A change in Practice Direction – The court's approach to issues of domestic abuse in children act proceedings

A revision to Practice Direction 12J, of the Family Procedure Rules 2010, came into force on 2 October 2017. The Practice Direction applies to any family proceedings in the Family Court and the High Court and specifically applies to any application made for a Child Arrangements Order or where there is a question about where a child should live, or about contact between a child and a parent or other family member and the Court considers that an order should be made.

Definition of domestic abuse

The revised direction contains a number of amendments. The most significant of which is that there is now a wider definition of domestic abuse and no longer a focus solely on domestic violence. The definition is expanded to include abuse in all its many shapes and forms. The definition now reads as (para 3):-

“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;

The practice directions reflects the change in mood towards domestic abuse and the survivors of such abuse, as well as how the effects of such allegations impact on children.

Unfortunately the family courts have long trailed behind the criminal courts in the way that survivors of domestic abuse are treated during the court process. Additional measures of protection have been introduced for survivors of domestic abuse. An un-represented alleged perpetrator should not cross-examine the alleged survivor of domestic abuse. There are also practical arrangements to protect the alleged victim whilst at Court.

Changing perceptions

Thankfully the courts seem to be adapting and learning how to deal with the horrific affects domestic abuse causes. Recent changes demonstrate that the court is taking domestic abuse seriously and wants to work to make the court process less daunting for those who have survived abuse. The change from domestic violence to domestic abuse is not only a change in lexis but rather symbolises the change in the court’s and governments perception of domestic abuse and the survivors, and how many forms of abuse impact on children’s lives.

The direction sets out how the court will procedurally deal with cases where there are allegations of domestic abuse and a risk of harm.

The Court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or CAFCASS and if so must:-

1. Identify the factual and welfare issues involved;
2. 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;
3. Give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
4. Ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm and;
5. Ensure that any interim child arrangements order is only made having followed the guidance set out above.

The guidance is not a complete shakeup of the system, as much of a reinforcement and focus on the most appropriate way to deal with allegations of abuse. This allows for more consistency in the way in which courts deal with allegations of domestic abuse and ensures that the effects of abuse on a child will be considered at the earliest opportunity.