From the 2 October 2017, a key Practice Direction that applies to all family proceedings in the Family Court and the High Court has been significantly reviewed and amended. The changes to Practice Direction 12J will have a considerable impact on family proceedings, particularly in cases involving children.
Within this Practice Direction, the definition of ‘domestic abuse’ has been substantially amended and defined, giving the court and legal advisors more guidance on how proceedings should be conducted. The amendments were brought about as concerns were being raised by various agencies including Women’s Aid, that domestic abuse and its impact was still not being taken sufficiently seriously.
The main changes are:
- The Children and Families Act 2014 states that the ‘involvement of that parent in the life of the child concerned will further the child’s welfare‘ however this presumption is displaced if, under the Practice Direction, any allegation or admission of harm by domestic abuse to the child or parent indicates harm or a risk of harm. This amendment now includes any harm or risk of harm suffered by the parent as well as the child.
- Courts ‘must’ adjourn the first hearing if standard safeguarding checks have not been completed. The courts are now actively discouraged from making any interim contact orders without first having sight of the safeguarding checks.
- Interim contact orders should not be made unless the court is satisfied that it would be in the interests of the child to do so and that it would not place the child or the parent at unmanageable risk of harm. The Practice Direction also specifically highlights the need to consider the impact of the domestic violence of the parent and the emotional well-being of the child. For the first time, this Practice Direction raises a presumption against interim contact in cases involving domestic abuse and thus places the onus on the parent who is the subject of the allegations to satisfy the court that such contact will not expose the child and/or the parent to an unmanageable risk of harm.
- If a risk assessment concludes that a parent poses a risk of harm to the child or other parent, contact through a supported contact centre or supervised by a parent or relative, is not appropriate.
The above outline very briefly the main changes in the court’s approach to cases involving domestic violence. Much of the Practice Direction focuses on not just the impact of the alleged abuse upon the child but now also incorporates the impact upon the parent with care. It is recognising that any exposure to domestic abuse is very harmful to children and the courts have been required to assess that harm and whether this harm would be greater to the child and parent, than not seeing the non-resident parent.
It is hoped that with these amendments to the Practice Direction, domestic abuse and its place within family proceedings will be taken more seriously. This review of the Practice Direction has placed a spotlight on a very difficult and sensitive area of family law. However, the flip side to this is the concern of many non-resident parents and their advisors that these changes will lead to spurious accusations of domestic violence that will ultimately result in no contact, at least for a very long time.
There may be a general feeling of unease for non-resident parents who are faced with untrue allegations of domestic violence and hostile parents. These parents may feel that the amendments to the Practice Direction impose even greater obstacles for them to overcome in a system which they inherently feel already stands in favour of the parent with care.
If you would like to know more about the issues covered in this article, Hunter & Uro offer a free initial consultation. Our specialist family solicitors can help guide you through your options. Contact us on 0207 177 9777 or 01234 889777 for more information.