The last couple of weeks have been big ones for the family court:
- First we had an important case on coercive control.
- Last week we had a landmark appeal in the Court of Appeal and I was glued to the remote hearing on Teams for the three days along with about 150 others. Court of appeal hearings are always held in public, which is why we were able to attend, but remotely because of Covid.
- And last Thursday evening the streaming of the film about domestic abuse and the family courts, What Doesn’t Kill Me, crashed as there were over 2000 people trying to watch it.
The coercive control case F v M [2021]
There have been very few reported cases on coercive control which makes this one even more important and the best thing to happen in family law since the Harm Report. In fact it was two cases heard together involving the same father (F) asking for contact with his children by two different mothers. It seems that it was because Mr Justice Haden had the benefit of considering both cases at the same time that he was able to see the “sinister, domineering and, frequently, tyrannising complexion of F’s behaviour, to a degree which would not have been fully appreciated had the cases been severed. It is the chilling repetition of identical behaviours, with two very different women of different age and background, which casts evidential light …”
This case shows once again how helpful it can be to put evidence of previous and/or subsequent relationships before the court as I explained a few months ago here.
This one is an extreme case of coercive control and manipulation as F was able to completely take over every aspect of both of his victims’ lives, whilst fooling the police and others involved by portraying himself as the victim.
Unlike so many judges (and other professionals) who are taken in by these narcissists, Mr Justice Haden certainly got the measure of F: “I have noticed that F uses dramatic and colourful language, sometimes with a somewhat old-fashioned complexion to it. Caught out in a lie ….. F said that he had been deploying “mere hyperbole”. His description of inconvenient evidence was “piffle”. In my assessment of his evidence, he presents as articulate, he smiles a great deal and he has a pervasive sense of himself as a victim. In his evidence I found F to be histrionic, self-pitying and manipulative. The contrast between MGF’s (maternal grandfather) distress in the witness box and that of F could not be starker. MGF cried for his daughter and granddaughters. F wept for himself.”
The importance of the case is in the recognition that ‘behaviour’ requires more than one single act and so the wording of PD12J (the practice direction which sets out what courts are supposed to do when there are allegations of abuse) is potentially misleading in so far as it appears to contemplate establishing behaviour by reference to “an act or a pattern of acts”. The Judge said: “Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse.”
You can read the judgement here and I would highly recommend you do (unless it’s going to be triggering for you, the facts are pretty grim) if you are in court with someone who coercively controlled you – and make sure you or your lawyers use it in court.
This case was referred to, and applauded, several times during the appeal below.
Four Appeals in the Court of Appeal
Unfortunately appeals from domestic abuse cases are rare but last week we had four appeals all heard together by the President of the Family Division and two other Judges. There were also four intervenors (interested parties) invited to give their views in the proceedings: Cafcass, women’s organisations (Women’s Aid, Rape Crisis and Rights of Women), Families Need Fathers, and the Association of Lawyers for Children.
The purpose of this appeal was not just to decide whether the four original hearings had been dealt with properly, but also for the court of appeal to give some guidance about how such hearings can be better dealt with in future.
There were apparently almost 50 lawyers involved: QCs, junior barristers and solicitors. The four mothers all had legal aid and the fathers were represented pro bono ie for free. Unfortunately the fathers seemed to be better represented than the mothers (apart from the one who let slip the name of one of the fathers in these totally anonymous proceedings). A transcript was ordered last September in one of the cases and the solicitor only asked for it the week before this monumental appeal. One of the QCs was representing two of the mothers and was umming and erring her way painfully through all her submissions; she did admit eventually that she had bitten off more than she could chew taking on both appeals and she served neither mother well. And it was suggested in one of the appeals that the mother was not sufficiently well represented by junior legal aid lawyers at the original hearing. So although complaint was made on behalf of fathers that they have to attend court as litigants in person when mothers are represented (when actually it’s more often vice versa) mothers aren’t always that well served by overworked and underpaid legal aid lawyers.
Few if any findings of abuse had been made in any of the four cases, which of course is all too common in the family courts. Two of the appeals were against orders of HHJ Tolson – the Judge who was heavily criticised on appeal last year for saying the mother could not have been raped because she had not physically resisted the father.
Lord Justice MacFarlane, the President of the Family Division, said that the last time domestic abuse had been looked at in the court of appeal was 20 years ago in the case of Re L and that “we’ve moved on” since then, when only serious violence was taken seriously. I was concerned before the appeal as to how impartial the President was going to be as he is known to be a supporter of Families Need Fathers (who aren’t all bad!) and to have meetings with them, but in fact he came over as sympathetic to the mothers, and all female victims of abuse, and was helpful to their advocates.
It appears from the many comments he made throughout the appeal that, unlike most judges, the President has received some serious training in domestic abuse, stating that “you can live in an abusive relationship where there’s no violence… the abuse comes from living in a relationship that is highly dysfunctional… coercive and controlling”. Although he did say at one point he may need “to be educated about the language which I use”. There was a lot of talk of training, let’s hope it gets translated into a lot of action.
In the meantime the court was assisted by several of the expert (in DA) observers using the Teams chat function when no-one knew what DASH stood for. However, use of the chat function was banned after that!
All four cases involved fact finding hearings and PD12J. The President clearly understood that the Scott schedules are not fit for purpose for non-violent abuse as they say you have to list individual allegations, rather than looking at patterns of behaviour and the overall quality of the relationship. He didn’t have any immediate answers to remedy this though and asked each of the barristers to suggest their solutions.
The following are very brief summaries of the four cases. You can read them in more detail here.
1. Re H-N – was an appeal from a decision of HHJ Tolson who had apparently decided just from reading the papers, i.e. before the mother had even set foot in the court, that this was not a domestic abuse case and at the fact finding hearing he made no findings on the mother’s allegations of rape, coercive controlling behaviour, physical, emotional and verbal abuse. Instead he focused on the main problem as he saw it: the mother and her ‘demons’, which she was totally unprepared for at the fact finding hearing. One of the difficulties for the mother was the fact she had taken her little boy to stay with his father, who lived abroad, for a few months and the Judge ordered that H-N spending time with his father did not create an ‘unmanageable risk’.
2. Re T – an appeal from a decision of HHJ Evans-Gordon, the only female judge of the four. This mother had also made serious allegations, including rape, and at the fact finding hearing the Judge did make some findings, although they were largely things the father had admitted. Part way through the fact finding hearing she had said: ‘it seems to me this is a shocking waste of court time… you’ve all heard and seen the evidence I’ve heard and I’m inviting you to make discussions…lots of pushing and shoving on both sides…it’s not what one might call the type of domestic abuse one is normally invited to find facts about.’’
Mother’s QC told the Court of Appeal in response to this:
“If having a bag put over your head with thoughts of death, hands around your neck and being told that is the way you are going to die is not the sort of abuse the court should be considering…the type of insults and anal rape that was being discussed – if this is not the type of case where the court should consider domestic abuse then : WHAT IS?”
Although the Judge accepted that the father had done this, she found that it was a prank or joke. She made isolated findings of abuse but didn’t look at them as a whole, or at the effect of them on the mother.
3. H – another appeal from a fact finding hearing before HHJ Tolson. He did not find the rape allegation proved but because all the focus had been on that and other serious allegations he had missed the patterns of behaviour which put the child at risk, namely the father’s outbursts of frightening anger. The mother had been limited to six allegations in her Scott schedule and the judge refused to deal with her wider allegations of coercive control. The mother had always said she didn’t want no contact but she did want the father to do some anger management work so he would know how to deal with his outbursts without their daughter being affected.
4. Re BB – this was an appeal against a consent order i.e. the mother had agreed to the father’s contact. But at a previous hearing, the same judge, HHJ Scarratt, had threatened the mother with her child being taken into care or adopted if she did not come to an agreement with the father. The appeal judges had listened to a tape of that hearing where the mother was heard to be sobbing while the judge told her this. It seems that Judge Scarratt was angry because he only received the bundle on the morning of the hearing and hadn’t had time to read it, but that’s hardly justification to treat a mother like that. Though as we know, it’s far from unheard of for judges to bully and threaten parents into making agreements which are totally against their better judgement.
The President said that what’s missing from the current regime is consideration of what is the harm, what is the impact on the child, of the allegations being made, and on the victim. Indeed, children so often get lost in these children proceedings.
Cafcass said they were not closed to the criticism made in the Harm Report and are always open to improvement (hmmm). And they did make the point that the question of interim contact is a very difficult one when allegations of domestic abuse are made, because the court is hamstrung without a fact-finding hearing, but that will cause delays.
On behalf of the women’s charities Barbara Mills QC pulled no punches. She told the court: “four mothers making allegations went to the family court hoping they and their children would be protected. Their experience chimes with ours: belittling, being disbelieved, dismissed and sadly on occasions being threatened. There was a struggle yesterday to find an appropriate adjective to describe a senior judge who had a vulnerable mother in front of him and went as far as saying that one of options is adoption. We don’t hesitate to give it a name: abuse”. She went on to say: “the mischief the court should be looking for is the power dynamic and patterns of behaviour and their impact on the victim”.
FNF complained that the word ‘parent’ had hardly been heard over the three days and it remains gendered: usually victims and survivors are mothers, but sometimes not.
The ALC said professionals and family justice professionals have had to take a long hard look at themselves re the Harm Report. I would like to think they have, though I haven’t seen much evidence of it yet in the lower courts. It was said that the starting point now is the potential for agreement, rather than the potential for harm, which I thought was a good way of putting it.
Some of the submissions were suggesting the earlier, and more regular, involvement of Cafcass. There was a lot of talk about making the process more inquisitorial than adversarial (as recommended in the Harm Report) but, as the President pointed out, that would be for Parliament to change rather than the court of appeal. As would the presumption of contact which the President said had been put by Parliament into the Children Act and the Court of Appeal can’t say anything to erode or neutralise that.
So although we await the judgement with bated breath – hopefully sometime in February – it’s unlikely that the Court of Appeal will do enough to ensure that abused children and parents will in future be properly protected, but hopefully there will be at least some progress.
Meanwhile the appeal had quite a bit of publicity which can only help.
Click below for the press coverage. It was reported in:
and Charlotte Proudman, barrister for two of the mothers, was on Woman’s Hour.
The Film
What Doesn’t Kill Me is a hard-hitting film made by an English film maker, Rachel Meyrick, about domestic abuse and the family courts in America, but as the same happens here it’s very relevant for us too. It was shown last week by Brunel University and it was good to know that so many people were watching. If you missed it you can watch the film here or here and you can watch the panel discussion which followed here, but some survivors may find it distressing.
PS – Louise Tickle, an amazing journalist who is working tirelessly to get change in the family court, has just published this.
It’s in the Family Law Journal, which is a publication for lawyers and hopefully read by judges too. So I’m delighted to see she’s written such a hard hitting article (which may be distressing to some readers) and I look forward to reading the rest when it’s published in March.
Leave A Comment