PD12J: When the facts don’t fit the narrative

family law, media, news

“Never let the truth get in the way of a good story.

― Mark Twain

It is, I suppose, unarguable that “New guidance on child contact says courts must not allow abusive parents to have contact with their children” makes a rather more eye-catching headline than “New guidance on child contact in cases where abuse alleged or admitted similar to old guidance”. The problem, of course, is that the first headline is at best misleading, and gives readers completely the wrong impression.

The guidance referred to is the new Practice Direction 12J (PD12J), which comes into force today and which sets out what the court is required to do in children cases in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party, or that there is a risk of such abuse. The guidance has attracted quite a lot of media attention, including a piece on the BBC’s Victoria Derbyshire programme last Friday.

When putting the programme together the BBC did the right thing by including a family law expert to explain what PD12J does, in this case barrister and blogger Lucy Reed. Sure enough, Lucy explained that the new version of the practice direction is similar to the old version, and that the problem was not really that there was anything wrong with the old version, but rather that it was not being consistently followed by judges across the country.

That fact, however, did not make it into the BBC’s write up of the programme, which can be found here. Instead, the write up explains how the new guidance will be “lifesaving”, because it will “end a presumption that both parents should be granted access”. The presumption is, of course, the presumption of parental involvement added to section 11 of the Children Act by the Children and Families Act 2014.

There is a rather large point being missed by the media here, either through ignorance or deliberately. I will give the media the benefit of the doubt and say that it is through ignorance. That, however, is no excuse. The media, especially the ‘serious’ media’, should ensure that they know the facts. The missed point is the obvious one that the law is made by parliament, whereas the practice direction was made by the President of the Family Division. It should surely be obvious to all that the President of the Family Division cannot change the law made by parliament. The practice direction does not therefore alter or end the presumption of parental involvement, and to suggest that it does is quite misleading giving, as I’ve said, completely the wrong impression to readers.

So the BBC write up was wrong on at least two levels (no wonder Lucy Reed was so cross about it, as she indicated on Twitter): firstly, in suggesting that the new practice direction was substantially different from the old one and secondly in suggesting that it actually changes the law, when it does not. Sadly, though, none of this comes as any surprise. The narrative is that the law is being changed to stop abusive parents from seeing their children, thereby saving the lives of the children and the parents who care for them. Saying that the law hasn’t actually changed but the President is primarily trying to ensure that the guidance is being followed doesn’t fit in with that narrative.

If even the BBC can be so careless with the facts, what chance the rest of the media? Not much chance, I would say. The simple truth is that if you are in the business of attracting readers to your content, then you will make sure that the content fits a narrative that will attract those readers. That is how it has always been, and how it will always be. We lawyers, like other purveyors of facts, can do our best to point out media ‘errors’ when they are made, but we will only ever be whistling into the wind. Those ‘errors’ will continue to be made, wilfully or not, and any corrections will be after the event, largely unseen by the original readers, and after the damage has been done.

Is all of this important? Well, yes it is, and in fact it is even more important now than it used to be. Misleading a member of the public on the law is obviously of little consequence to them unless they find themselves in a situation where that law is relevant to them. However, even then there would not be too great a problem if they were advised of the correct legal position by a lawyer. Unfortunately, since the abolition of legal aid for most private law family matters all too many are having to go to court without that advice. Instead, they rely upon what they pick up elsewhere, in particular in the media.

Photo by Roger H. Goun under a Creative Commons Attribution License.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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5 comments

rumble - October 2, 2017 at 4:21pm

I must say this is a very informative piece of writing . I however must diversify a little in a statement that
it contains .
‘We lawyers like other purveyors of fact’. . Made me giggle .
Actually in my experience ‘We lawyers’ don’t give a damn about ‘fact’. All they give a damn about is milking the case and client for as much money as possible. I talk not as a bitter party that lost, but a litigant in person , and in other cases , represented by legal aid. ‘The facts’ were merely ignored and
the lawyers continued to represent, regardless of what the facts did show. The guardians continue to
ignore the facts and twist the truth, the barristers continued to represent, without asking for full disclosure or walking away. In a world of re-dress by the Barr association, which really don’t give a damn about ‘Us true full parents and purveyors of fact’ or issuing re-dress for misconduct by barristers with only money as an agenda, it does not matter what 12J Means. It does not matter that the judges take help from corrupt guardians, who choose to ignore the children’s well being and the damage they are pushed to experience over and over . What does 12J mean ? actually very little , as long as a guardian has the ability to take a side and ignore facts. Twist their reports and continue to be so called
‘experts’. the court invites third parties to help them. Help them make decisions, whilst ignoring and twisting facts. I have said this time and time again. Negligence, misfeasance, and contaminated evidence is put forward, and there is no re-dress. If you have evidence the guardian is lying , it needs to be looked into and not pushed aside until cross examination. So you prove their is corruption and ignorance but the judge is happy to carry on using this third party to represent the incident children. The lawyers continue to twist and pat their client on the back . Who suffers? 12J. ? It means nothing until the guardians are gone ! The code of conduct for a barrister might as well be a comic that is thrown away, as child proceedings details are not allowed to be disclosed . Why does no party or no blog actually address contamination, Barr standards, and the fact that the hearings are private ? Just one hurdle after an other . Sorry if offended anybody but in a few months, my ultimate life challenge is to do something to help anybody as less fortunate as I was . The only tool I had was that when given
enough rope, the perpetrator hangs himself. It was always a matter of time. Did I get an apology ? did they think of what the children had gone through ? did they actually all look at the merits of the case ?
HMMM. NO

Seriously - October 2, 2017 at 7:18pm

Rumble – I totally agree with your analysis. Just fresh from family court that “recognises I’ve been very badly treated my appeal upheld , no refund though of my costs ! If I had purchased a faulty product I’d get a refund , if someone had provided poor service you would not expect to pay , so why do courts get away with it costing me thousands in the meantime. Then I’m told that although there is an injustice , but because it’s gone on for a while it would make it difficult to put right and probably cause the children anxiety , so let’s leave them where they are .
Until the government stops using the judiciary / court service as a money making exercise no new PD will make a difference to fairness and truth . It shouldn’t matter that a fact finding hearing might take 3 days .

Mr T - October 2, 2017 at 11:32pm

If the judiciary continues to ignore male victims because of false allegations of domestic abuse (which goes hand in hand and is almost preached by Women’s Aid for their own financial benefit).

Experts in parental alienation is what they need!!! If they do get the right training god help some mothers that go on a lifelong campaign of alienation, usually due to a pathological indoctrination.

Mr T - October 2, 2017 at 11:35pm

Also, coercive control is a slippery slope. All normal men could be wrongly and incorrectly labelled as controlling because of a fundamental attribution error because they’ve been separated from their kids. They absolutely need training on this!

Dr Grumpy - October 3, 2017 at 9:55am

All fine and good but how stringent will be the investigation into the allegations of domestic violence? Will we follow the USA in that all one parent has to do is to make claims of DV to get sole access of the children? Even now unsupported allegations are recorded on the Police National Computer for any public service (usually social workers) to include in their reports and repeat on any occasion they choose fit.
While the bar to obtain legal aid on the basis of DV remains high the bar set for alleged acts of DV remain criminally low and as a result many children and their non-resident parent will suffer.

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