campaigned against the accused being allowed to cross-examine his accuser.

How such cases are now to proceed is currently undecided. However, since further legislation on DA has been promised in the Queen’s Speech we can be confident that this issue will be addressed. We can also be confident that Parliament will rush to the aid of distressed women, not men. So the general direction of the outcome is assured. Is it hyperbole to suggest we are edging ever closer to Show Trials? I think not.

Para 30: The following has been deleted, but see also the new para 33,

“The court should also consider whether it would be assisted by any social work, psychiatric, psychological or other assessment of any party or the child (such as an expert risk assessment), and if so (subject to any necessary consent) make directions for such assessment to be undertaken and for the filing of any consequent report.”

Para 32: The part in bold has been added,

The court should take steps to obtain (or direct the parties or an Officer of Cafcass or a Welsh family proceedings officer to obtain) information about the facilities available locally (to include local domestic abuse support services) to assist any party or the child in cases where domestic abuse has occurred.

No bias there then. See next para.

Para 33: This has been completely re-written – DVPP service providers to note,

Following any determination of the nature and extent of domestic abuse, whether or not following a fact-finding hearing, the court must, if considering any form of contact or involvement of the parent in the child’s life, consider-

(a) 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 (subject to any necessary consent) make directions for such assessment to be undertaken and for the filing of any consequent report. Any such report should address the factors set out in paragraphs 36 and 37 below, unless the court directs otherwise;

(b) whether any party should seek advice, treatment or other intervention as a precondition to any child arrangements order being made, and may (with the consent of that party) give directions for such attendance.

FNF-BPM Cymru’s comments on draft: “We are concerned about the likely impact of section (a) of this paragraph. The resources available to men who are victims of domestic violence and abuse are so weak in comparison to the services available for women that the wording as currently drafted will result in a report being commissioned from a ‘Women’s Aid’ agency where objectivity and balance may be even more difficult to ensure. Much work will need to be done in terms of increasing resources to specialist domestic abuse services for men if this provision is to be equitable.”

Para 36: The detailed wording has changed, but both versions suffer from the same bias. FNF-BPM Cymru’s comments on draft: “This is poorly worded and falls once more into the inconsistency of approach towards each parent when dealing with DV allegations. It seems unreasonable that the protection extends only to the parent with whom the child lives rather than to both parents. This has the danger of pre-judging cases on the basis of ‘possession is 9/10th of the law’.

Para 37: The start of this para includes the addition shown in bold,

In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established,

FNF-BMU Cymru’s comment: “We are particularly concerned by the use of the phrase – ‘or where domestic abuse is otherwise established’. This phrase is repeated elsewhere. We are concerned that this will mean that so-called ‘expert assessments’ from Women’s Aid organisations will be used to interfere with the right of the child under Article 9 of the UNCRC, the right of the father under Article 6 of the ECHR and will be contrary to s11 of the Children and Families Act 2014.”

It is noted that the phrase “the applicant parent” has been replaced simply by “the parent” in bullet (c), which now reads: “whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent”. This is to be welcomed since the resident parent may also be motivated by self-interest rather than the interests of the child. In particular, alienation of the non-resident parent is a form of coercive control, and hence domestic abuse, which goes unrecognised by the process.

A generic problem with the Direction is that, at many points, it contains the presumption that the resident parent is the accuser of DA and the non-resident parent the perpetrator. But the reverse may be the case, and alienation is the principal – and common – example of this. FNF-BPM Cymru noted this as an aspect of “grave concern”.”

Para 38: The following has been added,

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.

The issue is the independence of expert risk assessment produced from a gender perspective.

Para 40: I close with FNF-BPM Cymru’s final observation,

We recognise that this section is likely to significantly undermine the UNCRC Article 9 right of the child. Almost by definition if a case is open in the Family Court there is conflict between the parties which either or both may regard as an emotional abuse. In these circumstances we anticipate that contact will be hard to justify if a test of ‘risk of harm’ will be applied as the controlling parent can simply continue to thwart contact and create the ‘risk of harm’.