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Jo Carr-West discusses a new approach to domestic abuse in the Family Court

  • April 14, 2021
  • By Jo Carr-West, Partner

An important Court of Appeal judgment has called for a shift in the approach of Family Court judges to allegations of domestic abuse raised in cases concerning the arrangements to be made for children. Fundamentally, the court recognised the need to focus on wider patterns of behaviour within a relationship, and not solely on individual incidents.  The intervention is timely given the progress of the Domestic Abuse Bill through Parliament, which seeks to enable a more effective response to Domestic Abuse at every level.

Under the Children Act 1989 (as amended by the Child and Families Act 2014), there is a presumption that the involvement of a parent in their child’s life will be in the child’s best interests unless it is shown that this is not the case. If one parent has perpetrated domestic abuse against the other, this may mean that ongoing contact with that parent would be harmful to the child, and not in their best interests, or that contact needs to be limited or monitored to ensure the child’s safety. The Family Court therefore frequently has to consider allegations of domestic abuse and assess whether the allegations are true, and, if so, how they should impact the arrangements to be made for the children.

In Re H-N and Others [2021] EWCA Civ 448  the Court of Appeal was asked to consider four cases where judges had, according to the appellants, inadequately handled allegations of domestic abuse. The Court of Appeal considered that the judges had, firstly, focused too narrowly on specific events, rather than taking a wider view on whether the alleged perpetrator had acted in a controlling or coercive way, and, secondly, had not adequately considered the impact of the abusive behaviour on the other parent and the child. In their judgment, the judges of the Court of Appeal discussed the evolving understanding of domestic abuse, and provided guidance on how it ought to be approached in the Family Court.

The Court of Appeal accepted that the “overwhelming majority” of domestic abuse is underpinned by coercive control, and that whether there has been an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse. Not all poor behaviour in a relationship is abusive; behaviour is controlling if it is designed to make its victim subordinate or dependant, and is coercive if it used to harm, punish or frighten the victim.

The current practice of the court is generally to consider a limited number of alleged incidents detailed in a document known as a Scott Schedule, hear evidence in respect of each and determine whether it took place as alleged. The Court of Appeal held that the time has come to move away from this approach, as it can result in judges taking a narrow view, ignoring the cumulative impact of behaviour and the characteristics underlying it.

The reason it is important to establish whether there has been a pattern of controlling or coercive behaviour is because such a finding is very likely to impact the assessment of the risk posed by future contact between the alleged perpetrator and the children. As the court explained, to regard controlling or coercive behaviour as is in the past and irrelevant to the risk of future harm to the child is old fashioned and no longer acceptable. Simply because the risk of physical abuse has been removed does not mean that the coercive or controlling nature of the perpetrator will not manifest in another manner.

The Court of Appeal made clear that judges should only investigate alleged domestic abuse where it is relevant to the outcome of the dispute over the arrangements to be made for the children. For example, if both parties agree that the children should spend substantial amounts of time with each parent, accepting that such an arrangement does not pose a risk to the children’s safety, then there is no need for the court to consider allegations of domestic abuse.

It is clear that going forward judges will need to adopt a broader approach to allegations of domestic abuse than has often been the case to date. Analysing alleged abusive behaviour by considering whether or not it formed part of a pattern of controlling and / or coercive behaviour will offer a more nuanced, and therefore more valuable, assessment than simply looking at individual incidents. Whilst there is likely to be a period of adjustment as this is incorporated into the judicial approach, it should lead to better judicial decision-making and safer arrangements for children.

If you have any questions about how the family courts approach allegations of domestic abuse or other aspects of family law please contact Jo Carr-West on 020 7412 0050 or jo.carr-west@hunterslaw.com.


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