COURT OF APPEAL HANDS DOWN HIGHLY ANTICIPATED JUDGMENT ON DOMESTIC ABUSE

On the 30^th March 2021 the Court of Appeal handed down Judgment in the case of H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 (30 March 2021) (bailii.org).

Somia Siddiq acted for the Association of Lawyers of Children (ALC) who were invited to intervene in this ground-breaking case, which provides guidance on how the family court should deal with cases where there are allegations of domestic abuse including coercive and controlling behaviour and the impact of this on  a child. .

The last significant case in the Court of Appeal considering the court’s approach to domestic abuse was some two decades ago in 2000.

This case concerned four conjoined appeals. Each case was considered separately at the Appeal hearing in January 2021.  Whilst each appeal was unique on its facts, they all concerned allegations of partnership rape, domestic abuse and coercive control in the family household where the court was being asked to make private law orders in respect of children.

As well as deciding the appeals, the court took the opportunity to give guidance on a number of specific issues. Guidance was given with the Family Procedure Rules 2010: Practice Direction 12J (PD12J) in mind. This sets out what the court must do in cases where there are allegations of domestic abuse.

The court decided that PD12J remains fit for purpose and must be fully utilised in cases of this nature.

Specific guidance was given in relation to:

• Whether there should be a fact finding hearing, it was considered only if ‘necessary and proportionate’;
• The use of Scott Schedules. The court endorses a move away from Scott Schedules as a means of identifying issues to be tried in the Family Court. It is now considered that Scott Schedules  which identify factual incidents tied to a particular date and time, are at risk of failing to focus on the wider context and whether there has been a pattern of coercive and controlling behaviour;
• The relevance of criminal law concepts. While the court should not move away from words such as ‘rape’, the law is clear that criminal concepts should not be imported to the Family Courts. The court draws the distinction between judges needing to understand the potential psychological impact of sexual assault on a victim and the importance of Family judges avoiding being drawn into a factual investigation based on criminal law proceedings; and
• The approach to controlling and coercive behaviour. There is a need to evaluate such behaviour without significantly increasing the length of proceedings.

Significantly, the court provides examples of how coercive control impacts children:

• If it 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 of instilling, particularly in boys, a set of values which involve treating women as being inferior to men.

The court expressed its gratitude to all the lawyers who acted pro bono, as ITN did, and due to this the court “has had the inestimable advantage of hearing submissions made from all perspectives.”

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