Court of Appeal Considering Domestic Abuse Allegations

We previously discussed a case in which a father was seeking contact with his children and the mother opposed the father’s application, claiming that he had subjected her to extreme coercive and controlling behaviour.

Whilst the abuse that the father was found to have subjected the mother to in that case was quite extreme, it is tragically a common scenario that domestic abuse allegations are raised by a parent responding to an application for a child arrangements order.

As we will see in a moment, there are rules setting out how the courts should approach such a situation, but the Court of Appeal is now looking at the matter afresh, and their decision may result in further guidance for the courts.

Conjoined appeals

Last week the Court of Appeal heard four conjoined (or linked) appeals by mothers who raised serious allegations of abuse by the father, in cases concerning arrangements for their children. The four appeals are being dealt with together, as they raise very similar issues.

The appeals were heard by Sir Andrew McFarlane, the President of the Family Division, Lady Justice King and Lord Justice Holroyde who, interestingly, is not a family law specialist, but rather specialises in criminal cases (obviously domestic abuse can be a criminal matter).

The four appeals are all from decisions made by circuit judges sitting in the family court. Two of those decisions were made by His Honour Judge Tolson QC, who was severely criticised last year by Ms Justice Russell, a more senior judge, for finding that a woman had not been raped because she did not “physically resist”. As a result of this, Ms Justice Russell recommended further training for family judges who may hear cases involving allegations of serious sexual assault.

In all four appeals the mothers are claiming that the court’s approach to the issue of domestic abuse was flawed.

This is actually the first time that the Court of Appeal has considered these issues for twenty-one years. As Sir Andrew McFarlane pointed out, attitudes towards domestic abuse have changed greatly in that time. He said: “If there was violence, it would be taken seriously in the case. If there seemed to be a minor exhibition of violence, it was probably minimised by the court. We have moved a long way from that. We now have more understanding that you can live in an abusive relationship where there is no violence at all.”

The Court of Appeal has reserved its judgment, which is expected to be handed down in the next few weeks.

Practice Direction 12J

As mentioned above, there are rules setting out how the courts should approach child arrangements (including contact) cases, where there are allegations of domestic abuse. The rules are contained in what is known as ‘Practice Direction 12J’.

The practice direction is quite technical, but it essentially requires any court dealing with a case involving arrangements for children to consider at all stages in the proceedings whether domestic abuse is an issue. If it finds that it is an issue, it must investigate the matter at the earliest opportunity, and decide whether, and to what extent, it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms.

You can find the practice direction here.

Seek advice

Obviously, allegations of domestic abuse are very serious, both for those who claim to be the victim and for those who are accused of perpetrating the abuse.  And such allegations, if found to be true, can have a serious effect upon the outcome of the case, and therefore the future relationship between the child and one of its parents.

Whether you are a victim or an alleged abuser, you should seek expert legal advice, as soon as possible. We can provide that advice. Legal aid is available for victims of abuse, but sadly is not available for those alleged to have abused.

To find out more, and to get started with one of our specialist lawyers, click here.