On 2 October 2017 a profound change was made to the Children Act 1989 with the incorporation of Practice Direction 12J. This came about as a result of lobbying by a number of organisations concerned about domestic abuse and its impact on children. A pivotal report was ‘Twenty-nine child homicides:- Lessons still to be learnt on domestic violence and child protection’.
The new law ensures that where ‘domestic abuse’ is alleged, and it is defined very broadly to include ‘coercive and controlling behaviour’, the courts need to consider the nature of any allegation and its impact on any child arrangement order it makes.
Firstly, the court will need to establish the truth of any allegation and, if necessary, list for a fact finding hearing (the court will wish to avoid this in most cases, due to the court time and expense of such hearings). Once the court has confirmation that domestic abuse is either proven or admitted, then any child arrangements, ie contact orders, will need to protect not only the safety and wellbeing of the child but also the parent with whom the child lives, and not expose either of them to the risk of further harm.
It is presumed that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. Now, under this practice direction, the court must consider whether this presumption applies, having regard to any allegations or admission of harm by domestic abuse.
The link for this Practice Direction in full is revised Practice Direction 12J. It is, as yet, unclear as to how it will impact Child Arrangement Proceedings generally and if it will serve to protect children from harm as it is intended to do.
As a family practitioner of many years’ experience, I remain concerned it may be used by some parents to delay the reintroduction of a non-abusive parent and thus harm children in another way by preventing them having a full and loving relationship with both parents. It will be, as always, a difficult balancing act for the judiciary to perform.
Please contact Gemma Gillespie our family solicitor for further advice on 01892 515022.
