UK Family Law Reform

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President of Family Division circular: Practice Direction PD12J – Domestic Abuse
Revised PD 12J comes into force on 2 October 2017

On 14 September 2017 the President of the Family Division, Sir James Munby, issued the following circular in respect of revised Practice Direction 12J which comes into force on 2 October 2017.

In the summer of 2016 I asked Mr Justice Cobb, who had chaired the Working Group which drew up the Child Arrangements Programme in 2014, to review Practice Direction 12J, to examine whether further amendment was needed in the light of the recommendations made by the All Party Parliamentary Group on Domestic Violence in its briefing dated 29 April 2016 and by Women's Aid Federation of England (WAFE) in its 'Nineteen Child Homicides' report published in February 2016, and to produce recommendations. His Report, accompanied by a draft amended PD12J, was dated 18 November 2016. I published it in January 2017: [2017] Fam Law 225. At the same time, in my 16th View from the Presidents Chambers, [2017] Fam Law 151, 160-161, I indicated that, with one important exception, I accepted all his recommendations.

As I had hoped, the publication of the draft amended PD12J generated comments and helpful suggestions, including from Families Need Fathers and, following a presentation they gave at the President's Conference in May 2017, from Southall Black Sisters.

Although final responsibility for any amendment to PD12J rests with me as President of the Family Division, I thought it appropriate to consult both the Family Justice Council and the Family Procedure Rule Committee. The draft amended PD12J has accordingly been considered by the Family Justice Council and, at a number of its meetings when various iterations of the draft were considered, by the Family Procedure Rule Committee, most recently on 10 July 2017. Following this, a final revised draft amended PD12 was prepared by officials, for whose assistance I am grateful, incorporating the various amendments agreed by me and by the Committee and helpfully identifying a few additional issues (none of major significance) for my consideration. I should add that, throughout this process, I have benefited greatly from Mr Justice Cobb's continuing advice, for which I am most grateful.

On 7 September 2017 I made the new PD12J, annexed to this Circular. It has since been approved by the Minister of State and will come into force on 2 October 2017. It applies (see paras 1, 3) to all judges, including lay justices, whether sitting in the Family Court or in the High Court.
PD12J will require further adjustment if and when the proposed legislation restricting cross-examination of alleged victims by alleged perpetrators is enacted. We cannot await that. Hence my decision to proceed without further delay.

The new PD12J contains numerous amendments, many of important substance. Here, I highlight only two:

• There is (see para 3) a new and much expanded definition of what is now referred to as "domestic abuse", rather than, as before, "domestic violence".

• There are mandatory requirements (see paras 8, 14, 15, 18, 22, 29) for inclusion of certain specified matters in the court's order. I appreciate the additional burden that this may impose on judges and court staff, but there is good reason for making these requirements mandatory and they must be complied with.

There have been recurring complaints in Parliament and elsewhere of inadequate compliance with PD12J. I am unable to assess to what extent, if at all, such complaints are justified. However, I urge all judges to familiarise themselves with the new PD12J and to do everything possible to ensure that it is properly complied with on every occasion and without fail by everyone to whom it applies.

The Judicial College plays a vitally important role in providing appropriate training on the new PD12J to all family judges. As I have said previously, "I would expect the judiciary to receive high quality and up-to-date training in domestic violence and it is the responsibility of the Judicial College to deliver this." The Judicial College has risen to the challenge, as many judges will already have experienced, and I am confident that it will continue to do so.

Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.

James Munby, President of the Family Division
14 September 2017

We all wrongly assume that custody with mother is best 21st November 2006

Submission by Robert Whiston, former PSA-8 Committee Member

Judge Walker stated the following in evidence to the committee on Nov 9th, (Q.93), "If I may say so, we are all human - judges too. 19 children have been killed during contact since 1999 and no judge wants one of those 19 cases to be a case where he made a contact order. One is instinctively trying to do one's best to protect the children."

I would be very interested in knowing where Judge Walker derives this number. The figure of about 19 children is one that is promulgated by women activists and it was one such a group that raised the issue two years ago during a PSA-8 Committee Child Safety meeting.

The Lord Chancellors Dept looked into it and found evidence of only 3 deaths relating to contact matters in the last 10 years (I can forward a copy upon request).

As a PSA-8 committee member I discovered that once the committee as a whole had been informed of the error in the women's group information they did not want to discuss the false allegation further.

This year I discovered that the same falsehood remains on the same women's website. It is for this reason that I feel that unless the error in the judge's evidence is corrected it will become another of those 'urban myths' with which we are all so familiar with in our PC world.

All the judges were either unaware of this or failed to highlight the newer evidence in their testimony to the committee.

Also omitted was evidence regarding the most extreme forms of child abuse, i.e. neglect, cruelty and the number of child deaths, mostly perpetrated by mothers.

We all wrongly assume that custody with mother is best and safest, but examination of NSPCC statistics will make the point forcefully that the safest place for any child is to be with his/her father.

If the committee is to reach conclusions based on sound evidence I urge that these facts and observations be taken on board.

Yours sincerely,

Robert Whiston FRSA

1.Susan Creighton, NSPCC researcher (1970 -1980)
2.Warren Farrell, PhD, "Father and Child Reunion" (2001).
Both authors provide much ammunition regarding how good fathers are in matters relating to child care and raising.

NSPCC ignores its own research which showed mothers are more violent 2nd March 2006

New Court Rule Further Marginalizes British Dads, Guardian Enthuses 23rd January 2017

January 23, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The battle against children having relationships with their fathers just got a huge boost in Great Britain (The Guardian, 1/20/17). Now, this being The Guardian, it’s a bit difficult to know exactly what senior family judges actually decided and what’s just sloppy reporting. Still, this bodes ill.

In a nutshell, it appears that any allegation of domestic violence by a mother against a father will be used to prevent him from having contact with his children.

Senior judges are taking steps to end the presumption that a father must have contact with a child where there is evidence of domestic abuse that would put the child or mother at risk.

So, based on some quantum of evidence, fathers, but not mothers against whom there is a claim of DV will no longer have the right to contact with their children. Now, I’m reasonably certain that the new rules will be written in scrupulously gender-neutral language. But, even assuming that to be the case, the article makes it clear that the impact of the rules is meant for fathers because fathers are understood to be the sole perpetrators of domestic violence.

The changes include a demand from one of the most senior family court judges for all the judiciary to have further training on domestic violence and to act to ensure women and children are protected…

[Mr. Justice] Cobb called for judges to be more alert to how violent men could use the access within the courts to assault their former partners, putting forward a proposal for courts to consider more carefully the waiting arrangements before a hearing, and arrangements for entering and exiting the court building.

Notice that there is not a single word, either in the article or in the various judges’ comments, that would suggest that mothers commit domestic violence against either their husbands or children. Not. One. Word. So, however the new rules may be worded, the message is clear: the targeted parent is Dad and pretty much any “evidence” will be sufficient to deprive his child of any contact with him. And of course, whatever the message, the rule change comes against a backdrop of a culture that has yet to admit that 50% of domestic violence is committed by women.

What does the article have to say about who commits violence against children? Not. One. Word. Of course by far the most common perpetrator of abuse against children is the child’s mother. Add an unmarried boyfriend and the tendency becomes even more pronounced. So, in the United States, the Administration for Children and Families routinely reports that about 40% of the abuse of children is committed by mothers acting alone and about 60% is by mothers acting alone or with “another,” usually a boyfriend.

My guess is that similar statistics hold for the U.K. So the fact that the new rule is aimed squarely at fathers is significant. It’s targeting the wrong parent and it’s doing so for the purpose of further marginalizing fathers in the lives of their children. Those are the only conclusions I can draw given that the new rule is so dramatically at odds with everything we know about the abuse of children and their need for fathers.

And of course the rule was motivated by one of the most virulently anti-male/anti-father organizations in the U.K., Women’s Aid. Much like domestic violence organizations in the United States, Women’s Aid routinely campaigns against fathers having contact with their kids. (Keep in mind that fewer than one-third of the children of divorce in the U.K. have any form of meaningful contact with their fathers. So we might think that British dads are too marginalized to begin with, but for Women’s Aid, any father-child contact is too much. So what, you may ask, was their evidence that demanded the further marginalization of fathers in the lives of children?

The reforms are to be introduced in the family courts after campaigning by the charity Women’s Aid, which identified that 19 children have been killed in the last 10 years by their violent fathers after being given contact with them by judges.

Yes, an average of two children per year for the past 10 years have been killed by their fathers. Needless to say, that’s a terrible tragedy for those kids and their families. We all mourn their untimely deaths.

But we also must question whether their deaths constitute a crisis that demands that the relationship of all divorced fathers with their children depends entirely on allegations of abuse by aggrieved mothers. To give a bit of perspective, there are about 120,000 divorces in Great Britain every year, involving about 100,000 children. Over a 10-year period, that would be about one million kids of divorce. Women’s Aid managed to identify 19 kids out of one million who met a tragic end at the hands of their fathers.

And how many died at the hands of their mothers during that same time? No one will be surprised to learn that neither Women’s Aid nor The Guardian is saying. But this website tells us about the answer to that question in the United States. Based on ACF figures for 2008, 70.8% of children killed by a parent acting alone or with another non-parent were killed by mothers. Again, I doubt that the data in the U.K. are much different.

So the new rule aims at fathers who are far less likely to abuse or kill their children than are mothers. Make sense?

I’ll write more about this scandalous development and the utterly unprincipled behavior of Women’s Aid and The Guardian next time.