On 30 March 2021, the Court of Appeal handed down judgment in relation to four conjoined appeals relating to orders made in private children law proceedings, all of which involved allegations of domestic abuse. This has been long-awaited, and is of significant importance, especially in relation to the current discussions concerning the Domestic Abuse Bill currently before parliament and the increase in cases concerning domestic abuse. Given the importance of the issues, the Court allowed several interested parties to intervene in the proceedings including: Cafcass, Rights of Women and Families need Fathers.
The Court confirmed that, in 2019/2020 there were over 55,000 private law applications relating to the care arrangements for children under the Children Act 1989. That is an extraordinary number and the Family Court system simply does not have capacity to cope with this number of applications. It is thought that in approximately 40% of those applications allegations of domestic abuse were made.
One of the key issues was perfectly summarised at paragraph 57 of the judgment: “How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight-forward, question.”
Family Proceedings Rule 2010: Practice Direction 12J - Child Arrangements and Contact Orders: Domestic Abuse and Harm (PD12J), sets out what the Family Court is required to do in cases involving allegations of domestic abuse. Whilst the Court of Appeal concluded that PD12J provides an adequate structure for recognising domestic abuse and approaching such allegations, it was accepted that the appeals demonstrate the difficulties of interpreting and implementing PD12J.
The Court of Appeal’s judgment set out guidance as to how to approach cases in which domestic abuse is alleged:
- Whether there should be a finding of fact hearing will depend on the nature of the allegations and the relevance of the decision to the child. The Family Court must decide if a fact-finding hearing is ‘necessary and proportionate’. There is also the potential for earlier ‘enhanced’ Cafcass involvement to help determine whether a fact-finding hearing is necessary.
- The time has come for there to be a move away from Scott Schedules (schedules of allegations relating to specific incidents) as a means of identifying issues to be tried by the Family Court, which risk overlooking the wider context and whether there has been a pattern of coercive and controlling behaviour.
- 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 a relationship with each other.
- Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary, that assertion should be the primary issue for determination at the fact-finding hearing.
- PD12J is focussed upon ‘domestic violence and harm’ in the context of ‘child arrangements and contact orders’ – it does not establish a free-standing jurisdiction to determine domestic abuse allegations which are not relevant to the determination of the child welfare issues that are before the court. In circumstances where delay is inimical to the welfare of a child and the courts, the Family Court emphasised the need to evaluate the existence or otherwise of a pattern of coercive and controlling behaviour without significantly increasing the scale and length of the proceedings.
- There is a distinction between judges needing to understand the potential psychological impact of sexual assault on a victim and the importance of Family judges avoiding being drawn into an analysis of factual evidence based on criminal law proceedings. Whilst the Family Court and the parties should not shy away from using words such as ‘rape’ in the manner in which they are used in ordinary speech, the law is clear that criminal law concepts should not be imported to the Family Court.
Given the volume of cases and the potential detriment to the children involved of prolonged proceedings, the above is helpful guidance for judges and practitioners alike.
It remains to be seen how complex issues like coercive and controlling behaviour can be evaluated without increasing the scale and length of the proceedings.
“How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight-forward, question.”