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Children: child arrangements orders – safeguards when domestic abuse arises (England and Wales)

Published Monday, February 10, 2020

This House of Commons Library briefing paper considers the safeguards available to courts when issues of domestic abuse arise in connection with family proceedings. A link to the full report in pdf format can be found at the bottom of this page.

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Practice Direction 12J (PD12J), of the Family Procedure Rules 2010 published by the Ministry of Justice, sets out “what the Family Court or the High 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”.

Where allegations of domestic abuse, then a court can request a fact-finding hearing (also known as a finding of fact hearing). PD12J sets out the factors that a court should consider when determining whether it is necessary to conduct a fact-finding hearing

PD12J is currently in its third iteration and in 2017, new Part 3A and the accompanying new Practice Direction 3AA were introduced which make “special provision about the participation of vulnerable persons in family proceedings and about vulnerable persons giving evidence in such proceedings”.  

The Home Affairs Select Committee considered how the courts deal with domestic abuse during family proceedings in their October 2018 report, and made a number of recommendations. The current arrangements have also been considered in a report by Women’s Aid and Queen Mary University School of Law, as well as during a parliamentary debate.

It is possible there will be further reform in this area: the Conservative Party stated in their 2019 manifesto included reference to the issue domestic abuse and the Conservative Government said in March 2019 that it was seeking “significant reforms” to family law in general. The Ministry of Justice has established a Family Justice Panel to consider how the family courts protect children and victims in child arrangement cases where domestic abuse and other serious offences arise – the Panel is expected to produce a full report outlining their findings and recommended next steps in Spring 2020. The judiciary is also considering the matter: a Private Law Working Group headed by Mr Justice Cobb has said it would consider any changes in practice recommended by the Family Justice Panel.

The issue of cross-examination by perpetrators domestic abuse of their victims is a separate matter, but Box 4 provides a brief discussion of this topic.

This note applies to England and Wales only.

Commons Briefing papers CBP-8764

Author: Tim Jarrett

Topics: Children and families, Family law

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