A thesis published in 2014 which claims to be the first in-depth national study into the operation and effect of a Practice Direction designed to address the issue of domestic violence within the context of care and child arrangement orders highlights the little progress achieved by the family courts, five years on.

The guidance explored in the research is Practice Direction 12J, which has become best known for its clause establishing the right to ask the judge at a hearing to step in and prevent victims and alleged victims of domestic violence from being cross examined by partners who have already been convicted of abusive behaviour or have been accused of such behaviour by the victim. Whilst this Direction is only guidance and does not have the same binding effect as law, the direction has to be considered by the judge.

Practice Direction 12J tries to ensure that any care or child placement orders do not cause a child harm where domestic abuse and violence is known to have occurred within the home. The Direction also requires the court protect the parent who has been abused, from further harm.

“Contact at all costs? Domestic Violence, Child Contact and the Practices of the Family Courts and Professionals”, was written by Adrienne Elise Barnett while she was at Brunel Law School, Brunel University. The thesis, which is over 400 pages long, is an incredibly thorough and thought-provoking look at how the law discriminates against mothers trying to protect their children from violent and abusive fathers.

On the use of Practice Direction 12J at least up until 2014, and the purpose of the study, Barnett says:

“Subsequent research and case law revealed that many courts and professionals disregarded these guidelines and continued to promote contact by minimising, trivialising or ignoring women’s concerns about continued contact with violent fathers. This raises questions about why contact between children and violent fathers is seen as not only permissible but positively desirable and why it is so hard for women to oppose such contact. These are questions that this study seeks to answer.”

Among the different sections dedicated to the relevant areas of family law, is a chapter on Presumption of contact which was written shortly before the law was amended to include a clause encouraging contact with both parents after fathers campaigned for greater visibility within child welfare policies.

Here is an extract from the chapter:

“At the heart of private law Children Act proceedings lies ‘the welfare of the child’, a ‘civilising’ device that has been selectively constructed by and in family law at different times and in response to different social, political and cultural demands, and which currently works to place fathers at the centre of children’s well-being after parental separation. By locating this dominant construct in its historical, political and material context, we have seen how it operates as a mechanism of power to reinstate and maintain the father in the post-separation family, and how it regulates and disciplines mothers by constraining their self determination.

The gendered relations of power that construct, underpin and sustain law’s current construction of ‘the truth’ about children’s welfare constantly challenge and subvert attempts to focus professionals and courts on protecting children and women in private law Children Act proceedings, and deny mothers the autonomy after parental separation that is unquestioningly afforded to fathers. The strong belief of nearly all of the professionals Vanessa Munro, Law and Politics at the Perimeter: Re-evaluating Key Debates in Feminist Theory (Hart 2007)  interviewed in the benefits of contact shows how law’s current construction of children’s welfare has acquired almost hegemonic status.

The dominant welfare discourse has become increasingly axiomatic and incontestable by marginalising and discrediting oppositional meanings about children’s welfare, and by trivialising and rendering irrational women’s reasons for opposing contact with non-resident fathers. This process is reinforced by unrelenting messages from the higher courts about the importance of contact, and the strenuous efforts made to promote it, even in cases of proven domestic violence.”

Despite a growing body of evidence coming to light that children suffer deeply when exposed to domestic violence, and the government’s acknowledgement that the law needs to change in order to better protect victims of abuse, little has happened since Barnett wrote her thesis in 2014.

The government has only just published a draft bill to address the issue of alleged domestic violence victims being cross-examined by alleged abusers in the family courts – despite the criminal courts having implemented similar legislation a long time ago. The Draft Domestic Abuse Bill contains nine measures, which will:

  • Provide for a statutory definition of domestic abuse
  • Establish the office of Domestic Abuse Commissioner and set out the commissioner’s functions and powers
  • Provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
  • Prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress
  • Create a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts
  • Enable high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
  • Place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
  • Ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy
  • Extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

Campaigners are saying that while the Bill is a step forward, it is not enough. Katie Ghose, Women’s Aid chief executive, told the Law Gazette in January: ‘Although this new law is much welcomed, it alone will not protect survivors in the family courts and challenge the “contact at all costs” approach by judges which is putting children in danger.”

Barnett’s thesis offers several interesting recommendations from presumption of contact to litigants in person, and the study in its entirety is very much worth a read. Five years on, protecting women from violent partners – and we mean genuinely abusive partners – is still a tall order for the family courts in Britain.

You can read the thesis here. 

Very many thanks to Dana for sharing this study with us.