Ben Woolstencroft looks at the Domestic Abuse Perpetrator Programmes and M v F [2024] EWFC 234 (B)
- The impact of a court making findings of domestic abuse against a client seeking a child arrangements order can be catastrophic. That impact is exacerbated where those found to have been perpetrators of domestic abuse must now seek to demonstrate insight into their past behaviours in a murky world where Cafcass’ Domestic Abuse Perpetrator Programme (DAPP) has been decommissioned since July 2022. Parents found to have perpetrated abuse find themselves at a crossroads with two unfavourable routes forward. On one side, Cafcass will no longer refer them to a DAPP. On the other, Cafcass may recommend a Respect-accredited DAPP, but such DAPPs do not accept self-referrals until 12 months after family proceedings have concluded. However, there may be light at the end of the tunnel following the decision in M v F [2024] EWFC 234 (B).
The legal background
- The law underpins the importance of an abusive parent addressing past behaviours. Under paragraph 37 of Practice Direction (PD) 12J, one factor the court should consider in determining whether there should be contact between a child and a parent found to have been a perpetrator of domestic abuse is “the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse”. This is echoed in the well-known words of Dame Butler-Sloss, as she then was, in Re L (Contact: Domestic Violence) [2000] 4 All ER 609:
“In cases of serious domestic violence, the ability of the offending parent to recognise his or her past conduct, to be aware of the need for change and to make genuine efforts to do so, will be likely to be an important consideration”.
- The court’s power to direct a DAPP derives from the power to make an ‘activity direction’ under sections 11A – 11B of the Children Act 1989. Under s.11A(9), the court applies a simple welfare test: is the direction in the child’s best interests? Paragraph 34 of PD12J provides guidance on activity directions as follows:
“34. … Any intervention directed pursuant to [section 11A and 11B Children Act 1989] should be one commissioned and approved by Cafcass. It is acknowledged that acceptance on a domestic abuse intervention is subject to a suitability assessment by the service provider, and that completion of a domestic abuse intervention will take time in order to achieve the aim of risk-reduction for the long-term benefit of the child and the parent with whom the child is living” (emphasis added).
Cafcass policy and RESPECT accreditation
- Since the discontinuation of Cafcass referrals for DAPPs in July 2022, Cafcass have published a recent Domestic Abuse Practice Policy on 9 October 2024. Paragraph 20 of that policy sets out the following:
“When assessing those who have been domestically abusive, practitioners must assess the life-long harm caused by domestic abuse and not recommend that a child spends time with a parent who has inflicted this harm on a child and their other parent, without clear evidence that the perpetrator:
a) Recognises the harm their behaviour has caused their victims.
b) Has taken responsibility for the harm they have caused.
c) Has taken action to sustain change in their attitude and to stop their harmful behaviour, which has been demonstrated over time, and
d) These changes have resulted in an assessment that the risk of them perpetrating that behaviour has been removed to the point of enabling a recommendation that family time is now in the child’s best interests.”
- On the issue of self-referrals for DAPPs, the Cafcass Domestic Abuse Practice Guidance “A structured approach to risk assessment of domestic abuse in the family court” says as follows:
“Whilst some parents may be able to fund their own DAPP, Cafcass cannot recommend or endorse this and it is a matter for the court whether to direct self-funded attendance.”
- The tendency now, it appears, is for Cafcass to recommend that abusive parents must undertake a DAPP accredited by the charity “Respect”. These courses typically take 6-9 months but can be as long as 24 months. Crucially, as set out in Standard B5 of the 4th edition of “The Respect Standard”:
“Where children are the subject of Private Law proceedings, or have been in the last 12 months, services must not offer a behaviour-change intervention for parents.”
- The Cafcass Domestic Abuse Practice Guidance addresses this as follows:
“If a court considers a Respect accredited programme, FCAs will need to remind courts that Respect’s accreditation standards state “where children are the subject of Private Law proceedings, or have been in the last 12 months, services must not offer a behaviour-change intervention for parents” (standard B5), and that Respect accredited programmes will therefore not consider the referral.”
The Issue
- The difficulty arises in the clash between paragraph 34 of PD12J under which the intervention set out in an activity direction made by the court “should be one commissioned and approved by Cafcass” and the Cafcass policy to recommend Respect-accredited DAPPs which can only be undertaken 12 months after the conclusion of the proceedings.
- If such a recommendation is made, it can be ruinous for a parent seeking a final order which provides for some semblance of a relationship with their child. On a strict following of paragraph 34 of PD12J, the parent is forced to argue for a final order which provides for some form of stepped arrangement looking far into the future on the uncertain basis that ‘they will definitely show insight after completing the programme’ or to otherwise accept the consequences of an order which will inevitably mean they have to reapply again in future to restore meaningful contact after the course is completed.
A solution?
- A possible solution is found in the case of M v F [2024] EWFC 234 (B). Here, HHJ Owens considered a case in which there had been “serious findings of domestic abuse” (§13), where the father had “subjected M and [the child] to serious and sustained domestic abuse” (§25) and the father had an “extreme resistance to accepting [the court’s findings]” (§28). The Cafcass recommendation was against all direct contact, including supervised contact (§27) and it was recommended that there be a s.91(14) order until the father completed a 26-week Respect-accredited DAPP post-proceedings.
- In making a s.91(14) order, HHJ Owens held at §30:
“I accept the evidence of Ms Jones that F would need to show that he has successfully completed an appropriate DAPP course to be able to apply if a section 91(14) order is made. Because he does not accept the findings, or that he did anything wrong, and has demonstrated absolutely no capacity to change in the evidence before me, it is not possible for me to fix a timescale on when it is likely that F may have done the necessary work and the risk from him would have reduced. The order will therefore have to be an indefinite order, to last until F is able to evidence that he has successfully complete a minimum 26-week RESPECT accredited DAPP. To evidence this, he would need to provide a certificate of completion from an accredited course provider, as well as a report completed by the course provider covering both the midway and end point of the course. If he is unable to source a RESPECT accredited DAPP but completes a course that he believes is equivalent, he will need to produce independent evidence from the course provider to confirm that the elements of the course are equivalent to the RESPECT accredited course modules and that the course was of a minimum length of 26 weeks or six months.” (emphasis added)
- She went on at §38 to conclude as follows:
“I will make a section 91(14) order preventing F from applying for any orders under the Children Act 1989 in connection with A, including enforcement, and that order will last indefinitely or until further order. To make an application for permission to apply while this section 91(14) order is in force, F must complete the required application forms and submit documentary evidence in support, which must be a certificate of successful completion of a 26 week minimum RESPECT accredited Domestic Abuse Perpetrator Programme, or independent documentary evidence to show that he has completed a course that is of an equivalent length and content, and he must also submit written reports from the mid-way and end points of the course.” (emphasis added)
- There is therefore some hope for those parents who find themselves in the sticky situation of a Cafcass recommendation for limited contact until the completion of a Respect-accredited DAPP far into the future. Albeit in this case the domestic abuse was of such severity that a S.91(14) order was made, M v F provides a loose interpretation of the guidance in paragraph 34 of PD12J that intervention by way of a DAPP “should be one commissioned and approved by Cafcass”. It makes clear that whilst Respect accreditation is a recognised standard, other programmes may also be considered appropriate depending on the specific circumstances of the case. The key consideration is whether a proposed programme is sufficient to address an individual’s behaviour and reduce the risk of further abuse. This may open the door to parents being able to undertake DAPPs during the course of proceedings or shortly after they have ended, bettering their chances for meaningful child arrangements by the time it comes to a final court order.
Ben Woolstencroft
2025
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