In January this year High Court Family Judge Mr Justice Cobb set out his proposals to change the way the family court deals with allegations of domestic abuse in children cases.
On Monday 2nd October new guidance came into force which should ensure that judges consider the impact of domestic abuse when deciding whether to make a Child Arrangements Order (formerly a “contact order”).
The guidance is contained in an amended “Practice Direction” to the Family Procedure Rules. Practice Directions expand on the rules and give practical advice on how the rules should be applied.
In his foreword to the guidance, the President of the Family Division of the High Court James Munby set out the two major changes introduced in the Practice Direction.
The first is that the term “domestic violence” has been replaced with “domestic abuse” and the definition itself has been expanded. The term “domestic abuse” is now defined as:
“… any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.”
It then goes on to give definitions of coercive and controlling behaviour and abandonment.
The second important change is that it is now spelt out in the rules that consideration has to be given to whether domestic abuse is raised as an issue “at every stage” in the court proceedings, and particularly the first court appointment (called the First Hearing Dispute Resolution Appointment). It does not have to be raised by the parties themselves but could be by CAFCASS “or otherwise”, which presumably includes judges themselves.
In cases involving allegations of domestic abuse 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.”
Whilst this does not overtly reverse the presumption that it is in the child’s best interest for a parent to be involved in a child’s life, the onus is on the court to assess the risk of contact on both the child and the other parent where domestic abuse is alleged.
In the Queen’s Speech in June 2017 it was announced that legislation would be introduced to prevent victims of domestic abuse being cross examined by an abusive ex-partner in court. As this is not yet in force the Practice Direction will have be amended again at a future date.
The new Practice Direction 12J can be read in full here.
Whilst the majority of judges already take domestic abuse issues very seriously, this is not always the case. For lawyers the guidance means that if a Child Arrangements Order is made and the judge has not applied the new rules, an order could be subject to an appeal.