How realistic is some of the proposed guidance on domestic abuse and children matters?

Family Law|January 23rd 2017

I have been following family law-related news stories for a long time now, both as a family lawyer and as a writer on family law matters. During that time a particularly depressing type of story has recurred on too many occasions. It is the story of how one party to a relationship breakdown and/or their children have lost their lives at the hands of the other party. It sometimes seems that hardly a month passes without headlines reporting another tragedy in which one or more family members have been killed by another member of that family.

So depressing was this familiar story that when domestic abuse charity Women’s Aid asked me a while back if I would support a campaign they were running aimed at doing something about it I gladly agreed. The campaign suggested that in a number of cases in which a death had occurred the family courts had granted the perpetrator contact with the children, and thereby also with the other parent, despite being aware that the perpetrator had subjected the other parent to abuse.

One fruit of that campaign appeared on Friday when Mr Justice Cobb published his report to the President of the Family Division reviewing Practice Direction 12J. Practice Direction 12J provides courts with guidance as to what they should do in any case concerning arrangements for a child “in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.” The review was in part prompted by the Women’s Aid campaign.

The campaign highlighted several issues with the approach of the courts in these cases that it considered could be changed to help protect potential victims of abusers. I’m going to concentrate here on two of those.

The first issue, and one of the main concerns of Women’s Aid, relates to the so-called ‘shared parenting presumption’. This was introduced in 2014 to provide that when considering arrangements for a child the court should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare. Women’s Aid were concerned that the presumption operates to require ‘contact at all costs’ in all cases, without a proper evaluation of the risk of harm from domestic abuse. To meet this concern, Mr Justice Cobb proposes to revise the Practice Direction to provide that the presumption should be displaced 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.

The current version of the Practice Direction states:

“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.”

Will that change of emphasis make any real difference? I have to say that I am sceptical. The court already denies parents contact where it considers that to allow it would put the child or the other parent at risk. The shared parenting presumption is already being displaced. And if we do suddenly see a lot more cases in which parents are denied contact, then we will surely also see a similar increase in the number of decisions being appealed.

The other issue raised is that the courts do not effectively or consistently apply the existing guidance. Mr Justice Cobb’s primary answer to this (as suggested by Women’s Aid) is better training for judges and magistrates. OK, but isn’t part of the problem the huge burden of law, rules, practice directions and guidance (not to mention case law) with which judges and magistrates have to comply? Remember, many of the decisions are made by lay magistrates, who are not lawyers – with the greatest respect, to expect them to understand and apply all of that consistently across the country is surely a little unrealistic, no matter how good the training. And frequent changes to the guidance (it is less than three years since the Practice Direction was substantially revised) do not help.

As I indicated at the beginning of this post I am very much in favour of anything that might reduce the incidence of those depressing headlines. I therefore hope that these changes to the Practice Direction will, if implemented, have that effect. However, the problem faced by the court in balancing a child’s right to have a relationship with both parents on the one hand and the safety of the child and parent on the other is not essentially going to be changed. The court will always be faced with difficult decisions, no matter what the guidance says. We should not therefore expect too much of these changes.

You can read Mr Justice Cobb’s report here.

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  1. Jo Archer says:

    And that’s before anyone considers the risk of self-harm to parents who are forced to continue an abusive relationship, whether or not there is a risk of violence against them or their children! Who has a window on that?

  2. Andrew says:

    And there I was hoping you would focus on such matters as it being impractical to provide d.v. complainants in most courts with somewhere private to wait; and you cannot make the alleged abuser stay in the building after the hearing (think false imprisonment) or come in by a different door; and if there is only one drinks machine they can both use it; and the door of the gents’ loo is usually next to the door of the ladies’ loo and they may meet in the hall . . . etc., etc., until Women’s Aid have their way and exclude him from the hearing altogether.

  3. How realistic is some of the proposed guidance on domestic abuse and children matters? - Marilyn Stowe Blog - Talking Drum says:

    […] Sourced through from: […]

  4. bob greig says:

    Interesting article. Thank you.

    I wanted to raise a real-life case that I have been helping with. It concerns a mum who has been (for at least five years) subjected to domestic violence from her ex partner. Her dilemma is if she stops all contact between her ex partner and their child (There are many reports that would give the Court the evidence they would look for to make this decision) she would then fear for her life and the life of their child. Keeping contact going seems (to her) to be the best solution out of an awful situation.

    The point I am making is that these cases are never straightforward and organising “directions” around how best to deal with such cases must be very difficult.

  5. Yuri says:

    Two articles that shed much needed light on the current family law development .

    The writer is American lawyer Robert Franklin

    [*Edited by the moderators: please do not post lengthy extracts from articles on other sites. See our moderation policy here: ]

  6. Elinor Kershaw says:

    It is great to hear a professional raising the point that the direction to judges to consider the safety and welfare of the child and resident parent is already there. Our real concern at GenderFreeDV is that by emphasising the domestic abuse angle (especially around alleged as opposed to known or otherwise recorded) is that it becomes harder for judges to determine what is in the child’s best interests rather the parent’s.

    It makes it more complicated to balance the genuine welfare and longterm emotional wellbeing and development of the child against the immediate and emotionally raw perspective of parents in a high-conflict separation where both may feel they have been abused – but is it going to continue or to impact on the child post-separation? How much to we listen to the child? How aware are we of children being manipulated by the parents?

    It also makes it easier for a parent to use the court to deny access by claiming abuse, or that abuse is more severe. Whilst we we would never want a genuine victim to be disbelieved, this emphasis provides greater opportunity for exploitation of the system (of a kind which was already happening) to be a mechanism of abuse by a clever coercive and controlling abuser who can fool the court.

    Whilst we have an ongoing investigation from the Ministry of Justice into fraudulent Legal Aid claims using domestic abuse, we should be very aware of how this system and the professionals in it can become tools of abuse. This is not a gendered issue (although we have a cultural bias towards women as primary parent after separation) and also affects same-sex parents adversely.

  7. pg says:

    I’m involved in a case with my sister and what I have seen has shocked me, the court’s default position seems to be contact with the abuser at all costs.The abuser has made it clear repeatedly that he seems nothing wrong with his abuse and has continued during his fortnightly contact, yet the court seems intent on disregarding any evidence which is inconvenient. The effect of this has been to damage the health of all of his victims especially as the overwhelming power of the state is reflection of the emotional response to the power of the abuser over the victim. IT’S SHAMEFUL

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