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Sarah Miller

Posted 27 September 2017
by Sarah Miller

Domestic Abuse in Family Proceedings Relating to Children

On 14th September 2017 the President of the Family Division, Sir James Munby announced welcome amendments to Practice Direction 12J of the Family Procedure Rules 2010 which comes into force on 2nd October 2017.

Practice Direction 12J sets out what the Family Court is required to do in any case in which it is alleged or admitted, or there is reason to believe, that a child or party has experienced domestic abuse perpetrated by another party, or that there is a risk of such abuse. The new Practice Direction contains a number of significant amendments. Among the key changes are the following:

Defining Domestic Abuse

The Practice Direction now refers to “domestic abuse” rather than “domestic violence”. The term “domestic abuse” has been given a much wider definition than previously and 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 and honour-based violence. Each of the individual terms are defined within the new Practice Direction.

Parental Involvement

Where there are proceedings relating to the making of a possible Child Arrangement Order the Court presumes that the involvement of a parent in a child’s life would further the child’s welfare unless there is evidence to the contrary. The Court must now in every case carefully consider whether that presumption applies having regard to any allegation or admission of harm of domestic abuse to the child or the parent or if there is any evidence indicating that such harm or risk of harm may take place.

Risk of Harm

The Court must now be satisfied that any contact ordered with a perpetrator parent does not expose the child and/or other parent to the risk of harm and is in the child’s best interests.

Waiting Arrangements

A report by Women’s Aid revealed that 55% of women respondents to their 2015 survey attended the Family Court with no special measures, with 39% having been physically abused by their former partner in Court. There are now specific procedures in place for the waiting arrangements at court before the hearing and for entering and exiting the court building.

Safety and Risk Assessments

The Practice Direction now provides that following any determination of the nature and extent of domestic abuse the court must, if it is considering any form of contact or involvement of the parent in the child’s life consider:

–       Whether it would be assisted by an expert assessment (including expert risk assessment) of any party or the child and, if so, make directions for such assessment to be undertaken

–       Whether any party should seek advice, treatment or other intervention as a precondition to any child arrangements order being made

The President of the Family Division stated in the circular issued on 14th September that “Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.” He also noted that further amendments will be required if and when the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators comes into force.

More information can be found here.

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About the author

Sarah Miller

Sarah Miller

Associate member of CILEx

Associate member of CILEx within the family team.