Dere Street’s Pupil Deck

This week’s blog is brought to you by Laura Callaghan – pupil to Catherine Fagan 

Practice Direction 12J applies to any family proceedings, but for present purposes the focus will be upon its application in private family proceedings. PD12J will be engaged wherever it is ‘alleged or admitted, or there is other reason to believe’ that a party has experienced domestic abuse at the hands of another party, or there is a risk of the same.

The PD stipulates that both parties must be over the age of 16 and ‘personally connected’ to one another. Domestic abuse is definined and interpreted quite widely, including physical, sexual, psychological, emotional or economic abuse. It also includes controlling or coercive behaviour.

If a court determines that a party meets those criteria, then PD12J will become engaged. The party can also pre-emptively flag the issue by filing a Form C1A, raising the issue of domestic abuse, with the order as the Applicant, or when they receive notice of proceedings, as the Respondent.

Family Procedure Rule 3A and PD3AA will also become automatically engaged when PD12J is applicable. Both provisions relate to vulnerable persons and are fundamentally designed to facilitate a vulnerable party’s engagement within the proceedings. In A Child (Application of PDJ: No.2 – Findings of Fact) [2022] EWFC 2, HHJ Dancey said that the provisions make clear that:

‘the upshot is that where the court has yet to decide allegations of domestic abuse it must treat the person making them as vulnerable person for the purposes of FPR 3A and PD3AA and must consider the question of participation directions (whether or not requested). The purpose is to ensure effective participation and ability to give best evidence’

This reinforces the wording of the PD in that an allegation of domestic abuse is sufficient for all three provisions to become engaged.

Application In Proceedings

When PD12J has been established as being in play, the court must assume that the quality of that party’s evidence and their participation in proceedings are diminished.  An active duty is also placed upon the court by virtue of FPR 3A.2A to consider the making of participation directions. These can be sought by parties by way of application or by the courts own motion. Case law makes it clear that this is not the courts singular burden; in S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8, Lord Justice Baker made it clear that:

‘the duty to identify any party or witness who is a vulnerable person, and to assist the court to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished, extends to all parties to the proceedings and their representatives’

Accordingly, once PD12J is engaged, this duty is discharged as the party is automatically deemed to be vulnerable, and therefore entitled to apply for special measures to facilitate their engagement and participation. These include (under FPR 3A.8):

1. Screens
2. Video link
3. Communication aid devices
4. Intermediaries

Finding Of Fact Hearing

If the allegations of domestic abuse are denied, then PD12J requires that the court should determine as ‘soon as possible’ whether a fact-finding hearing is necessary to provide the basis for an ‘accurate assessment of risk’. Where it is not proportionate or the allegations have little or no bearing on the final determinations, the court may consider it is not necessary and must record that, including reasons, on the face of the order. Where the court determines it is necessary, it must give directions which establish parameters and boundaries in how findings may be sought. Often, this takes the form of a Scott Schedule, a judicially number limited document containing that party’s allegations.

There has been criticism in case law that there seems to be an assumption that a fact find is automatic in cases where PD12J is engaged. The President in V (A Child) [2015] EWCA Civ 274 noted that there is:

‘a danger, I fear, that in any case where the label ‘domestic abuse’ or ‘domestic violence’ is used, there is a semi-automatic reaction in the minds of CAFCASS officer and other professionals in the court proceedings to think that inevitably all such allegations need to be thoroughly investigated, no matter how old or disconnected’

Discussion

There appears to be criticism in case law that that PD12J may operate as a somewhat of a straitjacket in that the courts and representatives could feel railroaded into determining each and every allegation of domestic abuse irrespective of relevance. This can cause significant delay in things like parental contact with the subject child, as outstanding allegations against the perpetrator can often mean that contact is solely indirect, or not progressed at all.

However, PD12J is perhaps indisputably a very significant and effective piece of guidance, in that it promotes and assures comprehensive participation in proceedings for those individuals in a vulnerable position by virtue of having to face, and potentially give evidence against, their alleged abusers. It also furnishes the court with a wide array of mechanisms by which to do this, and a large degree of latitude to ensure that it can take a case by case rather than blanket approach.