Family law expert, Sophie Key considers the recent judgement in Re H-N and Others and its impact on disputes regarding the arrangements for children where domestic abuse is alleged.
The long-awaited judgement in the four Court of Appeal cases Re H-N and Others (children) (domestic abuse: finding of fact hearings)  EWCA Civ 448 was handed down on 30th March 2021. Family lawyers have been awaiting this significant ruling but what does it mean for parents who turn to the Courts for help to resolve the arrangements for their children?
For many cases, it will have no bearing as it relates only to cases which involve allegations of domestic abuse. However, it is believed that over 40% of private law children cases (involving a dispute between, generally, a child/children’s parents) now involve allegations of domestic abuse. In 2019/2020 that equates to over 29,000 of the cases before the Family Court which tells us how significant the issue is.
There is a presumption in English law that the involvement of a parent in their child’s life is in their best interests and, so, a child should have contact with both parents unless there are exceptional circumstances. In some cases, a parent may argue that, due to domestic abuse committed against them (or the child), contact should not take place or should be supervised to ensure the child’s welfare.
The Family Court has for some time taken very seriously the issue of domestic abuse in assessing the arrangements for children. In 2008, statutory guidance (Practice Direction 12J) was introduced which set out what the Court is required to do when domestic abuse is alleged or admitted. This includes identifying at an early stage whether domestic abuse is raised as an issue and to consider the extent it is relevant to the arrangements for the child(ren). The guidance provides for disputed allegations to be determined by the Court through a Fact Finding Hearing (at which the parties and any witnesses give evidence for the Court to determine whether the allegations are proved). Where domestic abuse is admitted or proved the Court should make an order for contact between the perpetrator of the domestic abuse and the child only if it is satisfied that the child, and the victim of the domestic abuse, is safe. To do this, the Court may require risk assessments, psychological assessments and the perpetrator to attend a Domestic Abuse Perpetrator Programme.
The recent judgement in Re H-N addressed 4 main issues:
- How to decide whether there should be a finding of fact hearing
The Family Court is to consider the nature of the allegations and the extent to which they are relevant to the arrangements for the children and whether it is necessary and proportionate. Fact finding hearings (which take place at the beginning of the proceedings as a preliminary matter) are incredibly costly and will inevitably add significant delay to the outcome of the application (even those cases involving only a few allegations can require several days in Court – with the current Court backlogs, not helped by the pandemic, it could be many months before the Court is able to accommodate the hearings).
- The use of Scott schedules
These are documents prepared for the Court, usually in table form, setting out each party’s numbered allegation and containing the other’s party’s response. In many cases, the Judge will limit the number of allegations to be included on the Scott Schedule. The Court of Appeal noted that this produces a false portrayal of the couple’s relationship and makes it impossible to consider a pattern of coercive and controlling behaviour (particularly where the Judge elects not to consider ‘historic’ allegations). In addition the Appeal Court recorded the Harm Panel’s view that, ‘reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse’. The Court has not stipulated how allegations should be presented but it will be encouraging for victims of domestic abuse that the Court will, moving forward, be interested in more than a ‘snap shot’ of the abuse they have suffered.
- The approach to dealing with controlling and coercive behaviour
The Judgement confirmed there needs to be an increased focus on controlling and coercive behaviour. This is likely to involve significant extra work for the Courts (to determine the history of an abusive relationship) and the Judges will need to balance this against the harm caused to children by the delay in Court proceedings.
- The relevance of criminal law concepts
The Court concluded that, whilst the parties and the judge should not shy away from using terms such as ‘rape’, it is not for the Family Court to apply the criminal law to determine whether an allegation is proved or not proved.
Whilst the recent judgement does not provide us with clarity as to how the Court wishes us to present the allegations for determination, it makes it very clear that domestic abuse, specifically coercive and controlling behaviour, remains a clear focus of the Family Court in determining whether a child should spend time with both parents and ensuring the safety of all involved.
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