Domestic Abuse in Children proceedings: The Guidance

The court of appeal has issued guidance on domestic abuse and findings of fact. The Guidance was given against the backdrop of Family Proceedings Rule 2010: Practice Direction 12J Child Arrangements and Contact Orders: Domestic Abuse and Harm (PD12J) which sets out what a court is required to do in domestic abuse cases.

It is accepted by the court, the parties and within the two reports, that PD12J remains fit for the purpose for which it was designed, namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. The present appeals demonstrate that difficulties have, however, arisen in interpretation and implementation.

The court focused upon the fact that central to the modern definition of domestic abuse is the concept of coercive and/or controlling behaviour. Such behaviour can cause harm to children living in a household. The Family Court has to consider whether there has been a pattern of such behaviour as part of its approach to domestic abuse cases.

Specific guidance was given by the court in relation to:

i) Whether there should be a finding of fact hearing. The proper approach is set out at [38] which emphasises the need to consider the nature of the allegations, the relevance to the decision to be made in relation to the child, and the need for the court to decide if a fact-finding hearing is 'necessary and proportionate';

ii) The use of Scott Schedules. The court endorsed the view of the parties and of the authors of the Harm Report, that the time has come for there to be a move away from Scott Schedules as a means of identifying issues to be tried by the Family Court. Scott Schedules, which identify specific 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;

iii) The approach to controlling and coercive behaviour. The court emphasised the need to evaluate the existence or otherwise of a pattern of coercive and controlling behaviour without significantly increasing the scale and length of private law proceedings, in circumstances where delay is inimical to the welfare of a child and the courts;

iv) The relevance of criminal law concepts. Whilst the Family courts and the parties who appear in them should not shy away from using words such as 'rape' in the manner in which they are used in ordinary speech, the law is clear that criminal law concepts should not be imported to the Family court. There is a distinction between judges needing to understand the potential psychological impact of sexual assault on a victim on the one hand and the importance of Family judges avoiding being drawn into an analysis of factual evidence based on criminal law proceedings on the other. A freestanding sexual assault awareness training programme is in place for Family judges and it is a mandatory requirement for all Family judges to complete the programme.

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