The double bind in Practice Direction 12J – Residence and Contact Orders: Domestic Violence and Harm

Nick Woodall

Much of the work I have done around family separation has been to unpick the fixed ideas and stereotypes that surround families as the reorganise. It can often be both an illuminating and frustrating process.

This is a small example, tucked away in the Ministry of Justice Practice Direction, PD 12J – Residence and Contact Orders: Domestic Violence and Harm. It reads:

Factors to be taken into account when determining whether to make residence or contact orders in all cases where domestic violence has occurred

27

In every case where a finding of domestic violence is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider –

(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;

(b) the extent to which…

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2 comments

  1. Anonymous · April 9, 2014

    Then by deduction a mother seeking contact/residence could equally be assmed to be the perpetratator of violence according to direction 12J. In the few cases I have come across mothers are kept away from their children by fathers who portray them as alcoholics, witches or drug addicts who are only concerned with themselves. Is there a direction in favour of this attitude?

    I agree it’s far too easy for the resident parent to put up all sorts of legal barriers to keep the contact parent at bay. Many of these are false or petty and should not be seen by the court/social workers as a reason to keep the contact parent away from their children. One such instance was a father who had to oppose his ex’s insinuations that he stubbed his cigarette out on the carpet. Not a reason to keep a father away from his children I would think.

    In a previous blog you said domestic violence issues should be kept out of the family court entirely. This would seem more reasonable. We should also recognise that if a parent commits a violent act that doesn’t mean to say they are a bad parent. It means they got angry and lost control. The solution lies in anger management, not in keeping the children away. In fact keeping the children away may be one of the triggers that is fuelling the anger.

    Kind regards

    Like

  2. padrestevie · April 10, 2014

    Many thanks Nick for pointing this out. It’s something that I previously missed. I think there is an even more worrying trend within practice directions in the family courts which extends to the debate surrounding family issues. I’m referring to the frequent misuse and misunderstanding of words.

    In this instance the heading to paras. 26 &27 tells us that these directions apply “…. In every case where domestic violence has occurred”. Para. 27 reinforces the intention by directing the court that the directions shall be applied “In every case where a finding of domestic violence is made,”.

    Nonetheless, in spite of using clear and unambiguous language to spell out the intention (replete with carefully concealed bias), in practice, this does not prevent further bias by extending these directions to include unproven and even uninvestigated allegations of domestic abuse.

    Sir James Munby has not endeared himself to some campaigners for father’s rights. Nonetheless, in his 7th View from the President’s Chambers, he has taken the lead in an attempt to at least get those concerned to speak in the same language. He stated publicly that:

    “What …. is for me a real concern – is something symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders … must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders. This principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Both parties and non-parties to whom orders are addressed must take heed … Non-compliance with orders should be expected to have and will usually have a consequence…”

    I hope Sir James is also alluding to legal sanctions for non-compliance with contact orders.

    I think that engaging everyone in the use of common tongue is a very good starting point that is to be applauded.

    In only a few months Sir James Munby has single handedly,

    • Cut through years of malaise by starting to undo the locks of secrecy in the family courts (promulgation of his own judgments has set an example),
    • Publicly stated an intent regarding compliance with orders, and
    • He has also publicly apologised to an alienated father for the court’s inability to act. http://www.dailymail.co.uk/news/article-300430/Judge-Family-justice-failed-father.html

    Whilst each of these is potentially significant, the comparative lack of press coverage is indicative of the prevailing culture of laziness and/ or bias in the media. It would appear that lobbying the judiciary could be the most productive route to short term and meaningful reforms.

    Less secrecy in the family courts will ultimately enable the collection of data. The actual data will then show that the groundless, mindless and loud mouthed assertions of those that seem to enjoy a great deal of attention and funding at the moment are motivated primarily by self interest and an agenda. It will also demonstrate that perhaps some personal espousals from authority are actually biased and bigoted abuses of position. It will ultimately be shown that, whereas the interests masqueraded are those of children, the only interests actually being served are selfish interests.

    Like

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