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March 5, 2021

The CoA is being asked to consider how the Family Court deals with allegations of domestic abuse, rape and controlling and coercive behaviour in a highly significant case that is likely to result in new guidance being issued to Judges.

The appeal is before Lord Justice Macfarlane (President of the Family Division), Lady Justice King (a judge with a Family Law background) and Lord Justice Holroyde (a Judge with a Criminal Law background).

The appeal is in fact four separate appeals, brought together by the CoA Judges due to the similar issues they raise and the relevance to the court’s fundamental approach to dealing with domestic abuse and its impact on the welfare of the child. All four cases were appeals brought by mothers who had raised allegations of rape and domestic abuse.

Wider principles

The cases raise wider issues about how a Judge should deal with allegations of this type. As a result, the CoA invited a range of organisations to intervene in the case to offer their views to assist on the wider issues of principle and the guidance the CoA will give at the end of the case. The court, in addition to the main parties, heard from CAFCASS, the Association of Lawyers for Children, Families NEED Fathers and Women’s Aid, such is the anticipated scope of the guidance.

Five issues of principle have been identified by Lady Justice King:

  1. How and when fact-find hearings should take place.
  2. The treatment in the family courts of marital or partnership rape and in particular whether the family court is bound to analyse factual issues in the context of the criminal law.
  3. The treatment of coercive and controlling behaviour in the family courts.
  4. How Practice Direction 12 J is to be applied.
  5. Following a fact-finding hearing, the proper approach in private law proceedings where; there have been findings of domestic abuse or where allegations have been dismissed.

The current position

The CoA hasn’t considered this topic for over 20 years: the last case was Re L [2000] EWCA Civ 194.

This case was heard at a time when our views of domestic abusive were very different and the emphasis was upon incidents of physical violence.

As a society we have progressed significantly in our understanding of such issues; of how individuals react to rape, not necessarily by screaming and fighting their abuser followed by an immediate call to the police but, more likely, by an inability to react due to fear and fear of the consequences of doing so followed by a, sometimes, significant passage of time before feeling able to report the incident. Also, to more subtle forms of behaviour everyday belittling, isolation and financial control that constitutes controlling and coercive behaviour, causing emotional harm to both parent and child.

Practice Direction 12J was issued as a result of Re L, setting out what the Family Court is required to do in cases where it is alleged or admitted that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.

The purpose of PD12J is to protect children and adults from the consequences of harmful behaviour.

The application of PD12J is mandatory. In Re A (A Child) [2015] EWCA Civ 486, MacFarlane LJ referred to the “requirement’ of the court to consider and follow PD12J in a case involving allegations of domestic abuse:

“any court dealing with a case where domestic abuse is established is required to afford appropriate weight to such findings in accordance with the Re L decision and to conduct a risk assessment in accordance with PD12J, paras 35-37.”

Often is the case that a Judge considering this requirement will ask themselves and counsel what relevance do these allegations have on the case moving forwards? Is there sufficient evidence upon which a fact could be found to the requisite standard? And what effect will it have on future decisions regarding contact in any event given the presumption of parental involvement?

This question of relevance was considered in V (A Child) EWCA Civ 274 with the emphasis on whether a finding would be relevant to the welfare decision that has to be made. MacFarlane LJ said:

“There is a danger that in any case where the label of ‘domestic abuse’ is used there is a semi-automatic reaction generated in the minds of CAFCASS officers and other professionals in the court proceedings to think that inevitably all such allegations need to be thoroughly investigated no matter how old or disconnected to the child they may be, and more worryingly, that all such allegations, if found proved, indicate that there should be no direct contact between the abusive parent and the child.”

“the court must ascertain at the earliest opportunity whether domestic violence or abuse is raised as an issue of risk of harm to the child which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically on the making of any child arrangements order.”

The use of Scott Schedules is likely to feature heavily in this awaited Judgment. There has been much discussion on their usefulness in particular when dealing with cases where it is imperative to stand back from the schedule and consider the whole picture. A series of, on the face of it, minor incidents of abuse can have a cumulative effect that constitutes a controlling and coercive relationship.

Hayden J gave his recent views in F v M [2021] EWFC 4, commenting on the limitations of a Scott Schedule but leaving them to the discretion of the Judge.

“Whilst I entirely see the advantage of carefully marshalling the evidence and honing down the allegations, I can see that what I have referred to as a particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule… an intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of a pattern of behaviour.”

The most effective schedules must surely be those which use it as a mechanism to nail down an incident that is capable of illustrating a wider pattern of behaviour. The content of the schedule should therefore prioritise those allegations where there is some evidence or where the victim’s recollection is the greatest. The inclusion of incidents over a period of time to evidence a sustained pattern of abuse or alternatively close in time to evidence an escalation of abusive behaviour.

The fact that there is a Criminal Judge participating would indicate a desire to consider the assistance that the criminal system can bring to the courts views on evidence, its credibility, consistency and the level of weight to be attached to evidence where there has been a delay in reporting incidents.

The CoA Judgment in the case of JH & MF [2020] EWHC 86 (FAM) rebuked HHJ Tolston for his “outdated” views on sexual assault and highlighted the need for Judges training. It is anticipated that this issue will also feature.

Once the Judgment has been received and the guidance analysed, might it be a good time to reconsider whether it is really fair and equitable for the alleged perpetrators of domestic abuse to be continued to be denied access to legal advice, as a result of the restrictions on Legal Aid, that would assist them in defending themselves and navigating through this hugely important and complex area of law?

It is worth noting that those representing the fathers in this appeal are providing their assistance free of charge. Thank goodness for them and what a damning indictment on the current system!

Watch this space for an update on the highly anticipated Judgment.

Clare Fear