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September 27, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

As bad as I thought it was from the descriptions offered by The Guardian newspaper and others, the substituted Practice Directive for British family courts may actually be worse. Beyond question it is so vague and non-specific on vital points of its chosen subject, i.e. domestic violence in child custody cases, that judges are given broad enough discretion to do virtually anything they wish. And of course, this being the U.K., such discretion is all but certain to lead to the further marginalization of fathers in their children’s lives. Given that the directive itself seems to have come in response to a complaint by Women’s Aid that proved to be without basis in fact comes as no surprise. That conclusion is only bolstered by the fact that the judges deciding the Practice Directive utterly ignored the fact that mothers commit vastly more child abuse (including murder) and neglect than do fathers.

In short, the fix was in from the outset.

Here’s the Practice Directive itself.

Kindly note first the “definition” of “domestic abuse.”

“domestic abuse” includes 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.

Therefore, essentially any unpleasant behavior engaged in a single time by one intimate partner to another or any family member qualifies as domestic abuse. So if John’s mother-in-law makes a habit of getting sloppily drunk at his house and breaking things, he commits domestic abuse if he complains overmuch about it. Few believe that a single such instance would do much to move a family court judge, but the picture is there for all to see: it doesn’t take much for any adult to be deemed to have engaged in domestic abuse.

Not only that, but, elsewhere, the directive makes clear that domestic abuse can be anything that harms an adult or child, but also that places anyone “at risk” of harm. What does “at risk” mean? The directive makes no effort to explain. Sapient beings, however, understand that everyone who lives with another person is “at risk” of domestic abuse at all times. After all, since domestic abuse includes any single incident of an astonishing array of behaviors, well, such a thing could happen any time, thereby placing us all “at risk” of harm.

Not for nothing did the President of the Family Division, Sir James Munby, opine in a letter to colleagues that,

There is (see para 3) a new and much expanded definition of what is now referred to as "domestic abuse", rather than, as before, "domestic violence".

“Much expanded,” indeed.

Now, one of the many problems with the Practice Directive (PD12J) I’ve complained about before is that, apparently, any quantum of evidence can produce a finding that domestic abuse has occurred. And sure enough, there’s not a word in the directive explaining what level a complainant’s evidence must reach for a judge to make such a finding.

Still, PD12J tantalizes us with a few tidbits. For one thing, it makes clear that no fact-finding hearing need be held. On one hand, that’s easy to understand. If A accuses B of domestic abuse and B admits the charge, it’d be a waste of time for the court to hold a hearing. On the other hand, courts don’t like hearings because they take up the court’s time, so if they can get away without one, they’re likely to do just that.

Worse, section 19(d) makes clear that judges are free to make up the rules as they go. Among many other things, they are to decide,

what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse;

You read that right. Individual judges are to have no guidance from senior judges, the law or anything else when it comes to deciding what burden of proof to impose on a complainant before finding that domestic abuse has occurred.  I’m going to guess that violates children’s rights under the European Convention on the Rights of the Child, but that’s nothing more than a guess. I hope someone contests it in court. The idea that any judge can simply pull some quantum of proof out of thin air and decide it’s enough to prove a case, while another judge can use another quantum and yet another judge another is too at odds with due process of law to stand. Or so I believe.

Plus, section 19(g) of the directive states that judges are free to decide

whether oral evidence may be required from third parties and if so, giving directions for the filing of written statements from such third parties;

In other words, the accused may be given no right to cross examine the person who produced the document in question. So, for example, if a social worker fills out a form saying she believes Dad hit Mum, then Dad may have no opportunity to ask her pertinent questions about how she arrived at her opinion. That too looks dicey from a due process of law standpoint.

Finally, it comes as no surprise that the directive is written in scrupulously gender-neutral language. Well, not entirely.

“abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights in England and Wales. It may involve children who are either abandoned with, or separated from, their mother;

Yes, “abandonment,” which is part of the definition of domestic abuse, is specifically defined as something fathers can do to mothers, but mothers can’t do to fathers. Again, I can’t believe that such blatantly sexist nonsense could ever pass muster with the applicable European conventions. For example, according to the European Convention on Human Rights, fathers have the right to family life and relationships with their kids. So this provision, as written, looks to violate that convention as well as the convention on the rights of the child.

Not only that, but in various places, the directive explicitly protects only children and the parent with whom they live. That wording appears in section five, section 19 and others. As essentially everyone in the U.K. knows, children have about a 9:1 chance of living with their mother, so, without a doubt, the directive is meant to protect mothers from fathers’ abuse, but not the other way around.

All in all, it’s worth asking the question “Who wrote this directive?” It seems hard to imagine that lawyers did. The thing is chock full of legally-dubious provisions and anti-male bias and its kitchen-sink “definitions” would embarrass anyone with a degree in law who in any way attempted to write a balanced, gender-neutral document.

My guess is that Women’s Aid wrote the thing, at least in part. Gender feminists have a long track record of antipathy for fathers and that pesky obstacle to the gender feminist agenda, due process of law. PD12J includes both in spades. It is, as I’ve said before, yet another barely-disguised effort to get ever more fathers out of the lives of their children. Left unopposed, it’ll do exactly that.

 

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