All about DP12

Written by Aspen Family Law, June 2025

Very often I answer questions that involve explaining the importance and use of PD12J. Below I’ve written an explanation and guide, I hope you will find it useful.

Adherence of and, correct application of PD12J is crucial for fair process and safety. The Courts are expected to follow PD12J, with any departure from its principles requiring clear explanation. Failure to do so can lead to appeals based on procedural irregularities and other grounds.

All about PD12J.

History of domestic abuse? Post separation abuse? Concerns about the child’s safety and overall welfare? This is where Practice Direction 12J (PD12J) comes in!

PD12J is part of the Family Procedure Rules, which are the guidelines that family courts and its users in England and Wales must follow. Its main purpose is to ensure that the court carefully considers any allegations or evidence of domestic abuse when making decisions about child arrangements and contact orders. This means orders about where a child lives, who they spend time with, and how that contact can take place. 

CAFCAS and PD12J

Most recently, CAFCAS issued new guidance on their domestic abuse policy 2024 (updated). 

A nightmare or a blessing? 

It depends what side of the fence you’re on. I’ve seen good non-resident parents refused contact, despite being fit & safe to care for the child and the new policy was the focal point for this decision. Equally, a very recent case saw the heavy reduction in contact to no contact pending investigations and work of an abusive parent, that prior to the guidance changes we may have seen very different recommendations from CAFCASS.

Back to 12J… here’s a breakdown of what PD12J means in simple terms:

* Prioritising Safety: The absolute top priority for the court is the safety and well-being of the child, and the parent who has experienced abuse. Any arrangements made must not expose them to further harm OR increase risk of harm. 

* Broad Definition of Abuse: "Domestic abuse" isn't just about physical violence. PD12J defines it broadly to include:

    * Controlling behaviour: This is about making someone dependent by isolating them, exploiting them, or regulating their daily life.

    * Coercive behaviour: This involves a pattern of threats, humiliation, intimidation, or other abuse used to harm, punish, or frighten someone.

    * It can also include psychological, sexual, financial, or emotional abuse.

* Mandatory Consideration: If there's an allegation or evidence of domestic abuse, the court MUST consider it. It's not optional.

* Risk Assessment: The court has to thoroughly assess the potential risks to the child and the non-abusive parent. This involves looking at the nature of the abuse, its impact, and the likelihood of it continuing.

* Fact-Finding Hearings: If there are serious disputes about whether abuse happened, the court might hold a "fact-finding hearing." This is a legal trial where the judge hears evidence to decide what actually happened. The court should only make interim (temporary) contact orders before a fact-finding hearing if it's satisfied that doing so wouldn't expose the child or the other parent to an unmanageable risk of harm.

* Special Measures: PD12J also makes sure that survivors of domestic abuse can get "special measures" in court to help them give their best evidence. 

This could include:

    * Separate waiting rooms.

    * Screens in the courtroom so you don't have to see the abuser.

    * Being allowed to give evidence remotely.

* No Cross-Examination by Abusers or alleged abusers: Importantly, the Domestic Abuse Act 2021, which ties into PD12J, now generally prevents perpetrators of abuse from cross-examining their victims in family court (and vice versa). This is a crucial protection so that the abuser cannot derail the other person emotionally or via intimidation.

* Recording Findings: If the court finds that domestic abuse has occurred, these findings must be clearly recorded in the court order or an attached document known as a Judgement.

How is PD12J Applied? 

*Ensuring Safety Over "Contact at All Costs":

In many cases involving domestic abuse, the court's primary concern is ensuring that any contact arrangements do not expose the child or the non-abusive parent to an "unmanageable risk of harm." This means the court won't automatically order direct contact if there's a significant risk.

In various judgments, judges have emphasised that where findings of domestic abuse have been made, there is a presumption against making interim (temporary) contact orders if there's a dispute about the abuse, unless the court is confident the order wouldn't expose the child or parent to an unmanageable risk. This often leads to careful consideration of supervised contact or indirect contact (like letters or phone calls) as a first step, or even no contact, until a full assessment of risk can be made.

Applying PD12J and case examples;

* Case Example (F v M [2021] EWFC 4): This case highlights how the court deals with coercive and controlling behaviour. In this instance, the father's behaviour was found to be coercive and controlling, including forcing the mother to make phone calls against her will and isolating her. The judge explicitly linked this behaviour to the definition of domestic abuse under PD12J and considered its impact on the child and mother when making arrangements. The case demonstrates that the court looks beyond just physical acts to the broader pattern of abuse.

* Case Example (M v S [2023] EWFC B57): In this case, serious allegations of domestic abuse, including physical abuse and rape, were found to have occurred at a fact-finding hearing. 

However, the subsequent Child Arrangements Order made no mention of PD12J or any measures to aid the mother's participation or safety. The mother appealed, arguing that the court's failure to consider or apply PD12J was a serious procedural irregularity. This case underscores that simply making findings of abuse isn't enough; the court must then actively apply the principles of PD12J to ensure arrangements protect the victims.

*Considering Psychological Impact and Relocation:

PD12J also guides decisions where domestic abuse has a significant psychological impact, especially in cases involving potential relocation.

* Case (A & I (Children: Appeal: Relocation & Joint Lives-With Orders: Fresh Evidence) [2024] EWHC 1824 (Fam)): In this recent High Court case, the mother appealed a decision regarding shared care and relocation, arguing the initial judgment didn't sufficiently consider the impact of the father's domestic abuse, particularly its psychological effects. The appeal court found that the lower court had given undue weight to the mother's perceived resilience without fully appreciating the profound psychological impact of the abuse. This case highlights that PD12J requires courts to give appropriate weight not just to the physical aspects of abuse, but also to the psychological harm and its long-term effects on both the child and the primary carer when making crucial decisions like relocation or shared care.

In Summary

Practice Direction 12J is a vital safeguard in the family court, ensuring that domestic abuse is taken seriously and that decisions about children are made with their safety and well-being as the absolute priority. If you are involved in a family law case where domestic abuse is a factor, it's essential to understand your rights under PD12J and ensure the court properly applies its principle.