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Family Law

The leading authority on all aspects of family law

20 JAN 2017

PSL Essential Update – View from the President’s Chambers and Review of Practice Direction 12J FPR 2010

PSL Essential Update – View from the President’s Chambers and Review of Practice Direction 12J FPR 2010

In a  nutshell:

The President of the Family Division has produced his 16th View from the President’s Chambers entitled ‘Children and vulnerable witnesses – where are we?’,  released in conjunction with a report from The Honourable Mr Justice Cobb reviewing and proposing a draft revised Practice Direction 12J FPR 2010 – Child Arrangement and Contact Orders: Domestic Violence and Harm.

When:

19 January 2017 (released for publication on 20 January 2017).

This topic stretches back to June 2014 when the President’s 12th View announced the Children and Vulnerable Witnesses Working Group (CVWWG); one of their key aims being the need to address vulnerable people giving evidence in family proceedings. This issue has been ongoing in the years since, with many calls from the President for urgent ministerial attention to attend to the imbalance in procedure between the criminal courts and the Family Court.

The report from Mr Justice Cobb was delivered to the President in November 2016 and has been published in conjunction with the latest View.

Key  points:

The View

The View focuses on the evolution of attempts made to change the current position vulnerable witnesses and children can find themselves in when faced with giving evidence in the family court. In short, it reiterates the fact that primary legislation is required. The implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) resulted in vulnerable people with no legal representation facing scenarios where alleged perpetrators of abuse could be left with no option but to cross examine their alleged victims and vice versa. The President tried to tackle this issue by interpreting LASPO 2012, s 31G(6) as enabling a judge to direct that appropriate representation should be provided by and at the expense of HMCTS, however the Court of Appeal decision in Re K and H (Children) [2015] EWCA Civ 543, [2016] 1 FLR 754 held this approach was wrong.

In February 2015 the final report of the CVWWG was published and recommended new rules and practice directions which, it was hoped, would be in place by the end of 2015, however this is still not the case.

The President welcomed a report published in January 2016 by Women’s Aid (Nineteen Child Homicides), calling on the government to review the treatment and experiences of victims of domestic abuse in family law courts. The report focused on the treatment and experiences of victims of domestic abuse in family courts.

In April 2016 the All-Party Parliamentary Group (APPG) on Domestic Violence published a Parliamentary Briefing called Domestic Abuse, Child Contact and the Family Courts. It drew attention to the importance of Practice Direction 12J, Child Arrangements and Contact Order: Domestic Violence and Harm and made recommendations that:

  1. The Ministry of Justice, and the President of the Family Division must clarify that there must not be an assumption of shared parenting in child contact cases where domestic abuse is a feature, and child contact should be decided based on an informed judgement of what's in the best interests of child.

  2. The Government must put an immediate end to survivors of domestic abuse being cross-examined by, or having to cross-examine, their abusers in the family court.

  3. The Ministry of Justice must urgently set up an independent, national oversight group overseeing and advising upon the implementation of PD12J – Child Arrangements and Contact Order: Domestic Violence and Harm.

  4. The Ministry of Justice and President of Family Division must ensure that special measures, such as dedicated safe waiting rooms for vulnerable witnesses and separate entrance and exit times, are available throughout family court proceedings and any subsequent child contact, to ensure the safety and well-being of both vulnerable women and children.

  5. The Ministry of Justice, President of the Family Division and Cafcass must ensure Judges and court staff in the family court, Cafcass officers and other frontline staff in other related agencies receive specialist face to face training on all aspects of domestic violence, particularly coercive and controlling behaviour, the frequency and nature of post-separation abuse, and the impact of domestic abuse on children, on parenting and on the mother-child relationship.

  6. The Ministry of Justice, President of the Family Division and Cafcass must ensure expert safety and risk assessments in child contact cases are carried out where there is an abusive parent involved and they must be conducted by a dedicated domestic abuse practitioner who works for an agency accredited to nationally recognised standards for responding to domestic abuse.

  7. The President of the Family Division must ensure family court judges never order child contact in support contact centres where a risk assessment has found that the abusive parent still poses a risk to the child or non-abusive parent.

The President responded to each of the recommendations but it was points 1 and 7 which prompted him to ask Mr Justice Cobb to review PD12J to examine whether further amendment was needed in the light of the recommendations.

On 15 September 2016 the issues raised by Women’s Aid and by the APPG were debated in the House of Commons. The View outlines the communications the President has had with, in particular, the Parliamentary Under-Secretary of State for Justice, Dr Phillip Lee about moving matters forward and the parliamentary debates which have followed. Essentially, the Government has acknowledged the need to change the law, and the urgency with which this change should take place. It is understood they are moving forward and the President awaits sight of draft clauses for a Bill.

The President’s ambition is that everything necessary is in place by the end of 2017.

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Cobb J’s Report

The President urges practitioners and all involved in the family justice system to read Cobb J’s report in full. The recommendations fall into two parts. One relates to the proposed amendments to PD12J, the other deals with a number of the other issues raised by Women’s Aid and the APPG.

Some key revisions are:

  1. Paragraph 4 has been re-worked to go some way to addressing one of the main concerns of Women’s Aid and the APPG that the presumption contained in s 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.
  2. Paragraph 6 has been amended to include a requirement for the court to ensure that the court process is not being used as a means in itself to perpetuate coercion, control or harassment by an abusive parent. Family court judges need to be alert to, and deal robustly with, the respondent who is uncooperative or obstructive in the litigation and/or in relation to the child arrangements themselves. Furthermore, family court judges should be sure that they understand the new offence of coercion (“controlling or coercive behaviour in an intimate or family relationship”) introduced in the Serious Crime Act 2015.
  3. Paragraph 10 includes a proposal for the courts to consider more carefully the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building; Women’s Aid reported that 55% of women respondents to their survey in 2015 who had been to the family court had no access to any special measures. 39% were physically abused by their former partner in the family court. The APPG report speaks of women commonly being followed, stalked, harassed and further traumatised after leaving court.
  4. Paragraph 28 has been amended to afford further protection for the alleged victim of abuse from cross-examination by an alleged unrepresented perpetrator. This amendment actually prevents an unrepresented alleged abuser or alleged victim from cross-examining or directly questioning each other.
  5. Paragraph 33 recommends that in a case where domestic abuse has been proved, a court shall obtain a safety and risk assessment conducted by a specialist domestic abuse practitioner working for an appropriately accredited agency.
  6. Generally throughout, greater consistency and clarity of language has been introduced, by adopting a common test of ‘protection from risk of harm’; ‘harm’ itself is now specifically defined within the Practice Direction, adopting the language of s 31(9) of the Children Act 1989.

The President has given his thoughts on the proposed amendments.

He feels it is essential that judges at all tiers of the Family Court are familiar with the Practice Direction, and apply it as they are obliged to do, and conscientiously. He also supports a focus on judicial training and invites the Judicial College to ensure that the content of its private family law induction and continuation courses highlight the risks which are being addressed by the Practice Direction and reinforce to the judiciary the importance of applying PD12J conscientiously.

The President is in support of all recommendations save the final amendment proposed to PD12J para 28 as he questions whether this could lawfully be achieved by a Practice Direction. The Lord Chancellor will be invited to approve the amendments so that the revised PD12J can be issued as soon as possible after the meeting of the Family Procedure Rule Committee on 6 February 2017.

To  do:

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