Yes, the welfare of the child is still paramount

There is always a problem when you approach the discussion of an issue with an agenda, rather than an open mind. Yes, I realise that it is a trite point, but if you have a preconceived angle on a subject then you are unlikely to succeed in creating an unbiased critique of that subject.

On Friday Paul Apreda, the National Manager of the Welsh charity FNF Both Parents Matter Cymru (the initials ‘FNF’ refer to the fathers’ rights group Families Need Fathers), wrote here about Mr Justice Cobb’s review of Practice Direction 12J. Practice Direction 12J (which I shall hereafter refer to as ‘PD 12J’) provides courts with guidance as to what they should do in any case concerning arrangements for a child in which there is an issue of domestic violence or abuse.

Now, before I go any further I should say that it was extremely kind of Paul to call me “everyone’s favourite family law blogger”, but I am far too modest to accept such an accolade. Yes, I did scratch together a few vaguely lucid thoughts about Mr Justice Cobb’s proposals in this post but that, at least until now, was the sum of my contribution to the debate about PD 12J.

Paul argues in his post that Mr Justice Cobb’s proposed changes to PD 12J would amount to a coup d’état on the part of the judiciary, circumventing the will of Parliament contained in section 1(2A) of the Children Act 1989. Section 1(2A) states that when considering arrangements for a child the court should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare. Mr Justice Cobb proposes to revise the Practice Direction to provide that the presumption should be displaced where the involvement of a parent in a child’s life would place the child or other parent at risk of suffering harm from abuse.

Paul continues:

“Clearly it is insufficient to be able to prove that the involvement of the ‘other parent’ would not further the welfare of the child, as [section 1(2A)] requires. Merely the risk of the mother (sorry, ‘controlling parent’) suffering some form of domestic abuse is sufficient to overturn the provisions of statute. Either the ‘best interests of the child’ are paramount or they aren’t. Which one is it?”

I’m not entirely certain that the first two sentences of that follow one another, but we’ll leave that to one side. Paul is suggesting, as he makes a little clearer at the end of his post, that the ‘paramountcy principle’ (i.e. that when a court determines any question with respect to the upbringing of a child the child’s welfare shall be the court’s paramount consideration) may become subordinate to the ‘risk of harm’ to what he calls the ‘controlling parent’.

Of course Mr Justice Cobb is proposing no such thing. The risk of harm is merely an element of the issue of the child’s welfare, as is made clear by section 1(3)(e) of the Children Act, which requires the court, when considering whether to make an order in relation to a child, to have regard in particular to any harm which he/she has suffered or is at risk of suffering. Harm to the parent looking after the child is tantamount to harm to the child, as the child will obviously suffer if that parent is harmed or is at risk of harm.

There is no ‘either/or’ here: the welfare of the child is paramount, and the risk of harm is just one of the matters to which the court must have regard when considering the child’s welfare. As was always the case, if the risk of harm is considered to be sufficiently serious, then that one factor alone can tip the balance against the parent causing the risk. As I said previously, all that Mr Justice Cobb is suggesting is a change of emphasis, to ensure that the shared parenting presumption in section 1(2A) doesn’t trump (excuse that word) the issue of serious risk, as was clearly Parliament’s intention when it enacted section 1(2A). In other words, Mr Justice Cobb is saying precisely that the child’s welfare is paramount – after all, it would not be sensible for the court to order that the child have contact with a parent, when that contact exposes the child to harm.

And remember of course that the issue of risk should have been thoroughly tested by the court, before it comes to a conclusion that it is so serious as to determine what is best for the welfare of the child. The court will not, as Paul seems to suggest, merely accept any allegation by an alleged victim of domestic abuse without testing it, and giving the alleged perpetrator a full opportunity to put his or her case. Men (or, for that matter, women) are not ‘presumed’ to be perpetrators of abuse, as Paul states, without evidence to that effect.

In short, Mr Justice Cobb’s proposal does nothing to undermine the position of fathers, or mothers. The paramountcy principle is still intact, and it will remain so even if the proposed changes to PD 12J are implemented.

If you want to read Mr Justice Cobb’s report, you can find it here.