what is Practice direction 12j?

PD 12 J applies to cases involving allegations of abuse.

The court should determine at the earliest opportunity, usually at the FHDRA, whether domestic abuse is raised as an issue and likely to be relevant to any decision relating to the welfare of the child, and whether the child and/or parent would be at a risk of harm in the making of any child arrangements order.

The court must decide whether domestic abuse is an issue, and if so take into account various considerations to satisfy itself that any contact ordered with a parent, or any child arrangements order does not expose the child or other parent to the risk of harm, and is in the best interests of the child.

We have summarised PD 12J below and we hope the summary will assist you in understanding the implications of PD12J.

General Principles

Domestic abuse involves any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to psychological, physical, sexual, financial, or emotional abuse. 

Domestic abuse is harmful to children as they may face direct physical, psychological and/or emotional harm from living in homes with domestic abuse. They may also suffer indirect harm where the domestic abuse affects the parenting ability of their parent/s. 

First Hearing Dispute Resolution Appointment (“FHDRA”)

Before the FHDRA

If the court is provided with information which suggests abuse does or did exist, the court must ensure these issues are addressed at the FHDRA hearing.

Parties will not be required to engage in dispute resolution methods which may not be suitable/safe. 

 The court should ensure that prior to the FHDRA, special arrangements are made for protection of the child or parent, if required. These may include court room screens and separate waiting areas.

During the FHDRA

Parties should be provided with the safeguarding letter/report by CAFCASS prior to the FHDRA. If they have not received this, the court must explain the content of the safeguarding letter/report to parties, unless it would create a risk of harm to a party or the child.

 If the results of CAFCASS safeguarding checks are not available at the FHDRA, the court will adjourn the FHDRA, until available.

 If the CAFCASS officer suspects that the child concerned is at risk of harm, they must provide a risk assessment for the court.   

Admissions

If an admission of abuse is made at a hearing, this must be recorded in writing by the judge and set out as a schedule to any order.  A copy of the order should be made available as soon as possible to the CAFCASS officer. 

Directions for a Fact-Finding Hearing

The court should decide as soon as possible whether it is necessary to hold a fact-finding hearing with regards to any disputed allegation of domestic abuse.

 In determining whether it is necessary to conduct a fact-finding hearing, the court should consider:

• the views of the parties and of CAFCASS;

• any sufficiently factual admissions by a party;

• legal aid considerations;

• other factual evidence available; 

• nature of evidence required to resolve disputed allegations;

• nature and extent of allegations, and their relevancy to the child arrangements;

• whether a separate fact-finding hearing would be necessary and proportionate. 

 If the court decides not to conduct a fact-finding hearing, it must record its reasons. 

 If the court decides to conduct a fact-finding hearing, it must set out how the proceedings will be conducted to ensure that the matters are resolved as soon as possible, fairly and proportionately. This includes information on: 

• - key facts at dispute;  

• - whether further evidence or third party evidence is required;

• - whether written statements or oral evidence required; 

• - support for the alleged victim; 

• - need for a pre-hearing review;

• - and other issues. 

 The court must also fix a Dispute Resolution Appointment to be conducted by the same judge where possible. 

Reports under Section 7

Where there are concerns of risk of harm to a child from domestic abuse, a section 7 report by a CAFCASS officer may be ordered by the court. 

The court should set out clearly the matters that need to be addressed in the section 7 report e.g. question of contact or welfare etc. 

 If a fact-finding hearing is taking place on the issue of domestic abuse, usually the court will not request a section 7 report until afterthat hearing. The CAFCASS officer should receive a copy of the judgment of the hearing. 

Representation of the Child 

The court should consider whether the child should be made a party to the proceedings and separately represented. This will depend on the seriousness of allegations and difficulty of the case. 

 If the court decides the child should be represented, then it should review the allocation decision to ensure the correct judge is allocated. 

Interim Orders 

The court must not generally make an interim child arrangements order, or orders for contact, in the absence of safeguarding information, unless the court is satisfied that it is in the interest of the child to do so and would not expose the child or parent to an unmanageable risk of harm.

 In deciding any interim child arrangements the court should:

• - take into account the welfare check-list;

• - consider the likely effect on the child and the care given to it;

• - consider the risk of harm on the child and parent; 

• - consider the level of appropriate contact (supervised, direct, indirect etc.);

• - consider whether contact would be beneficial for the child. 

Fact-Finding Hearing

The fact-finding hearing involves allegations being responded to and is an investigative process. 

Each party may be asked to list the questions they want to ask the other party, and to confirm in sworn evidence their version of the disputed facts. 

 The judge may conduct questioning of witnesses where appropriate. 

The court should, where practicable, make factual findings as to the nature and degree of any domestic abuse and its effect on the child, the child's parents and any other relevant person.

The court must record its findings in writing in a schedule to the relevant order, and the court office must serve a copy of this order on the parties, and send to the CAFCASS officer.

 At the end of the hearing, the court should consider whether any further clarifications are required for the section 7 report. 

 Where the court has made findings of fact on disputed allegations, any other hearing in the proceedings should be conducted by the same judge. Limited exceptions may be made. 

Cases where Domestic Violence or Abuse has Occurred

Where domestic abuse has occurred, the court should gather information regarding local support services available to assist where domestic abuse has occurred. 

If the court is considering any form of contact or involvement of the parent in the child’s life, it should consider whether any additional reports or risk assessments are required, and whether any advice or treatment is required as a precondition. 

 The court may also make an Activity Direction which requires intervention approved by CAFCASS.

Factors in making Child Arrangement Orders in Cases where Domestic Violence or Abuse has occurred

The court should ensure that any order for contact will not expose the child to a risk of harm and will be in the best interests of the child.

The court should apply the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. 

In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. 

The court should only make an order for contact if it is satisfied that the physical and emotional safety of the child and the parentwith whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

The court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider:

• - effect of the domestic abuse on the child and on the arrangements for where the child is living;

• - effect of the domestic abuse on the child and its effect on the child's relationship with the parents;

• - whether the parent wants to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;

• - likely behaviour during contact of the parent against whom findings are made and its effect on the child; and

• - capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.

Directions on Contact

If the court decides domestic abuse has occurred, but having taken into account various considerations, decides contact is safe and beneficial for the child, it should consider what conditions are required for the order to take effect, including:

• -  whether contact should be direct or indirect

• -  whether or not contact should be supervised, and if so, where and by whom;

• -  whether any conditions should be imposed on the parties;

• -  whether contact should be for a specific time period; 

• -  whether it is necessary for the child's best interests to review the order and if so, when. 

(j)    Court Reasons

The court must always make clear in its judgment or reasons, how its findings on domestic abuse have affected its decision on child arrangements, and why the order made will not expose the child to the risk of harm and is beneficial for the child.

Scott schedule

Below is an example of a Scott Schedule. This document is used by the court to list any and all allegations made in the case. The allegations can be made by either parent. The person making the allegation(s) is usually directed to first complete the table. The court will set a date by which this must be done. Once completed, the table is sent to the other side so that they can also respond to the document. Again, the court will set dates as to when the response must be completed by, and when the document must be sent to the court and the other side. The table (Scott Schedule) should not be used as an opportunity to provide a narrative. It must be precise and succinct. The document is usually prepared for pre-trial review (PTR) hearings but they can also be prepared for dispute resolution appointment hearings (DRA) to enable the court to decide whether or not a fact-finding hearing should take place.