The Court of Appeal’s judgment handed down in March 2021, in relation to four, jointly-held appeals, all involving child welfare issues in cases alleging domestic abuse, was accompanied by new guidance to help family courts navigate domestic abuse cases, particularly where children are involved.
This guidance is both timely and welcome: in April 2020, the Home Affairs Select Committee heard evidence from domestic abuse services and charities that calls to their helplines had increased significantly following lockdown. After a year of Covid-related restrictions on movement, this trend shows no signs of slowing. It has been acknowledged for some time that the effect of domestic abuse on children is serious – even if they are not directly the focus of the abuse – and with lockdown preventing them from even attending school, the fall out for some children has been devastating. Indeed, among the statistics quoted in its judgment is the sobering fact that approximately 40% of private law children cases before the courts involve allegations of domestic abuse.
Guidance arose from four joint hearings
Acknowledging that there are already a number of initiatives underway to ‘improve our collective approach to issues of domestic abuse’, such as the MoJ’s Harm Panel Report and the Domestic Abuse Act, the judges made it clear that their guidance was limited to what was immediately relevant to the issues arising from the four appeals before them.
Their guidance focused on two areas: first, the court emphasised the necessity for the family courts to look for patterns of abusive behaviour rather than specific incidents occurring within a set timeframe; and second, questioned whether the current method of gathering and evaluating evidence relating to allegations of domestic abuse was appropriate and suggested alternative approaches that could be adopted.
Guidance issued in 2000 still relevant
The last time the court was called upon to give general guidance to the family courts on dealing with domestic abuse in relation to child contact orders was 2000, after which a Practice Direction, PD12J, was issued. PD12J has, at its core, the accepted, current definition of domestic abuse which refers to coercive and / or controlling behaviour, as well as physical harm. It also covers the insidious effect on children of living in an abusive environment even if they are not the prime focus of the abuse. PD12J outlines the steps the family courts are required to follow in child contact cases where domestic abuse is alleged to have occurred or is likely to occur.
Based on the context of the appeal hearings before it, the Court of Appeal saw no reason to amend PD12J, describing it ‘as fit for the purpose for which it was designed’. While acknowledging that PD12J may be reviewed now the Domestic Abuse Act is in force, the judges did not believe that the core definition of coercive and / or controlling behaviour, as set out in PD12J is likely to change significantly.
Gathering and documenting evidence
The court held that if a family court evaluating allegations of domestic abuse is governed by the modern definition, as contained in PD12J, then the focus should be on understanding the whole pattern of abusive behaviour rather than on specific events. To that end, it queried if fact-finding hearings should be held at all; if so, how should fact-finding be approached; whether or not a ‘Scott Schedule’ (an agenda prepared for the fact-finding hearings) was useful; and if criminal law concepts had any place in the evaluation of domestic abuse allegations.
As part of the process, the court had invited submissions from a number of interested parties, which support victims of domestic abuse, in order to help it consider ‘the approach of the Family Court to issues of domestic abuse.’ In summary, all those involved agreed unanimously that the use of Scott Schedules to document the evidence could be a ‘potential barrier to fairness and good process’ on the basis that the cumulative effect of a pattern of coercive and controlling behaviour on the victim was difficult to summarise in a series of ‘neat descriptions’. Although the court suggested that the use of Scott Schedules should be discontinued, it could do no more than describe the options available to replace them, including the submission of a narrative statement in prescribed form, leaving it to others ‘to develop these suggestions into new guidance or rule changes.’
Fact-finding hearings may not always be necessary
It was generally agreed that the emotional and psychological harm suffered by the victims (and their children) of domestic abuse cannot be neatly catalogued for the purposes of a fact-finding hearing. Therefore, the court’s guidance suggests a four-stage approach to deciding whether or not a fact-finding hearing is necessary. It also supported a submission by Cafcass that they should be involved at a much earlier stage to assess whether or not the allegations required further fact-finding or whether another approach would be more useful. The court also emphasised that it is inappropriate to use criminal law concepts to evaluate allegations of domestic abuse.
Abusive relationships are complex and any attempt to marshal evidence must not obscure the overall pattern of coercive and / or controlling behaviour. This was amply demonstrated by one of the cases before the court where the parties, as part of the fact-finding exercise, were required to limit the allegations to ten. The judge then further reduced them to three, thereby creating an unrealistic picture of the perpetrator’s overall behaviour and bypassing the guidance in PD12J to look for an overall pattern of abusive behaviour.
Domestic Abuse Act will further strengthen legal protection for victims
Domestic abuse is as old as the hills but public awareness of its extent, and its pernicious effect on children, has grown exponentially since the start of the pandemic. Within the Court of Appeal’s guidance was a brief summary of how the law around domestic abuse has evolved, moving from domestic violence where physical harm had to be proved, to the current position where the emotional and psychological trauma resulting from coercive and / or controlling behaviour is recognised as being equally damaging. The court’s guidance is a welcome addition to the family court’s armoury which will no doubt be further strengthened by the Domestic Abuse Act 2021, which received Royal Assent in April, and which will give victims greater protection from their abusers.