Domestic abuse fact findings in private proceedings – A roadmap through Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448

You may recall that Clare Fear wrote about a highly anticipated Judgment from the Court of Appeal on the issue of how the family court deals with domestic abuse in private proceedings. The Judgment was released yesterday morning; this article focusses on the guidance given – rather than the four appeals – with reference to key passages and excerpts.

Roadmap:

Paragraphs 3-7 set out the statistics of domestic abuse in private child cases and the reality of how the burden of proof operates in relation to such evidence.
Paragraphs 8-13 explore PD12J and the impact on legal aid, which is further explored in the context of the current appeals in Paragraphs 14-18.
Paragraphs 19 – 28 outline the history and current definition of domestic violence and Paragraphs 29 – 34 expand the meaning of ‘coercive and/or controlling behaviour’ and ‘patterns of behaviour’.
Paragraphs 35 – 40 deal with when to have a fact-finding hearing.
Paragraphs 41 – 49 look at the use of Scott Schedules in these types of proceedings.
Paragraphs 50 – 59 explore the approach to controlling and coercive behaviour.
Paragraphs 60 – 74 set out the relevance of criminal concepts in private family proceedings
Paragraphs 75 – 78 deal with appeals in fact-finding hearings
Paragraphs 78 – 225 give Judgment on the four appeals.

It was accepted by the Court of Appeal that PD12J remains fit for the purpose of recognising all forms of domestic abuse and how to approach such allegations in private law proceedings. However, difficulties arise in the interpretation and implementation of PD12J. To that end the Court of Appeal has given specific guidance on the following issues:

• How to decide whether a fact-finding should take place;
• Whether Scott Schedules should continue to be used;
• What the approach to controlling and coercive behaviour should be;
• What relevance criminal law concepts should have in private family proceedings.

PD12J

The recent Judgment of Hayden J in F v M [2021] EWFC was endorsed by parties in these appeals and the Court of Appeal found those endorsements to be fully justified, citing in particular:

“The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part. In the Family Court, that expression is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.” (Paragraph 29)

The Court of Appeal found the Judgment in F v M to be:

“[of] value both because of the illustration that its facts provide of what is meant by coercive and controlling behaviour, but also because of the valuable exercise that the judge has undertaken in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour” (Paragraph 30)

The Court of Appeal was therefore satisfied that PD12J does recognise that a pattern of coercive and/or controlling behaviour can be as abusive as a single factual incident and that PD12J continues to be good guidance on how to determine when a fact-finding is necessary.

The need and the scope of any fact-finding hearing

In Paragraphs 35 and 36, the Court of Appeal made it clear that any court will carefully look at the totality of PD12J and remind themselves of the need to consider necessity, proportionality and the overriding objective.

Nevertheless, in Paragraph 37 they consider that the proper approach to deciding if a fact-finding is necessary is:

1. The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
2. In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
3. Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
4. Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.

The Court of Appeal looked favourably Cafcass’ offer that there ought to be Cafcass involvement before determination of whether a fact-finding is necessary since in some cases early social work assessment could lead to a conclusion that a fact-finding hearing is not necessary and that some other form of intervention would assist (Paragraphs 38-40).

Scott Schedules

In this appeal, all 12 oral submissions stated that Scott Schedules were no longer useful and were now “a potential barrier to fairness and good process, rather than an aid” (Paragraph 43). There are two related concerns about Scott Schedules: first, that the court needs to focus on the wider context of a pattern of controlling and coercive behaviour because this cumulative impact on victims is not identified when one only considers isolated incidents; and second, that parties are often required to ‘limit’ their allegations, which gives a false portrayal of the relationship. In Paragraph 47 The Harm Panel is referenced as expressing a similar view:

“reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse’ (Chapter 5.4)”.

The Court of Appeal was clear that whilst the courts need to move away from using Scott Schedules, but that

“In practice that work is likely, in the first instance, to be done through the Private Law Working Group together with The Harm Panel’s implementation group whose final recommendations may in turn lead to changes to the FPR or in the issuing of fresh guidance through the medium of a Practice Direction” (Paragraph 49).

The anonymised skeleton arguments from this appeal are to be given for consideration in upcoming reviews. Watch this space.

Approach to controlling and coercive behaviour

The Court of Appeal was confident that the modern approach to domestic abuse is well understood by Judges and Magistrates in the Family Court. Nevertheless, the Court of Appeal is understandably concerned that if courts have to consider whether there was a pattern of controlling and coercive behaviour and determine specific allegations, it will take courts longer to get through cases. With the current backlog – exacerbated by COVID-19 – the courts are mindful of the pressures on all involved.

How can the courts evaluate if there is a pattern of controlling or coercive behaviour without increasing the length of private law proceedings?

• It is the responsibility of each individual Judge to set a proportionate timetable and maintain control of the court process (Paragraph 56)
• The Court of Appeal expects that where an alleged pattern of controlling or coercive behaviour is to be determined, and the court makes that issue the primary focus, the need to determine date-specific factual allegations will cease to be ‘necessary’ (Paragraph 56)
• The matter needs to be considered by others involved in working through the implications of the MOJ Harm Panel report, in implementing the Domestic Abuse Act and in any subsequent revision of revising PD12J as part of those two processes and the Court of Appeal offers the following ‘pointers’ at Paragraph 58
  1. PD12J is only for determining domestic violence in the context of contact orders and does not a free-standing jurisdiction to determine abuse allegations not relevant to the issues before the court;
  2. Paragraph 16 of PD12J is clear as to when a fact-finding hearing is needed to provide or consider a report, assessment or order it is deemed to ‘necessary;
  3. Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be determined;
  4. In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in that relationship.

• Where a parent asserts that a pattern of coercive and/or controlling behaviour existed that assertion should be the primary issue for determination at the fact-finding hearing. Any other factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour unless the allegation is so serious by itself (e.g. rape) (Paragraph 59).

Relevance of criminal law concepts

The Court of Appeal were clear that this matter is beyond the scope of this Judgment and are to be considered elsewhere. Nevertheless, they maintained that the correct position was outlined in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198 where Gloster, McFarlane and Hickinbottom LJJ, held that it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts (Paragraph 62).

Paragraph 71 was clear that:

“The Family court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of ‘rape’, ‘murder’, ‘manslaughter’ or other serious crimes. Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context.”

That does not mean, however, that parties cannot use the word rape in the usual manner of describing non-consensual penetrative sex, but a Family Judge has not proved an offence to the criminal standard and using familiar terms should not give the impression that a parent has been convicted by a criminal court (Paragraph 73).

This long-awaited Judgment is likely to be referenced in many upcoming cases – “it is thought that at least 40% of private law children cases now involve allegations of domestic abuse” (Paragraph 3) – so for ease the Judgment can be found here and a helpful short press summary prepared by the Court of Appeal is available here.