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Are the Courts following Practice Direction 12J correctly?

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Posted by Wolferstans Admin on 24th June 2019

Are the Courts following Practice Direction 12J correctly in children cases where there have been allegations of domestic abuse?

A recent BBC Victoria Derbyshire programme has alleged that dozens of abusive ex-partners have been granted unsupervised contact with their child and at least four children have been killed by a parent in the past five years after a family court have ordered contact with a parent where there has previously been abuse in the relationship. 120 MPs have now written to the Government asking for an enquiry as to how family courts in England and Wales treat victims of domestic violence. So, what is it that the Court have to consider when making any orders in respect of contact when allegations have been made against a parent and there is a history of domestic abuse?

When parents separate and cannot reach an agreement regarding arrangements for their child(ren) a family court judge can make a legally binding decision known as a Child Arrangements Order which sets out who the child(ren) shall live with and spend time with.

In cases that involve domestic abuse the Courts must consider the welfare checklist which is set out in section 1(3) of The Children Act 1989 and Practice Direction 12J. The purpose of the Practice Direction 12J is to set out what the Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.

The general principle is that domestic abuse is harmful to children, and puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.

The Courts must identify the factual and welfare issues and consider the nature of the allegation and how relevant they are when determining arrangements for the children to ensure the child’s wellbeing is protected and that an order does not expose the child to further harm.

In light of the recent evidence, MPs are now calling for reform to these laws to ensure the Courts adopt the correct approach and adopt the practice direction correctly to ensure the safety of children and any parents who may be at risk. The Children and Family Court Advisory Service (CAFCASS) said in a statement ‘one of our most challenging professional tasks is to assess what level of parental involvement is safe and, in the child’s, best interests in cases where there has been domestic abuse’

The Ministry of Justice said, “The welfare of the child is the paramount consideration of the family courts when making decisions about upbringing…and would continue to explore how the justice system deals with domestic abuse”.

At Wolferstans we understand how stressful and emotional it can be to make arrangements for children and we are sympathetic to our clients who have been subject to domestic abuse by their partners/ex-partners. We have a specialist family team which regularly act for clients who are involved in abusive relationships and will be able to assist you with any queries. If you would like some advice regarding the contents of this article, please call us on 01752 292288.