The President of the Family Division, Sir James Munby, has issued a revised Family Procedure Rules Practice Direction 12J which will come into force on 2nd October 2017 and is to be applied in all courts considering an application for a Child Arrangements Order when domestic abuse is raised as an issue.
The revised PD12J contains a new, expanded definition of domestic abuse:
“domestic abuse” includes 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;
“abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;
“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;
“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;
“health” means physical or mental health;
“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.
The President also issued an accompanying circular, explaining the reasons for the revisions and reiterating that it is essential that all levels of the judiciary comply with the Practice Direction at all times.
PD12J now requires certain matters to be recorded on the face of the order, or in an accompanying schedule. This is to improve transparency in the decision-making process and to ensure that the Court is aware at every stage of the proceedings what the issues are. This should hopefully allow for a more speedy resolution of those issues, and the importance of judicial continuity is again reinforced. The matters to be recorded are the fact that any allegations of domestic abuse have been made; any admissions; any findings of the Court; and any reasons for making a Child Arrangements Order in the event that findings of domestic abuse have been made.
The Court must not make any interim Child Arrangements Orders without first having received the Cafcass safeguarding checks and, where domestic abuse is raised as an issue, must not make an order:
unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm (bearing in mind the impact which domestic abuse against a parent can have on the emotional well-being of the child, the safety of the other parent and the need to protect against domestic abuse including controlling or coercive behaviour).
However, the presumption that the involvement of each parent in the child’s life is reiterated, with some caveat:
In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm.
The Court must consider in every case whether a separate fact-finding hearing is necessary. The same considerations apply to the need for a fact-finding hearing, including proportionality, as before.