How the family court treats domestic abuse; the future.
On 30 March 2021 the Court of Appeal’s long-awaited judgment in four linked appeals related to family proceedings was handed down. The cases involved the welfare of children and the judgment is set to inform the way the family courts treat allegations of domestic abuse and coercive and controlling behaviour.
The guidance currently used by the court where it is alleged or admitted that a child or a party to family proceedings has experienced domestic abuse or that there is a risk of such abuse is set out in Practice Direction 12J (“PD12J”) to the Family Procedure Rules 2010. It was issued following guidance given by the court over 20 years ago. Society has moved on considerably since then. In particular, awareness of domestic abuse and understanding of the issues that surround it has moved on considerably.
The judgment refers to the outdated approach seen in the 1980s where, even in cases where “domestic violence” was established and an injunction granted, judges regarded that violence as purely a matter between adults and not as a factor that would ordinarily be relevant to determining questions about the welfare of children. The judgment rightly points out that fortunately, since that time there has been an ever-increasing understanding of the impact on children of living in an abusive environment.
It was therefore entirely appropriate, and arguably overdue, for the court to review PD12J, which the court confirmed in the judgment remains fit for purpose. One of the key parts of the judgment is the recognition that PD1DJ needs to be properly implemented to be effective and protect those it is supposed to protect. The judgment reminds us of when a fact finding hearing should take place, namely when it is “necessary” to:-
- Provide a factual basis for any welfare report or other assessment;
- Provide a basis for an accurate assessment of risk;
- Consider any final welfare-based order(s) in relation to child arrangements; or
- Consider the need for a domestic abuse-related activity.
The Judgment also states that “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. This highlights the significance placed on identifying controlling and coercive behaviour; a relatively modern concept in the development of domestic abuse legislation.
Another “pointer” included in the Judgment is that 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
A link to the full judgment can be found here: https://www.judiciary.uk/wp-content/uploads/2021/03/H-N-and-Others-children-judgment-1.pdf
At GL Law our experienced family team can assist you in relation to issues of domestic abuse, including concerns about harm to children which may be relevant to a relationship breakdown. Please contact us on 0117 906 9400 or firstname.lastname@example.org