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

The Family Procedure Rules 2010 (FPR 2010) and supporting practice directions govern the procedures used in family proceedings in the Family Court and the High Court. Practice Direction 12J (PD12J) of the Family Procedure Rules – Child Arrangements and Contact Orders: Domestic Abuse and Harm – sets out what the courts must do in certain cases where domestic abuse is raised.

Judges must follow PD12J and be alert to the possibility of domestic abuse being a factor throughout a case’s hearing. Among other things, PD12J:

• States that a court should consider asking for a report on the welfare of a child (a section 7 welfare report) “in any case where a risk of harm to a child resulting from domestic abuse is raised as an issue…unless the court is satisfied that it is not necessary to do so in order to safeguard the child’s interests.”
• States that, where disputed allegations of domestic abuse arise, a court can also request a fact-finding hearing. The PD also sets out the factors that a court should consider when determining whether it is necessary to conduct a fact-finding hearing.
• States that, where domestic abuse is admitted or proven, a court must ensure that “any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm”.
• Sets out a range of factors that a court should consider when determining whether to make a child arrangements order in cases where domestic abuse has occurred.

In addition, a new Part 3A and accompanying Practice Direction 3AA were introduced to the Family Procedure Rules in 2017, which make “special provision about the participation of vulnerable persons in family proceedings and about vulnerable persons giving evidence in such proceedings”.  

Further information is provided in sections 2-4 of the briefing.

Family Justice Panel

In May 2019, the Ministry of Justice established a Family Justice Panel to examine how effectively the family court responds to allegations of domestic abuse. The Panel’s final report, which was published in June 2020, highlighted “continuing concerns” around how the family court system recognises and responds to allegations of domestic abuse. The report made a number of recommendations for change, including around protections in court for victims of domestic abuse. It also recommended that there should be a review of the presumption of parental involvement under section 1 of the Children Act 1989.

The Government published an Implementation Plan in response to the Panel’s report. Among other things, this stated that the Government would:

• Review the presumption of parental involvement.
• Pilot “integrated domestic abuse courts (IDAC) that address criminal and family matters in parallel”.
• Prohibit the cross-examination of victims by perpetrators of domestic abuse in the family courts (see below).
• Make victims of domestic abuse automatically eligible for special measures in the family court (see below). (Special measures are provisions to help vulnerable and intimidated witnesses give their best evidence in court and can take the form of separate waiting rooms, entrances and screens.)

Further information is provided in section 5.1 of the briefing.

Domestic Abuse Act 2021

The Domestic Abuse Bill 2019-21 was introduced to Parliament on 3 March 2020. It received Royal Assent on 29 April 2021. The Act includes a number of provisions related to how the family courts address issues of domestic abuse in private law proceedings relating to children. The Act:

• Explicitly recognises children as victims of domestic abuse if they see, hear or experience the effects of the abuse.
• Provides for the introduction of a new automatic ban on perpetrators of abuse cross-examining their victims in the family courts (and vice versa), in certain circumstances.
• Makes provision to extend the availability of “special measures” to victims of domestic abuse in the family courts.
• Clarifies the use of so-called “barring orders”.

The relevant sections of the Act have not yet been brought into force.

Further information is provided in section 5.3 of the briefing. 

Reviews by the Judiciary

In autumn 2018, the President of the Family Division of the High Court announced that a cross-professional Working Group had been established to examine “the approach taken to private disputes between parents with respect to the arrangements for their children’s future welfare following a separation.”

The Private Law Working Group published an interim report in June 2019, followed by a Second Report in April 2020. In November 2020, the Family Solution Group, a subgroup of the Private Law Working Group, published a further report: “What about me?”: Reframing Support for Families following Parental Separation.

All three reports discussed how the family courts responded to allegations of domestic abuse. Further information is provided in section 6 of the briefing.