The Court of Appeal has finally delivered judgement in the four appeals relating to fact finding hearings and the impact of domestic abuse on contact.  If you missed my previous post about these appeals you can read it here:

It was a big event with all those heavyweight barristers and we had high hopes of big changes for the way domestic abuse is dealt with in the family court.  The result is mostly disappointing although we’ll need to wait and see how it plays out in practice.

The good news is that three of the four appeals have been allowed and will now go back to their original courts (Central Family Court, Guildford and Canterbury) for a different judge to decide whether or not there should be a new fact finding hearing.  Sadly the fourth appeal was never going to succeed: the whole point of an appeal is to get a different decision from the one made by the original judge but by the time this appeal was actually heard contact was working well between the father and the child and the mother wasn’t asking for a different order to be made.  She just wanted different findings to be made … but unfortunately it doesn’t work like that.  Findings of abuse are only made in order to determine whether or not contact is safe for a child and the mother was saying by her actions that it was.

The Court of Appeal confirmed that Practice Direction 12J does not need to be changed.  It contains a good definition of coercive control and it works well if it’s used properly.  Unfortunately it rarely is and the judgement sets out how it should be properly followed.

The other good news is that the Court of Appeal has clearly spelled out that:

A pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a Scott schedule.   It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:

  1. Is directed against, or witnessed by, the child;
  2. 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;
  3. Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
  4. Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.

If you’re in children proceedings please be sure to note and use this crucial part of the judgement as we don’t have much else to use to persuade courts that children are also victims of coercive control and are harmed by it.

Another helpful statement was that we need to move away from using Scott schedules as coercive control is a pattern of behaviour which can’t be reduced to five or six allegations in a schedule. Unfortunately the Court of Appeal didn’t give any indication as to what we should have instead, passing the buck to the Private Law Working Group and the Harm Panel’s implementation group.  In part they were ducking the issue because the family courts are “currently overborne with work” and they didn’t want to impose anything which could make fact finding hearings take up even more court time.

They did say that “It is, however, our expectation that, in cases where an alleged pattern of coercive and/or controlling behaviour falls for determination, and the court has made that issue its primary focus, the need to determine a range of subsidiary date-specific factual allegations will cease to be ‘necessary’ (unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour).”  That’s helpful guidance but the difficulty is always in getting the court to make coercive control it’s primary focus in the first place.

It’s common for judges to dismiss allegations of domestic abuse as ‘historic’ but you can now use this judgement to show that the court should still take abuse into account even if it was a long time ago.  The case of Re T especially could be cited against a judge who is trying to minimise the abuse, as Judge Evans-Gordon did in this case eg when she said putting a plastic bag over the mother’s head which made her feel as though she wanted to die was probably just a prank on the father’s part.  She kept talking about the ‘relationship conflict’ as judges and others so often do when they’re unwilling or unable to recognise the abuse.

The contrast between the understanding and language used by the judges in the Court of Appeal and those in the lower courts is stark.  But the CA still seem to think these four cases are “one-offs” and that the judges were just having a bad day because of the pressure of work.  That’s not my take on it though.

We all know about Judge Tolson whose decision that a sexual assault did not constitute rape because the woman had taken no physical steps to stop the man: it was even the subject of an early day motion in Parliament:  After this notoriety he stepped down from his role as designated family judge at the Central Family Court in London (due to “desiring a life better suited to my personal circumstances”) but is still working as a family judge in Peterborough.

As for the other two judges, I know from my own clients that they’ve both behaved almost as badly in at least one other case.  I’d like to think that these judges are now sufficiently shamed into behaving better in future, but I’m not putting any money on it.

The Court of Appeal stressed that they were not making any new law and explained that they were leaving it to the Domestic Abuse bill going through Parliament and the Ministry of Justice implementing the Harm Report, so they were only going to give ‘guidance’.  It’s most unfortunate after all the hard work of so many people to get this appeal heard so quickly the Court declined to make any more of the progress so many of us are so desperate for, particularly ending the culture of ‘contact at all costs’.

The Judges said they were confident that most of the judges and magistrates sitting in the family court now understand that domestic abuse is not just violence but includes coercive and controlling behaviour which may be continuing and impacting on the children.

Unfortunately I don’t share their confidence.  Some of the training all the judges supposedly have is outlined in the judgement but either they don’t all attend even though it’s said to be mandatory, or the training is woefully inadequate, or judges sleep through it, or they can’t see how it applies to their cases.  However, they’ve now been warned that if they don’t deal properly with coercive control which could be harmful to a child, they’re likely to be in trouble if they’re appealed.  Unfortunately, as the Court of Appeal acknowledged, far too few people appeal.

You can read the judgement here.   It’s 47 pages long and I’ve only been able to give a brief review of it here so it’s well worth reading if you’re involved in children proceedings.

Charlotte Proudman who represented two of the mothers has written a hard hitting article about her disappointment in the result here.

George Julian live tweeted the three days in the Court of Appeal and has written an interesting blog of her reflections of the procedure as an outsider who had no previous knowledge of the family court.  She reflects on the language used, firstly in the Court of Appeal itself eg “my learned friend” and then the “value-laden language” of the judges being appealed.  She talks about the “weaponising” of women’s experiences of abuse and how the judges seemed to have made up their minds before they even went into court before finally commenting on “furious judges”.  Definitely worth a read here.

If you’ve had a bad experience in children proceedings please be sure either to appeal if you’re advised you can, or to complain about the judge.  It’s time that more of these dreadful judges are exposed for their bullying behaviour and harmful decisions.