what is Practice direction 12j?

PD 12 J applies to cases involving allegations of abuse. PD means practice direction. PDs are released by the Head of the Family Court. The Head is called the President. PDs are released to help the court run efficiently. Sometimes PDs respond to concerns of society. In this case, abuse is a concern of society. Abuse is also a criminal offence.

PD 12 J has 40 paragraphs. It is activated when a parent raises abuse. When abuse is raised, the court is obliged to consider whether the abuse is relevant to any final court order that may allow a parent to spend time with children or children to live with them. In short, this means that the court must make sure that a child(ren) will not be at any risk of abuse.

Abuse is defined in PD12J, and it can be direct or indirect. Abuse can be presented as taking place once, over a number of incidents, or is on-going, including using the court system to inflict abuse.

• Direct abuse is when a parent or child(ren) are abused first hand, or at risk of being abused.

• Indirect abuse is when a child(ren) experiences abuse by, for example, living in a household that experiences abuse.

Specific categories of abuse are listed in PD12J. These are:

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see below);

(e) psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident or a course of conduct.

(4) “Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to—

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.

For those that may have committed abuse, it is best to be honest, seek help and move forward to help your child(ren). Proactive steps to remedy your conduct will be viewed positively by the court as it will mean that you understand the nature and impact of abuse on your children and the other parent. It is also a sign of responsibility and reflection. You should not take it personally when your children are fearful and remember your own childhood and the triggers that caused you fear. Your fear as a child is no different to how your child(ren) may be feeling. Be patient and kind as the impact of abuse is a traumatic experience, especially as children cannot see or process experiences like adults.

If abuse is raised, the court will ask the parent raising abuse to put forward a statement detailing their experiences. The other parent will then be asked to respond in a statement. These statements are called witness statements, which are then considered at the next hearing to decide whether a fact finding hearing should take place or if it is best that Cafcass investigate a little more for the court. If the court decides that a fact finding hearing is the best way forward, then the court will appoint a free lawyer for you to help you. This help is limited to cross examination only, i.e., the lawyer will not present your case for you.

Use our free templates to draft your statement.

Some statements will be supported by a document set out in a table form called a Scott Schedule. This is a tool that helps identify the categories of abuse. There is a mix of opinion regarding the usefulness of a Scott Schedule. FFRAP believes as long as there are reminders not to limit abuse to the table only, i.e., recall the witness statement and the information parents provide at fact finding hearings, then the Scott Schedule is a helpful aid as it succinctly captures a snapshot of the experience of abuse. In essence, it is a tool for practitioners rather than an evidential document.

To make sure everything is in place for the fact finding hearing, the court will organise a hearing before the fact finding hearing, which is called a pre trial review.

If you are found to have committed abuse, you should accept the findings and work with the court as to the next best step. Not accepting the findings presents you as dangerous as you are refusing to accept a legal process and a legal system’s finding. The backbone / functioning of the country is through the legal system.

You can appeal the findings but appeals are complex and often the appeal judge will be reluctant to undo any findings from a fact finding hearing unless there are serious grounds of errors in law, procedure or some other irregularity. At FFRAP, we advise you to seek independent legal advice from a barrister about the merits of your appeal. Merits mean whether you will be successful or not.

If you need help, please contact us on info@ffrap.com but kindly note that we do not have resources to assist with appeal. We may be able to sign post you to other agencies.