Domestic abuse is a devastating issue affecting millions in the UK each year. Many of these victims end up in family court proceedings with their abusers, where their safety should be the top priority. However, the current system is failing them.
In 2014, Practice Direction 12J was introduced to address this. It provides guidance on how family courts should handle cases with domestic abuse allegations. But over 5 years since its implementation, many issues remain unresolved. We will break down what Practice Direction 12J is, why it was brought in, and most importantly – how the courts are still getting it wrong at the expense of survivors.
What is Practice Direction 12J?
Practice Direction 12J is supplementary guidance within the Family Procedure Rules of England and Wales. It sets out steps the family courts must take in cases with domestic abuse allegations to ensure safe outcomes.
Some of the key principles include:
- Identifying cases with domestic abuse at the earliest opportunity.
- Preventing abusive cross-examination of survivors by their perpetrators in court.
- Ensuring the impact of domestic abuse is understood before making decisions regarding child arrangements.
It marked an important milestone – finally acknowledging the failures of family courts in protecting survivors and enabling further abuse. But has Practice Direction 12J lived up to its promises since being introduced in 2014?
Why Was It Introduced?
For many years, campaigners highlighted how family courts were enabling abuse by ordering child contact with perpetrators without sufficient understanding of the violence.
The tragic case of Jessica Gonzales in the US sparked outrage when courts granted her abusive ex-husband access to their daughters shortly before he murdered them. This stark example of the courts failing to protect rang alarm bells.
In the UK, similar issues were raised following deaths like that of Nicholas Scott, killed by his abusive father during court-ordered contact. Time and time again, rulings were made that placed survivors and their children in harm’s way.
Practice Direction 12J was introduced to rectify these failings by embedding best practice in the family court process. Let’s look at how it falls short in reality…
The Failings of Practice Direction 12J
Despite the well-meaning intentions behind 12J, many issues remain in how it is implemented:
Inadequate Domestic Abuse Training
A major stumbling block is the lack of domestic abuse training for family court professionals like magistrates, judges, and social workers. Without proper understanding, they struggle to identify more subtle coercive and controlling behaviors – often missing the abuse altogether.
The impact is clear in research showing less than 2% of private law children cases in 2018 identified domestic abuse as a risk factor. With 1 in 4 women experiencing domestic abuse in their lifetimes, this statistic should undoubtedly be higher.
Clearly, adequate training for all professionals handling these sensitive cases is still lacking many years since 12J began. Until this is addressed, abuse will continue being overlooked.
Survivors Not Being Heard
A core principle of 12J is understanding the impact of domestic abuse before making child arrangement decisions.
Yet survivor groups report women still feeling silenced in court proceedings. Judges appear dismissive of disclosures and recommendations from domestic violence support services. Accounts of abuse by the perpetrator are often taken at face value over survivors’ versions of events.
If courts fail to hear and understand survivors’ experiences, child contact rulings will remain unsafe. Abuse disclosure schemes must be more widely adopted so survivors feel able to speak openly without fear of judgement.
Abusers Cross-Examining Survivors
One of the most traumatic experiences for survivors is being directly cross-examined by their abuser in court. 12J states this should be prohibited – but far too often, it still occurs.
Research by Women’s Aid found 1 in 5 survivors were cross-examined in child arrangement cases by their abusive ex-partner. This allows perpetrators to continue coercion and control through the court process.
Barristers must be made available for cross-examination on behalf of litigants in person. Otherwise, the courts essentially facilitate repeat victimization. Judges also need greater willingness to prevent direct cross-examination of survivors.
Child Welfare Not Prioritized
Most concerningly, child welfare is still not being placed first – as the tragic cases mentioned earlier highlight.
Research shows contact with abusive parents puts children’s physical safety and emotional wellbeing at risk. Yet arrangements still go ahead without sufficient assessment of dangers.
This lack of child-centered practice stems partly from the pro-contact culture in family courts. There is an assumption contact with both parents is inherently positive, even if one parent is abusive. However, a child’s right to live free from harm should override any considerations around contact.
Until courts take serious heed of welfare risks, unsafe contact orders will continue being made. Closer multi-agency collaboration is needed to gather all evidence before decisions are reached.
Call for Change
As we’ve seen, despite Practice Direction 12J’s good intentions, serious failings around its implementation remain. So what needs to change?
Firstly, comprehensive domestic abuse training must be mandatory for all family justice professionals. Refresher training should also be provided to keep knowledge current and skills sharp.
Measures are needed to ensure survivors feel heard, believed, and safe to disclose abuse. Using specialist support services like IDVAs helps facilitate this.
Where abuse is identified, contact should be refused unless the perpetrator engages with accredited behavior change programs and the survivor feels safe. Any contact must be closely supervised.
Most importantly, we need a culture shift placing child welfare above any other consideration. Practice Direction 12J will only be effective when that principle truly underpins every decision.
While Practice Direction 12J was introduced to better protect domestic abuse survivors and their children in family proceedings, it has so far fallen short.
With lives put at risk by unsafe court rulings, urgent reform is needed to translate 12J from well-meaning words into consistent, meaningful action. Survivors deserve a justice system that makes their empowerment and safety the highest priority. Only then can we build a society where domestic abuse has no place.