President issues new PD12J - Child Arrangements and Contact Orders: Domestic Abuse and Harm
The President of the Family Division has issued a circular dealing with domestic abuse and containing a new PD12J, which comes into force on 2 October 2017
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In the summer of 2016 I asked Mr Justice Cobb, who had chaired the Working Group which drew up the Child Arrangements Programme in 2014, to review Practice Direction 12J, to examine whether further amendment was needed in the light of the recommendations made by the All Party Parliamentary Group on Domestic Violence in its briefing dated 29 April 2016 and by Women’s Aid Federation of England (WAFE) in its ‘Nineteen Child Homicides’ report published in February 2016, and to produce recommendations. His Report, accompanied by a draft amended PD12J, was dated 18 November 2016. I published it in January 2017:  Fam Law 225. At the same time, in my 16th View from the Presidents Chambers,  Fam Law 151, 160-161, I indicated that, with one important exception, I accepted all his recommendations.
As I had hoped, the publication of the draft amended PD12J generated comments and helpful suggestions, including from Families Need Fathers and, following a presentation they gave at the President’s Conference in May 2017, from Southall Black Sisters.
Although final responsibility for any amendment to PD12J rests with me as President of the Family Division, I thought it appropriate to consult both the Family Justice Council and the Family Procedure Rule Committee. The draft amended PD12J has accordingly been considered by the Family Justice Council and, at a number of its meetings when various iterations of the draft were considered, by the Family Procedure Rule Committee, most recently on 10 July 2017. Following this, a final revised draft amended PD12 was prepared by officials, for whose assistance I am grateful, incorporating the various amendments agreed by me and by the Committee and helpfully identifying a few additional issues (none of major significance) for my consideration. I should add that, throughout this process, I have benefited greatly from Mr Justice Cobb’s continuing advice, for which I am most grateful.
On 7 September 2017 I made the new PD12J, annexed to this Circular. It has since been approved by the Minister of State and will come into force on 2 October 2017. It applies (see paras 1, 3) to all judges, including lay justices, whether sitting in the Family Court or in the High Court.
PD12J will require further adjustment if and when the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators is enacted. We cannot await that. Hence my decision to proceed without further delay.
The new PD12J contains numerous amendments, many of important substance. Here, I highlight only two:
There is (see para 3) a new and much expanded definition of what is now referred to as 'domestic abuse', rather than, as before, 'domestic violence'.
There are mandatory requirements (see paras 8, 14, 15, 18, 22, 29) for inclusion of certain specified matters in the court’s order. I appreciate the additional burden that this may impose on judges and court staff, but there is good reason for making these requirements mandatory and theymustbe complied with.
There have been recurring complaints in Parliament and elsewhere of inadequate compliance with PD12J. I am unable to assess to what extent, if at all, such complaints are justified. However,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.
The Judicial College plays a vitally important role in providing appropriate training on the new PD12J to all family judges. As I have said previously, 'I would expect the judiciary to receive high quality and up-to-date training in domestic violence and it is the responsibility of the Judicial College to deliver this.' The Judicial College has risen to the challenge, as many judges will already have experienced, and I am confident that it will continue to do so.
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. PD12J plays a vital part.
James Munby, President of the Family Division 14 September 2017
Click here to view the new Practice Direction 12J (Child Arrangements and Contact Orders: Domestic Abuse and Harm)