Court of Appeal gives guidance on domestic abuse

In a much-anticipated judgment the Court of Appeal has given guidance upon the approach that the Family Court should take to allegations of domestic abuse in cases affecting the welfare of children.

As stated in our earlier post, the judgment concerned four appeals from Family Court children cases in which at least one parent had made allegations of domestic abuse against the other parent.

A common issue

As the Court of Appeal explained, such cases are far from rare. In the year 2019/2020 the Family Court received 55,253 applications by parents seeking to resolve a dispute with the other parent relating to the future care arrangements for their child. Although the figure is by no means firm, it is thought that at least 40% of such cases now involve allegations of domestic abuse. If that proportion is right, said the Court of Appeal, then the Family Court is required to engage with the question of domestic abuse in around 22,000 children cases each year.

Obviously, allegations of domestic abuse in children cases are a very serious matter. If they are found to be true then they could adversely affect the relationship between the child and the abusive parent, possibly even curtailing face-to-face contact between the child and the parent. On the other hand, if they are found to be untrue then there is the risk that the court got it wrong, and any order made by the court allowing contact between the child and the parent could expose the child to further abuse.

Allegations of domestic abuse are normally determined early in the proceedings at a ‘fact-finding’ hearing, at which the court decides whether the allegations are true, before later considering what orders to make in relation to the children.

And the court already has guidance as to how to approach abuse allegations in children cases. These are contained in Practice Direction 12J, or PD12J for short. PD12J sets out a step-by-step template of the steps that the courts are required to follow 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 abuse perpetrated by another party, or that there is a risk of such abuse.

Whilst highlighting ways in which the courts’ approach to domestic abuse allegations can be improved, the Court of Appeal specifically confirmed that in its view PD12J remains fit for purpose. The challenge, it said, relates to the proper implementation of PD12J.

The guidance given by the Court of Appeal essentially fell into two categories: firstly whether in some cases the focus should be on a pattern of behaviour as opposed to specific incidents, and secondly the extent to which it is appropriate for a Family Court to have regard to concepts which are applicable in criminal proceedings.

Coercive behaviour

Perhaps the most important piece of guidance handed down by the Court of Appeal related to the issue of coercive and controlling behaviour.

Coercive and controlling behaviour is where one party seeks to restrict the other, over a period of time. They may, for example, stop the other party from spending time with their friends and family, or they may seek to control them by restricting their access to money.

The Court of Appeal emphasised the importance of such behaviour, and said that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations. The Court of Appeal stated:

“Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J … that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).”

A criminal law approach?

Obviously, some of the incidents of domestic abuse that the Family Court investigates could also be crimes, such as assault, or even rape. But does this mean that the Family Court should deal with these incidents in a similar way to the criminal courts?

No, said the Court of Appeal. In children cases Family Courts are concerned with resolving disputes between parents, and the welfare of the children. They should avoid analysing evidence of behaviour by the direct application of the criminal law to determine whether an allegation is proved or not proved.

The standard of proof in criminal proceedings is higher than in family proceedings. Whereas in family proceedings a judge only needs to find it more likely than not that something took place, in criminal proceedings they need to be sure ‘beyond reasonable doubt’ that it did.

Accordingly, a family judge is not required to decide whether a criminal offence has been proved to the criminal standard, and any use of familiar terms should not give the impression that the abusive parent has been convicted by a criminal court.

The future

This is an important judgment, which will clearly have an effect upon the way in which these cases are conducted in future. However, there is concern in some quarters that the Court of Appeal has not gone far enough. For example, Lucy Hadley of Women’s Aid Federation of England said:

“We welcome the conclusion family judges must do more to investigate patterns of coercive and controlling behaviour and examine what harm this has upon a child.

“But we are severely disappointed the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger. We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors.”

There is, however, further reform in the pipeline, as the Court of Appeal pointed out. Not least, the Government’s Domestic Abuse Bill, which aims to strengthen protection for victims of abuse, is nearing the end of its passage through parliament.

Hopefully, we will see a future in which the rights of victims, alleged abusers and, above all, children, are properly protected.