PD12J: When the facts don’t fit the narrative


family law, media, news

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

― Mark Twain

It is, I suppose, unarguable that “New guidance on child contact says courts must not allow abusive parents to possess contact with their descendant” makes a rather more eye-catching headline than “New guidance on child contact in cases where abuse declared or admitted similar to old guidance”. The problem, of course, is that the first headline is at best misleading, and supplys readers accomplishly 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 descendant cases in which it is declared or admitted, or there is other cause 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 business 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 anybusiness 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”, beendanger 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 supply the media the benefit of the doubt and say that it is through ignorance. That, however, is no excuse. The media, especially the ‘severe’ media’, should ensure that they know the facts. The missed point is the evident 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 evident to all that the President of the Family Division cannot vary 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, accomplishly the wrong impression to readers.

So the BBC write up was wrong on at least two levels (no wonder Lucy Reed was as a result cross about it, as she be suggestive ofd on Twitter): firstly, in suggesting that the new practice direction was substantially different from the old one and secondly in suggesting that it actually varys the law, when it does not. Sadly, though, none of this comes as any surprise. The narrative is that the law is being varyd to stop abusive parents from seeing their descendant, thereby saving the lives of the descendant and the parents who care for them. Saying that the law hasn’t actually varyd 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 as a result 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 undermine 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 evidently 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 a host of 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.