Contact proceedings – the impact of domestic violence
Granting unsupervised contact to father’s which are known to be very violent can often have devastating consequences and in grave cases, lead to the death of a child.
A report prepared by Women’s Aid in 2004 made a number of recommendations in relation to this issue, some of which are now contained within PD 12J 2008.
Since the implementation of the Act, several issues have arisen such as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which has resulted in a significant rise of litigants in person in private law children proceedings. This has raised the question of whether a perpetrator of domestic violence who is acting as a litigant in person, should be able to directly cross-examine a victim in court. In January 2016, Women’s Aid published the second report about infant murder in court agreed, or ordered, contact. They researched serious case reviews of deaths of children during contact with a father known to the court to be, or have been, violent to the mother.
Practice Direction 12J had been in line with the provisions of the Children and Families Act 2014, specifically to strengthen the presumption of parental involvement in children’s lives in Children Act 1989 s1(2A). The combination of this and LASPO are cited in the report as being two major factors that have endangered the lives of children who have court agreed, or ordered, contact with their fathers known to the court to be violent. As a result of the above, the PD has been revised and the draft which was published on 20 January 2017 makes a number of significant changes. Most significantly, there has been an important amendment of the 2014 change of the presumption in CA 1989 s1(2A), moving away from ‘contact at all costs’ with a new para 4 of 12J which displaces the presumption where contact could place a child’s life at risk or the other parent’s life at risk, or either at significant harm. The new para 28 prevents judges and magistrates from allowing an unrepresented abuser to cross-examine a victim, and vice versa. In situations where a parent has perpetrated violence against the other, the PD will assist the court and practitioners in considering on what basis a child will spend time with the other parent.
If you need specialist advice in relation to the issues raised above, or any other family matter then please speak to a member of our specialist team on 0330 3031 999.
Sarah Sowden, Trainee Solicitor