A mother successfully appealed an order regarding child arrangements in a judgment published this week that again highlights how the family courts deal with allegations of domestic abuse, and controlling and coercive behaviour.
The mother alleged that the father was controlling, left the children alone and had been sexually abusive to her. She removed the children from the family home in the south and moved to a refuge in the north. The father applied to the court to get the mother to bring back the children.
In a ruling last month, a district judge gave the mother 48 hours to return the children. Failing that, there would be an interim transfer of residence order ‘whilst we sort out PD12J [Practice Direction 12J] and directions that we can now go through’. The district judge said the children needed to be back in the locality with their friends and father, and concluded that any further delay would cause them further emotional harm.
Practice Direction 12J sets out what the family court is required to do in cases where it is alleged or admitted that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.
In A Child (Application of PD12J) [2021] EWFC B59, His Honour Judge Dancey, sitting in the family court, set aside the district judge’s orders.
HHJ Dancey recognised that the district judge’s judgment was extempore 'and that perfection is not expected’, but he was wrong in certain aspects of his approach.
The district judge was entitled to take a critical approach to the mother’s domestic abuse allegations, but ‘it was not open to the district judge effectively to dismiss them summarily or set them entirely to one side for the purpose of making interim orders’. He did not engage with Practice Direction 12J ‘until very much as an afterthought once he had determined the interim orders he would make’.
HHJ Dancey concluded his ruling with an observation about Cafcass’s involvement.
Cafcass completed the safeguarding letter – an initial assessment - prior to the district judge’s hearing, for which it spoke to the mother but not the father. A section 16A risk assessment was filed with the court two days after the district judge’s hearing and Cafcass appeared to have spoken to the father.
HHJ Dancey said: ‘I should add that the current practice, driven by resource demands, of Cafcass not interviewing both parents for the purpose of preparation of the safeguarding letter has contributed to the sense that the Cafcass recommendations were based solely on what the mother told them.
‘At the moment Cafcass are leaving it until the FHDRA [first hearing dispute resolution appointment] before speaking to the parties at court. I am concerned that interviewing parents in this pressured environment rather than independently away from court risks safety issues being missed. In this case of course the hearings were on non-Cafcass days and there was no opportunity to speak to both parents even at court. The father was not spoken to by Cafcass at all until after the decision under appeal.’
