Domestic abuse and child arrangements: a move forward on a long journey

Last week, the Court of Appeal handed down important judgments on domestic abuse and the impact of that abuse, particularly coercive control, on families and a child’s relationship with his or her parents.

In 2019/2020 over 50,000 applications for what are termed ‘private children law’ orders were made to the family court. These are applications made under section 8 of the Children Act 1989 by individuals (where someone seeks an order in respect of a child who is in the care of the local authority it will be considered a ‘public law’ matter.)

In approximately 40% of those private children law applications allegations of domestic abuse were made. The Court of Appeal noted that over 4000 magistrates and family judges hear cases with issues of this nature.

What was the case about?

In Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings) [2021] EWCA Civ 448 the court was concerned with four appeals from orders made in private law Children Act  proceedings, each of which involved allegations of domestic abuse and how the court applied Practice Direction 12J and fact finding hearings.

What is Practice Direction 12J?

Introduced in 2017 to give further guidance to the courts, “The purpose of this Practice Direction is to set out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.”

The court felt that PD12J was ‘fit for purpose’. However, the key question is how courts are implementing it.

What is a fact finding hearing?

In cases concerning arrangements for children, it is very common for factual disputes between the parties to arise. The court must be very careful to assess allegations, which, if true, would impact on the welfare of the child or children concerned.

Where the court is satisfied that the allegations, if true, will impact on the welfare of the child, it will order a separate ‘fact finding’ hearing to consider the evidence about the allegations if it is thought to be necessary and proportionate. There is the potential for earlier enhanced CAFCASS involvement to determine whether it is necessary.

If a fact finding hearing takes place, having considered the evidence the court will make findings in writing. The analysis of factual evidence in proceedings relating to the welfare of children is based on the civil burden of truth, not based on criminal law principles and concepts.

Examples where a fact finding hearing may be necessary might be, but are not limited to, allegations made about:

1. Alcohol or drug abuse;
2. Physical or sexual abuse;
3. Verbal or emotional abuse;
4. A pattern of controlling or coercive behaviour;
5. Repeated non-compliance with previous court orders.

The decision to direct a fact finding hearing is a judicial one. However, in considering whether to direct a fact finding hearing, the court will consider the views of the parties and of CAFCASS.

Although a fact finding hearing may delay the case, and mean that additional time is spent at court (in some cases many additional days with significant legal cost to one or both parties), the principle is that early resolution of whether allegations are found to be true by the court enables the substantive hearing to proceed more quickly, and enables the court to focus on the child’s welfare with greater clarity.

Fact finding hearings will not be ordered in every case, but can be a very useful tool to provide a template for the court in taking into account proven serious allegations which are likely to impact on the welfare of the child.

How to present allegations to the court

The court suggested that where domestic abuse is alleged, parties should describe in short form, via a statement or orally at a preliminary hearing, the experience of being in a relationship with one another. As such, issues should come to the forefront of a case at a much earlier stage.

Where one or both of the parties are asserting that there has been a pattern of controlling or coercive behaviour and a fact find is necessary and proportionate, that assertion should be the primary issue for determination at any fact finding hearing.

The court has supported a move away from Scott Schedules (a table setting out each complaint individually) as they risk overlooking the wider context if there has been a pattern of controlling or coercive behaviour. They felt they were now “a potential barrier to fairness and good process” and it is now time “to move away” from them.

What is domestic abuse?

PD12J defines the following:

Domestic violence 

Includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.

Controlling behaviour 

An act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour 

Means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.”

How might it impact on a child?

In the judgment (paragraph 31) the Court of Appeal stated:

“A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways, for example where the abusive behaviour:

1. Is directed against, or witnessed by, the child;

2. Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;

   -Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child.

3. Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.”

What can we learn from the Court of Appeal decision?

The need for reform 

In giving their judgment, the Court of Appeal did not create new law, and they refrained from giving recommendations for reform.

It is widely acknowledged that the law needs to be reformed, and the court stressed that there are several ongoing reviews of the approach to domestic abuse in private law proceedings dealing with applications for ‘live with’ (residence) or ‘time spent’ (contact) orders made by a parent in relation to their child or children.

These initiatives include a Ministry of Justice report of June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’) and the President of the Family Division’s ‘Private Law Working Group’ report dated 2 April 2020.

The Domestic Abuse Bill is also currently before Parliament and a raft of amendments to the Bill are aimed at providing greater protections for victims and include a new offence of non-fatal strangulation, the extension of the controlling and coercive behaviour offence to include abuse where the perpetrator and victim no longer live together and the revenge porn offence will be widened to cover threats to share intimate images.

In the March 2021 Budget, Chancellor of the Exchequer Rishi Sunak announced that £19 million had been allocated towards domestic abuse programmes as domestic abuse has been highlighted as one of the hidden tragedies of the COVID-19 pandemic, with police recording a sharp increase. Data suggests that experiences of domestic abuse will have intensified during lockdown and victims have faced difficulties in safely seeking support under lockdown conditions.

Inconsistent judicial application 

The court highlights that although judicial training programmes are in place to assist judges in making decisions in these cases, the courts struggle to deal with them, and as such, there is inconsistency in approach and implementation. In some situations, the court has minimised the allegations of abuse made and their impact on the alleged victim and children in support of favouring a continuing relationship with both parents.

Domestic abuse campaigners call for a ‘sea change’ in culture and understanding of the impact that patterns of abuse can have on families.

Legal funding 

Following the substantial legal aid cuts implemented over the last decade or more, limited numbers of participants can secure help with legal funding to bring their cases to the court. Those who may succeed may do so by raising issues of domestic abuse.

It is notable that in this case, all four applicants had the benefit of legal aid, and all four respondents were represented on a pro bono basis, as they did not. As such, there are many cases where abuse might not be assessed fully by a court due to a lack of ability to fund legal costs.

The importance of investigating and reviewing the impact of domestic abuse cannot be criticised, but the procedure for doing so, and expansion in the duration of hearings as a result (and so cost to those who privately fund litigation) plays its part in the imbalance of how some cases are dealt with by the courts.

Summary

The need for continuing reform, both in legal processes and legislation, and judicial application, is clear. The judgment highlights important issues, and will, it is hoped, influence judicial decision-making whilst legal reforms take place in tandem.

Whether an alleged victim, or alleged perpetrator, of domestic abuse, expert legal input at an early stage can be critical to enable families to present their best case in an evolving legal arena.