Children suffer too

Family judges must understand impact of coercive behaviour, appeal court says

Family judges must understand the impact of controlling and coercive behaviour on its victims and their children, the Court of Appeal said today.

Three senior judges headed by the president of the High Court family division allowed three appeals, dismissed a fourth and provided guidance for judges in England and Wales on how to handle disputes between parents over the welfare of their children in cases involving allegations of domestic abuse.

There are thought to be around 22,000 such cases a year. One of the appeals was allowed today because the trial judge’s approach to the evidence had been “seriously flawed”.

Judges’ decisions on issues such as contact can have far-reaching consequences. As the appeal judges explained, family judges frequently have to conduct “fact-finding” hearings to decide whether domestic abuse occurred. The parent who makes the allegation has must satisfy the court, on the balance of probabilities, that the disputed abuse took place:

The evidence may not be crystal clear, yet the stakes may be high. If the court decides that an abusive allegation has not been sufficiently proved, the court must assess future risk on the basis that the event “did not take place”. If, in reality, the abuse did occur but there is a lack of evidence to prove it, the court’s subsequent orders may risk exposing the child and parent to further abuse. Conversely, if alleged abuse did not in fact occur, but the court finds the allegation proved, orders significantly limiting the “perpetrating” parent’s future relationship with their child may be imposed. 

Sir Andrew McFarlane, sitting with Lady Justice King and Lord Justice Holroyde, said that detailed guidance first issued in 2008 combined with training for judges who try cases of this kind meant that the number of appeals was small — “but even a small number of cases where the judicial approach to domestic abuse has been shown to fall short gives rise to deep unease”.

The four cases before the court each involved fact-finding hearings. At the Court Appeal, the four mothers who were appealing against decisions made in the family court were legally aided. The four fathers were represented by lawyers acting without charge. A number of interested groups were allowed to make representations.

The concept of domestic violence dates back to legislation introduced in 1976. Although it was ground-breaking in its time, said the court, “it is now wholly outdated and hard to comprehend an approach which required evidence of actual bodily harm to a victim before a power of arrest could be attached to an injunction”:

Obsolete too is the approach often seen in the 1980s where, although “domestic violence” had been established and an injunction granted, judges regarded that violence as purely a matter as between the adults and not as a factor that would ordinarily be relevant to determining questions about the welfare of their children. Fortunately, there has been an ever-increasing understanding of the impact on children of living in an abusive environment…

It is now accepted without reservation that it is possible to be a victim of controlling or coercive behaviour or threatening behaviour without ever sustaining a physical injury. Importantly it is now also understood that specific incidents, rather than being seen as free-standing matters, may be part of a wider pattern of abuse or controlling or coercive behaviour.

The judges praised a recent judgment on this issue by Mr Justice Hayden, which I reported in January.

They then went open to explain how a pattern of abuse can harm a child. That could happen when the behaviour:

  • Is directed against, or witnessed by, the child; 

  • Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child; 

  • Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child; 

  • Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men. 

On the other hand, the judges observed, not all directive, assertive, stubborn or selfish behaviour amounts to domestic abuse.

For a long time now, a party alleging domestic abuse has had to list individual allegations in what family lawyers refer to as a “Scott schedule”. Lawyers argued that this might now be counter-productive because coercive and controlling behaviour was likely to have a cumulative impact on its victims. The judges agreed with the need to move away from Scott schedules but said further discussions would be needed ahead of new guidance or rule changes.

The four cases

Re B-B was an appeal by a mother against a contact order made by Judge Scarratt in Canterbury. The mother claimed that the judge was wrong to make an order by consent when there were unresolved allegations of serious domestic abuse, including rape.

The appeal judge said they had reached their conclusion “with reluctance”:

It is well known that judges sitting in the family court are, and have been for some considerable time, overworked. There was good reason for the judge to express frustration that none of the essential case management preparations for the hearing had been undertaken. There was however no justification for the judge to say that “if this goes on the child will be taken into care and adopted”. Nor was there any justification for the judge twice referring to the possibility of reporting the case to social services.

Whilst we have in mind that, between the making of the order and the intervention of the pandemic, the order was implemented by both parties, nevertheless in our judgment the impact of the things said by the judge to the mother cannot be underestimated. It is hard to imagine a more serious and frightening prospect for any mother, let alone a young, single mother, than that of having her child taken off her and placed for adoption…

It follows that we have concluded that the consent order was made in circumstances where there had been procedural irregularity of such seriousness that the appeal must be allowed.

Re H was an appeal against an order made by Judge Tolson QC in London. Following a fact-finding hearing, the judge held that:

  • three allegations relating to two incidents of rape were “not proven and did not happen”; and 

  • two allegations of financial and emotional abuse and harassment “have not been investigated” and have “no implications for the future child arrangements in the context of this case”.

Circumstances had changed since permission to appeal was granted, the judges noted. The mother was no longer appealing against a contact order. For that reason, they dismissed her appeal:

We have considered with considerable care whether, given (i) the serious nature of the allegations made, and (ii) the unusual circumstances in which these conjoined appeals are being heard with a view to guidance being given, this court should nevertheless analyse... the judge’s approach to the evidence and rape allegations… 

We have concluded that it would be wrong to do so. 

Re T was an appeal from an order made by Judge Evans-Gordon in Guildford. The order made extensive case management directions for a welfare hearing which was to take place following a fact-finding hearing that had been conducted by the judge over a period of three days. The mother argued that the judge’s decision was wrong and unjust in that the judge not only failed to appreciate the significance of those findings that she did make but also failed properly to find that the mother had been anally raped by the father.

The Court of Appeal allowed the mother’s appeal:

In our judgment, the judge fell into error in that she omitted to look at the findings she had made as a whole. We fear that having determined that the allegations of anal rape were not made out, she did not then step back and appreciate the significance of the matters which she did find to have been proved. As a consequence, the judge failed to appreciate the true significance and seriousness of the father’s behaviour or to consider whether these findings established a pattern of coercive and/or controlling behaviour.

Re H-N was another appeal against an order made by Judge Tolson in London. The judge had declined to make the findings of domestic abuse sought by the mother against the father and noted that, whilst the father had made limited admissions of domestic abuse, the approach of the professionals was to be on the basis that the matters alleged by the mother “did not happen”.

The appeal was allowed:

In our judgment, the judge failed properly to analyse the evidence and to draw together the threads of the admissions made by the father including his retention of H-N in France. When this is put against the intensity of the judicial focus having rested on the mother’s ability as a parent and her vulnerable mental health rather than on the allegations of domestic abuse, it leaves one unclear as to whether what the judge was in fact seeing in the presentation of this mother was not an intelligent manipulative mother making up allegations for her own ends, but a woman who, whilst she has undoubtedly suffered mental health issues, was demonstrating both in her behaviour during the course of the relationship and her presentation in court, the classic signs of a person who has been the victim of domestic abuse and in particular a controlling and coercive relationship…

The appeal in Re H-N is allowed on the basis that the judge’s approach to the evidence in the case was seriously flawed and the matter is therefore remitted to the designated family judge at the Central Family Court for further case management.

The judges said their decisions on the four appeals relied on long-established principles of fairness or the ordinary approach to judicial fact-finding. None of the decisions purports to establish “new law”, the court added. They therefore do not establish any legally binding precedent.