What does the law say?…
The heading of the Marilyn Stowe blog by Paul Apreda, the National Manager of the Welsh charity FNF (Families Need fathers), Both Parents Matter, Cymru entitled ‘Are the best interests of the child no longer paramount?’ is controversial, perhaps deliberately so. It refers to the draft practice direction (PD), which in its present form is entitled Family Procedure Rules 2010 Practice Direction 12J – Child Arrangements & Contact Order: Domestic Violence and Harm (‘PD12J’).
In this note, in an attempt to provide clarity in any debate, I should like to look at the statutory principles in issue, namely Children Act 1989 s 1, described by Paul Apreda as the ‘corner stone’ – the paramountcy principle – of children law. Section 1 was extensively amended by Children and Families Act 2014 (CFA 2014). I want to look at the words – just the words – and what they may mean in their legal context. I will try to do that without PD or parental feelings overlay.
A number of amendments to the present version of PD12J are proposed in a report to the President of the Family Division, Sir James Munby, by Cobb J . The controversial (as between Cobb J and Paul Apreda) passage in PD12J is, as proposed by Cobb J (with the original shown here as deleted) is:
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 section 1(2A) of the Children Act 1989 shall not apply.n [I pick up the n below] The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm.
Cobb J’s report is published by Sir James Munby with his 16th View from the President’s Chambers ‘Children and vulnerable witnesses – where are we?’ . Sir James comments on the report, but seems to accept what is recommended for the redraft of para 4.
Law reform, Henry VIII and a practice direction
Paul Aspreda makes his position on this passage clear from his opening paragraph:
Stephen Cobb is a very senior Judge in the Family Court. He is a remarkable man. He recently proposed an effective end to the paramountcy principle – the overarching golden rule in family proceedings that the best interests of the child are paramount. But not content with demolishing the corner stone of the system, it looks as though he may believe the family courts can overrule the will of Parliament too.
In doing this he picks up an argument, also mentioned in my ‘Domestic violence & family proceedings: Practice direction amendments to protect vulnerable witnesses & children’ (). How appropriate is it to legislate by PD? As I explain later, it cannot lawfully be done. The point is developed by ‘Lucy R’ in ‘Imaginary judges use imaginary powers to reform imaginary law’ where she says (of ‘judges’ but she is speaking of a PD):
Judges can’t changes the law. Parliament changes the law. In this case, Parliament does it by approving a Statutory Instrument that amends the Family Procedure Rules. That Statutory Instrument comes from the Family Procedure Rules Committee, a committee created by Parliament, which the judges don’t control.
It is not even as simple as that. If a rule tries to change the law, it can only do so in the rare events that Parliament says it can. Otherwise it is known as that form statutory instrument frowned upon by constitutional lawyers, namely a Henry VIII clause (as explained by the Supreme Court recently in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice  EWCA Civ 9: where the Legal Aid Agency (‘LAA’) tried to change a law which Parliament had already made). As matters now stand only Parliament can change the law in this area; or it can be done by rule-makers and approved by Parliament.
As to the lesser form, practice directions: a PD cannot change the law (as I hope to show). Paul Aspreda’s assertion as to the proposed PD change raises important questions:
- What is the law in this area: Act of Parliament and PD?
- What does the law say and mean?
- How can it be changed, in particular can it be changed by practice direction?
Children Act 1989 s 1 and PD12J
The two sources of law which run through this discussion are the post-2014 CA 1989 s 1 and PD12J para 4. Cobb J has proposed the amendment to para 4 (amongst a number of others) in a report to Sir James Munby P. This note will set out the relevant bits of CA 1989. My review of the proposed PD amendment depends on a careful reading of the words in s 1. Considerable effort went into making the original Act as clear as possible for all readers. I am sorry to say, the 2014 amendments have made the waters of that relatively clear statutory drafting a little muddy; but that is what we must work with.
CA 1989 s 1 is designed to give first priority to the welfare of any child involved in any proceedings. So far as relevant to this article s 1 says:
1 Welfare of the child
(1) When a court determines any question with respect to –
(a)the upbringing of a child;… the child’s welfare shall be the court’s paramount consideration….
(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
(2B) In subsection (2A) ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
(3) In [making an order], a court shall have regard in particular to –
(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b)his physical, emotional and educational needs;..
(e)any harm which he has suffered or is at risk of suffering;
As can be seen sub-paras (2A) and (2B) have been added. This was by CFA 2014, which also added s 1(6) and (7). I do not think it oversimplifies the amendments to say that paras (4)(a) and (7) refer to applications for child arrangements orders and parental responsibility orders. I will come back to para (6)(a) after looking at the parts of the PD which concern Paul Aspreda, and which affect parents who have been separated from their children in the context of domestic violence proceedings.
Lawfulness of PD12J
A practice direction is made by the President of the Family Division only, with approval of the Lord Chancellor (ie Ms Truss: see Courts Act 2003 (CA 2003) s 81). It does not go through any democratic process like an Act of Parliament (voted on by MPs) or court rules (eg Family Procedure Rules 2010, mentioned above). Practice directions do no more than deal with ‘the practice and procedure’ of family courts proceedings (CA 2003 s 81 and Civil Procedure Act 1997 s 5). As can be seen, a PD is relatively far down the legislative chain of legal force and reproduction.
CA 2003 s 81(2) says that family law PDs are made by the President (as explained above) are intended to govern ‘the practice and procedure of [family] courts in family proceedings’. The meaning of a PD, in general civil proceedings terms, was further explained by the Court of Appeal in U (A Child) v Liverpool CC  EWCA Civ 475,  1 WLR 2657 by Brooke LJ. After citing the cases which say more about what PDs are, he said:
 …. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.
It follows from this, that a parent (perhaps most often a father) is entitled to ask – as does Paul Apreda – whether the revised para 4, if brought into effect, is dealing only with ‘practice’ (per s 81(2) and U v Liverpool; it is certainly not ‘procedure’). Or if, in reality, and in law, is the PD seeking to legislate? Does it attempt to set out ‘statements of law’, which the Court of Appeal says is ‘wrong’, that is, is it unlawful?
The aim of PD12J is set out at para 2: it is ‘to set out what the Family Court is should (sic) do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse’. It defines ‘general principles’, and then deals with specific procedural matters where domestic violence is suspected or has been proved. Para 4 (set out above) is the first of the ‘general principles’; and Cobb J says of this in a foot note:
Para.4: The statutory presumption in section 1(2A) CA 1989 applies “unless the contrary is shown”. Where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm, then it is suggested that the contrary would indeed be shown. Paragraph 4 has been re-worked in order to give prominence to the avoidance of risk of harm;
Children Act 1989 s 1 amendments
The CFA 2014 reforms centre (as do Cobb J’s proposed changes) mostly on s 1(2A) and (6), which is as follows:
(6) In subsection (2A) ‘parent’ means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –
(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.
When the court is making a child arrangements order three factors arise; and these lead into and help to explain Cobb J’s proposed para 4:
- There is a presumption that involvement of a parent in a child’s life ‘will further the child’s welfare’ (s 1(2A): seems surprising this needs to be set out in a statute; that point is not in issue here); and that parents can be involved in a child’s life without putting a child at risk (s 1(6)); unless
- There is some reason – ‘unless the contrary is shown’ (s 1(2A)) – why the s 1(2A) presumption should not operate; or
- ‘… there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm…’ (s 1(6)(b)).
In a sense s 1(6)(b) is a particular aspect of s 1(2A): if 1(6)(b) is proved, the contrary to a child’s involvement is likely to be shown. But an aspect of s 1(6)(b) is ‘the child at risk’. Cobb J’s para 4 goes much wider. It is repeated here (I have added the italics and boldened ‘other parent’):
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 section 1(2A) of the Children Act 1989 shall not apply.
‘…unless the contrary is shown…’
Adding ‘other parent’ to the proposed para 4 seeks to alter the law in a radical way. Children are the subject of protection in s 1, not any ‘other parent’. ‘Other parent’ was not included in the 2014 Act. Perhaps it should have been, but it was not. CFA 2014 received Royal Assent on 13 March 2014. If Parliament had wanted a particular interpretation to be placed on its words it would have said so, or it could have added those words to s 1(6). And if that is right, and if a PD is not the place to change the law, I would expect a challenge by a disgruntled parent – probably a father – before long; and that will only add to the unhappiness of another couple and their children.
Alternatively, a High Court judge, after hearing argument on the meaning of s 1(2A) and (6) in a particular case could tell us all what ‘… unless the contrary is shown…’ means in this context. With respect to the President of the Family Division – who when making a PD is an administrator not a judge – a PD is not lawfully the place to change the law; and this is so however well-meaning may be the intended Presidential reform. That is not what PDs are for.
Lucy R comments on the proposed para 4:
The problem is that this new version of paragraph 4 is that it isn’t what the actual statute says. And it is far from uncontroversial to say that the presumption put in place by parliament requires “contact at all costs”. The presumption is very carefully crafted so that where evidence is provided to show there is risk (which might be arising from domestic abuse or something else) that can’t be managed the presumption is disapplied…
There may be many cases where violence or other behaviour against the other parent – if proved – will mean that ‘the contrary is shown’. The presumption of involvement in a child’s life by a parent should be reduced appropriately (s 1(2A)). But this should be regulated by judicial decision in each case, not by the essentially undemocratic practice direction. And particularly it should not be done where something could have been said by Parliament in an act – Children and Families Act 2014 – which is not yet three years old.
Cobb J’s proposals have entirely understandable and laudable aims as fully explained by him in his report. They may not be lawful if introduced in a way which the law should not recognise. And if the PD seeks to change statute law – as it seems to do – it would go even further down the Henry VIII route even than did the LAA and Lord Chancellor did in changing legal aid eligibility. Changing the law is a long and winding, if well planned out, road; and most would say, so it should be if it is to be fair.