On 21 January 2017 Sir James Munby, President of the Family Division, published his 16th View from the President’s Chambers ‘Children and vulnerable witnesses – where are we?. This was accompanied by a report from Cobb J (dated 18 November 2016). This report includes a redrafted family proceedings practice direction (PD12J: ‘Child arrangements & contact order: domestic violence and harm’ [Ed : This is a DRAFT revised PD12J, which is not yet approved by the Family Procedure Rules Committee and is not in force].
This was preceded by an exchange between Ministry of Justice and the Guardian either side of Christmas centred on the concerns of Women’s Aid, re-enforced by an All-Party Parliamentary Group on Domestic Violence report Domestic Abuse, Contact and the Family Courts (October 2016) (See here), that the courts are not taking seriously enough the potential for further abuse within the court system where there are domestic violence proceedings; and that the possibility of harm to children, where abuse is proved, is not properly taken into account.
This is part of a debate in the family justice system – partly stalled – which centres on at least four main themes:
- The issues which arise from PD12J: contact with a violent parent (B); separate waiting and in-court areas; video link evidence; and so on;
- Cross-examination of A (it is normally, though not invariably a woman) by B, where he acts in person;
- The wider question of the evidence of children and vulnerable witnesses now under review by VWCWG (Vulnerable Witnesses and Children Working Group); and
- Primary legislation for all this. (Much is provided for in criminal proceedings by Youth Justice and Criminal Evidence Act 1999: but not for family proceedings; and still not, in 2017?).
This blog looks at (1) and (2). The remaining issues are part of the wider, and still very important, debate which is probably delayed due to discussion in Ministry of Justice about the resources (such as a properly working video in the President’s own court (see e.g. Law Society’s Gazette) and much, much more). In the meantime, there is a real worry, which Cobb J wants to overcome, that judges are not properly taking into account even the unamended PD12J.
The amended PD12J proposes improvements to procedure and suggests a change of law. I do not want to appear a Jonah on this; but any reforms to a practice direction must comply with the law. At common law (supported by European Convention 1950 Art 6(1) (right to a fair trial)) everyone in an English court is entitled to a fair trial. Neither rules nor a practice direction can alter the law. To reform the law unlawfully may make it unfair. And if it is unfair it leaves room for B to say it does not apply to him because it is has been amended unlawfully.
PD12J deals with contact, domestic violence and the amended Children Act 1989 s 1 where there are allegations of domestic violence, or later where it has been proved. If the court is considering a child arrangements order to deal with contact between a parent and his (mostly it is men) CA 1989 s 1 – the welfare of a child – comes into play. The original simplicity of s 1 had clunky amendments added to it by Children and Families Act 2014. These included s 1(2A) which says that when the court makes a child arrangements order (ie including contact) it must ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’. Unless the contrary is shown it is to be assumed by the court that involvement of both parents in a child’s life will ‘further the child’s welfare’.
The new PD12J para 4 is proposed to say, on arrangements for contact between an abusive parent (B) and his child(ren): ‘4 Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse, the presumption in CA 1989 s 1(2A) shall not apply.’ A note to para 4 says: s 1(2A) applies ‘unless the contrary is shown’, so B’s behaviour puts a child or A at risk ‘the contrary would indeed be shown’. The difficulty with this argument – or with what is said in the note – is that Parliament did not say so.
So, to put what may be a controversial interpretation of s 1(2A) into a practice direction when Parliament could – or should? – deal with it, leaves unnecessary questions in the air. From A’s point of view it leaves her open to an argument from her ex as to the legality of para 4; and I am sure there will be plenty Bs who would be ready to challenge the new PD, and say that the new para 4 is not within the powers of the President (who issues practice directions).
Complainant: a party to proceedings, cross-examining by defendant
The second point in the list deals with cross-examination of A by an unrepresented B, and with any possible re-abuse of A in court as a result. There is a second issue here: A having to cross-examine B (I will come back to that). PD12J para 28 has a proposed addition: that at any hearing the judge ‘must not permit an unrepresented [B] to cross-examine or otherwise directly question [A] …’. In his 16th View, Sir James questions whether such a restriction can ‘lawfully be achieved by a practice direction’. It is most likely that it cannot.
This happens where B, acting in person, exercises his right to cross-examine A. Youth Justice and Criminal Evidence Act 1999, for criminal proceedings, puts the question beyond doubt. YJCEA 1999 s 34 reads: ‘No person charged with a sexual offence [D: for this in family proceedings read: ‘alleged domestic violence’] may… cross-examine in person… the complainant….’. YJCEA 1999 s 38(4) deals with cross-examination of the equivalent of A (C), by saying that an advocate ‘must’ be appointed to cross-examine to protect C. Payment for the advocate is by public funds (s 40).
The facts in H v L and R  EWHC 3099 (Fam)  2 FLR 162 illustrate the point. An alleged abuser (ie B) wanted to cross-examine A (the abused mother of his child). Roderic Wood J said, in a judgment given nearly 10 years ago (7 December 2007):
 I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds.
I fear a practice direction banning cross-examination by B does not resolve the question. If A is legally aided help along the lines of ss 38(4) and 40, with pro-active case management, could be available in family proceedings. That said, it would be preferable to have proper funding under statutory provisions to protect abused parties and children and akin to YJCEA 1999 ss 38(4) and 40 for family proceedings. (A draft statutory provision can be found here)
Abused complainer as cross-examiner
If A is unrepresented (perhaps she is financially ineligible for legal aid), she will be responsible for cross-examining B; and she may also find that intimidating. Unlike where she is to be cross-examined there is help at hand in the existing law (as explained also on Pink Tape here). Matrimonial and Family Proceedings Act 1984 s 31G(6) applies to family courts proceedings and says:
(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.
So long as a judge accepts that A is ‘unable to… cross-examine’ B – and in the context a judge should need little persuasion of that – then s 31G(6) applies and the judge will ask A what she wants to challenge in B’s evidence. The judge will then question him in A’s ‘interests’.
Practice direction and new law
Much remains to be done in this and related fields (as (3) and (4) in the list above show). If the law can be developed lawfully – that is, where needed, by references in legislation (eg in a schedule to a relevant Act now going through Parliament) – then the reforms along the lines of what is in PD12J will be welcome, as they have already been welcomed by Women’s Aid.