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Landmark Court of Appeal decision on domestic abuse asks judges to reassess the implementation of laws relating to domestic abuse

Posted on 30 March 2021

After a year which saw victims of domestic abuse subjected to unprecedented risk during lockdown, the Court of Appeal today handed down judgment in Re H-N and Others (children) judgment. In particular, this judgment provides necessary guidance on how the Family Court should deal with children disputes involving allegations of domestic abuse. It is estimated that over 40% of private law children cases involve allegations of domestic abuse.

This guidance is long overdue. The last significant treatment by the Court of Appeal of this subject was over 20 years ago in the case of Re L & Ors [2000] 2 FLR 333 CA, in which the Court of Appeal issued guidance that there needed to be heightened awareness of the existence of, and consequences for, children exposed to domestic violence between parents and other partners.

In the last 20 years, our understanding of domestic abuse has evolved. It is widely understood that abuse can extend beyond physical violence and includes controlling and coercive behaviour, and psychological, financial and emotional abuse.

In May 2008, Practice Direction 12J was introduced which set out various categories of abuse. It established a framework for courts and practitioners to follow where allegations of domestic abuse are raised, including considering whether a fact-finding hearing is necessary to establish the factual background of the case. It is mandatory for the court to consider PD12J in every case where a child arrangements order is sought.

However, implementation of PD12J has been criticised, including an apparent reluctance by courts to engage in fact-finding exercises in circumstances where there is no obvious physical violence and/or the allegations were from a long time ago. Many judges also ask complainants to limit their allegations to a Scott Schedule –a table detailing a small number of serious incidents within a set time frame, reflecting a limited understanding of the nature of some types of abuse.

The potential limitations of such an approach were acknowledged in a decision by Hayden J in F v M [2021] EWFC 4 in which he emphasised the "pattern" nature of coercive control, the impact of which must be assessed cumulatively and rarely in isolation.

In June 2020, the Harm Panel Report published by the Ministry of Justice raised concerns that children and parents who have been subjected to domestic abuse are being failed by the court system.

It is against this background that many in the legal profession have felt that new judicial guidance was necessary. The Court of Appeal decision published today promised to provide just that.

Re H-N and Others

This landmark decision concerned four conjoined appeals all of which involved women who had raised issues of domestic abuse in the context of private children proceedings. In addition to the parties, the court invited a range of organisations to intervene to offer their views on the wider issues of domestic abuse, how it is dealt with by the Family Court and the guidance the Court of Appeal might provide. These included Cafcass, the Association of Lawyers for Children, Families Need Fathers and a group of women's organisations (Rights of Women, Women’s Aid, Rape Crisis and Welsh Women’s Aid).

1) Whether there should be a finding of fact hearing

Emphasising the need to have regard for procedural proportionality both before and during any fact-finding process, the court suggested a four-stage process with reference to PD12J to decide whether a fact-finding hearing is necessary:

  1. In the first stage, the court should examine the nature of the allegations and extent to which it is likely to be relevant in deciding whether to make a child arrangements order and in what terms.
  2. When making its decision, the court should consider the purpose of a fact-finding hearing, namely to provide a basis of assessment of risk and the impact of the alleged abuse on the child.
  3. The court should then contemplate whether there is other evidence that provides a sufficient factual basis to proceed and the relevance to the issue before the court if the allegations are proved.
  4. Finally, the court should consider whether a fact-finding hearing is necessary and proportionate bearing in mind the overriding objective.

The court also condoned the suggestion made by Cafcass that the system could benefit from more substantive social worker input prior to the court determining whether a fact-finding hearing is necessary, including the possibility of meeting the child. The court stated this suggestion should be given "close consideration" by those reviewing PD12J so that a decision can be made on a more informed and child-centred basis.

2) The challenges presented by Scott Schedules as a means of pleading a case

The court agreed that Scott Schedules are not always fit-for-purpose for two related reasons: firstly, they may prevent the court from focusing on the wider context where there has been a pattern of coercive and controlling behaviour; secondly, by limiting the allegations, there is a risk the court is provided with a false portrayal of the parties' relationship.

The court concluded that "serious thought" was needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case a respondent has to answer is clear whilst not distorting the focus. Several suggestions had been made during the hearing, including a threshold document, formal pleadings and a narrative statement. The court, however, concluded that this was a matter to be developed by others into new guidance (namely the Private Law Working Group and the group implementing the Harm Report).

3) If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?

The court confirmed that it is wrong to view controlling and coercive incidents between adults when they were in a relationship as "in the past" after separation and not therefore relevant to establishing the risk of harm as the abuse can manifest in other (albeit more subtle) ways. However, they acknowledged that the important question was how the court should approach these issues without increasing the scale and length of hearings where court resources are already so stretched.

Whilst they concluded that this question would need to be considered by those responsible for implementing the Harm Report and the Domestic Abuse Bill, and revising PD12J, they did offer some pointers:

  1. Fact-finding hearings should only be used to address domestic abuse allegations which are relevant to the determination of child welfare issues before the court;
  2. Such hearings are necessary for specific purposes, namely: providing a factual basis for a welfare report, providing a basis for an accurate assessment of risk, considering any welfare-based order regarding child arrangements, or considering the need for a domestic abuse-related activity. Only those allegations which assist with this should be listed for determination; and
  3. In every case, both parents should describe in short terms the overall experience of their relationship.

The court also stated that where a pattern of coercive and/or controlling behaviour is asserted, other more specific factual allegations should not be determined unless they are so serious as to justify determination irrespective of the alleged pattern of behaviour.  

4) The relevance of criminal law concepts

The court confirmed that Family courts should avoid analysing behaviour by direct application of criminal law to determine whether an allegation is proved or not.

What will this mean in reality?

This judgment provides essential recognition of the varied nature of domestic abuse and the need to focus on patterns of behaviour. It emphasises the damage which coercive and controlling behaviour can cause to children living in a household in which it is a feature of the adult dynamics. It also acknowledges the issues with the current system and the need for reform. 

The guidance on how to determine whether a fact-finding hearing is necessary will be helpful to judges and practitioners alike. The suggestions for new guidance about how the court should approach fact-finding hearings will undoubtedly assist those tasked with this job.

However, perhaps what is most notable about this judgment is what is missing. The court does not address the presumption of parental involvement (which the Ministry of Justice is in the process of reviewing); there is no guidance on what should replace Scott schedules (although it does proffer suggestions); and it does not provide a comprehensive proposal as to how domestic abuse allegations should be approached in a fact-finding hearing.

The judgment goes to great lengths to expressly limit its own scope and in some respects it feels as though the buck is being passed, in some cases rightly where Parliament is already considering the issues in question. The judgment makes clear that the responsibility for providing comprehensive guidance aimed at identifying and resolving the difficulties that exist lies with the various private law initiatives that are currently underway, including the implementation of the Harm Panel Report, the Domestic Abuse Bill, and the Private Law Working Group.

A judgment of this type is necessary and helpful to practitioners, however it perhaps lacks the hard-hitting and far-reaching impact we had hoped for.

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