How courts deal with domestic abuse cases: Practice Direction 12J
I have written here previously about Practice Direction 12J (‘PD12J’). For the benefit of readers who don’t know what PD12J says, I will briefly recap.
PD12J (which you can find here) sets out what the court is required to do in children (i.e. child arrangements) cases in which it is alleged or admitted, or there is another reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party, or that there is a risk of such abuse. The general principle is set out in paragraph 4 of PD12J:
“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.”
The court must, at all stages of the proceedings, consider whether domestic abuse is raised as an issue and if so must take certain steps, in particular, to consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms. The court must ascertain the truth of any allegations of abuse, usually at a fact-finding hearing. The court must also ensure that, where appropriate, special arrangements are made to protect the party or child attending any hearing, such as witness screens and separate waiting areas.
Obviously, it is essential that family courts follow the guidance contained in PD12J unless there is a very good reason why they should not (in which case that reason should be clearly explained). However, a recent survey raises serious concerns as to how well the guidance is being followed.
The survey was conducted in the South-East of England between August and October 2019 by the University of Sussex working in partnership with the Quality Circle, Kent and Sussex FLBA, and East and West Sussex Resolution. It comprised an online questionnaire, administered to practising lawyers, exploring their experience of domestic abuse and/or coercive control (‘DA/CC’) cases related to the adoption of PD12J across family court tiers, special measure applications, evidence-gathering in disputed allegations, and court delays.
88 respondents began the survey and 66 respondents completed all responses. All respondents were lawyers working in private law children cases in Kent and Sussex. DA/CC issues were present in at least half of their cases.
Key findings of the survey included:
Respondents with the most DA/CC experience thought that half or more of their cases were not allocated to the appropriate court tier. Most were dealt with at Tier 1 (family magistrates), a quarter at Tier 2 (district judges), and none or almost none at Tier 3 (Circuit Judges). Adherence to PD12J was lowest at Tier 1, better at Tier 2, and strongest at Tier 3.
Special arrangements to protect parties/children were underutilized. Cross-examination of victims by the perpetrator or their counsel, in particular, was seen to have had substantial adverse effects on victims’ sense of safety and could be further traumatising.
Some courts were perceived to have antipathy to a fact-finding by the court.
Concerns were expressed about magistrates not always having received sufficient training to understand the nebulous and contested nature of allegations, the insidious and hidden nature of coercive control, and the impact of living with DA/CC.
Just one-quarter or fewer of interim contact applications by the alleged perpetrator were refused, with the court seeming to apply a presumption in favour of direct contact, even where this was distressing or frightening to the child, who might be exposed to an alleged perpetrator’s aggression and threats.
Lastly, the majority of respondents reported frequent court delays.
The research report concludes that: “Pockets of good practice clearly exist across court tiers but further work is needed to apply PD12J guidance consistently in court practices, particularly at Tier 1, and ensure that processes and outcomes are beneficial for participants.” A number of recommendations are made to address the issues raised.