What can go wrong in child arrangement proceedings where there are allegations of domestic abuse?

ABSTRACT

Research suggests that there are significant problems with the way that the family courts deal with child arrangement proceedings involving domestic abuse. As allegations of domestic abuse are present in the majority of cases reaching the courts for a decision about who a child should spend time with, it is essential that the process and outcomes are safe for non-abusive parents and children. However, the recent conjoined appeal Re-H-N and others highlights flaws with the fact finding process and the presumption of parental involvement, resulting in minimisation of domestic abuse. These flaws were also identified by the 'Harm Panel' report (2020), which made recommendations for fundamental reforms. The Court of Appeal does not specify the nature of the reforms needed, but does confirm the need for a fresh approach. This case note will consider what went wrong in the four cases considered by the appellate court and how the cases bolster the urgent need for reform.

KEYWORDS:

• Domestic abuse
• child arrangements
• risk of harm

In Re H-N and others (Domestic Abuse: Findings of Fact Hearings) [2021] EWCA Civ 448, the Court of Appeal heard four conjoined appeals that clearly demonstrate what can go wrong in child arrangement proceedings where there are allegations of domestic abuse. Allegations of domestic abuse are a common feature of child arrangement proceedings in England and Wales, comprising at least half of such cases according to various research studies (Barnett 2020). It is therefore crucial that the family courts get the handling of domestic abuse allegations right. However, a major review of the process, the ‘Harm Panel’ report (Hunter et al. 2020), suggests that they frequently get things wrong and that there are four structural barriers to safer process and safer outcomes: resource constraints, the pro-contact culture and minimisation of abuse, adversarialism, and silo working.

There is well-established case law for the approach to be taken in cases where domestic abuse is raised, in particular the decision in Re L, V, M, H (Contact: Domestic Violence) [2001] Fam 260. Following on from that, there have been multiple attempts to get the process and outcomes right through practice directions, most notably Practice Direction 12 J (PD12J), which was first issued in 2008 and had its latest iteration in 2017. However, research has consistently shown that the implementation of PD12J is patchy and that the process and outcomes in child arrangement cases often leave the non-abusive parent, typically the mother, and children unsafe (Barnett 2020).

The four co-joined appeals in Re HN exemplify almost everything that can go wrong despite the case law and guidance that has been in place for many years. In the first of the appeals, Re B-B, the mother was pressurised into agreeing to a consent order by a judge who essentially dismissed the relevance of the allegations of domestic abuse, and said that that it was not going to affect the decision as to contact. The judge applied the pro-contact presumption, which is present in the Children Act 1989 s 1(2A), failing to consider whether the allegations of domestic abuse would rebut that presumption and point towards contact not being in the best interests of the child (para 98). The pressure applied to the mother to agree contact included threats to have the child removed from her care. The Court of Appeal were, understandably, critical of this approach (para 108).

In the second conjoined appeal, Re H, the appellate court did not overturn the first instance decision because the mother was content for contact with the father to continue. However, the Court of Appeal were critical of the first instance judgement, which failed to take into account a ‘modern understanding’ of domestic abuse, which encompasses not just physical and sexual violence, but also coercive and controlling behaviour. The court pointed out that it is hard for the family courts to get to the bottom of coercive and controlling behaviour, particularly because of the resource constraints, but expressed confidence that the majority of judges working in the family courts do have a modern understanding of domestic abuse (para 139). The Harm Panel report would concur with the view that resource constraints are a structural barrier to safe process and outcomes in domestic abuse cases, but it is less sanguine about the culture of the family courts. The Harm Panel point to a pro-contact culture and the minimisation of domestic abuse as one of the four structural barriers to domestic abuse allegations being responded to effectively in child arrangement proceedings (Hunter et al. 2020, chapter 4). A feature of the minimisation of domestic abuse is the focus on recent incidents of physical violence and not considering financial, emotional or psychological abuse, which can be the hallmarks of coercive controlling behaviour. Whilst Stark’s (2007) ground-breaking work on coercive control has been slowly integrated in the criminal law, through the creation of a criminal offence in s.76 of the Serious Crime Act 2015, the family justice system seems to be lagging behind in a persistent focus on physical abuse (Hunter et al. 2020, chapter 5).

In the third conjoined appeal, Re T, the first instance judge demonstrated a complete lack of understanding of the nature of coercive controlling behaviour, and the need to look for a pattern of abuse, rather than looking at specific incidents in isolation. In fact, instead of looking for evidence of domestic abuse, the judge preferred to see the parties through a lens of mutual blame, regarding the abuse as being attributable to relationship ‘conflict’ (para 171). This reframing of domestic abuse as part of a ‘high conflict’ relationship, where both parties are responsible, is an approach which was also identified by the Harm Panel report (Hunter et al. 2020). The Court of Appeal were critical of the first instance judge for failing to stand back and look at the pattern of behaviour. In this case, there were two incidents where the father had threatened to kill the mother; on one occasion whilst he was holding his hands around her throat, and on the other when he placed a plastic bag over her head. The appellate court was right to identify that something had gone wrong with the process when the judge accepted the father’s explanation that the plastic bag incident was a ‘prank’ (para 180).

In the fourth conjoined appeal, Re H-N itself, the judge had clearly formed a negative opinion of the mother, criticising her lifestyle choices and her housekeeping standards. The judge took the view that the mother had taken ‘trivial incidents’ and blown them out of proportion (para 202). The Court of Appeal were critical of the judge, pointing out that comments about the mother having a messy house and a ‘chaotic’ lifestyle was entirely inappropriate (para 204). The appellate court stated that a victim of domestic abuse does not have to be ‘blameless’. It also said that characterising as ‘trivial’ an incident where the father had slapped the mother whilst pregnant because she had remonstrated with him for opening her private mail was quite wrong (para 202). Such behaviour is a clear flag of coercive control (Stark 2007). The judge had spent too much time focusing on the mother’s character and too little examining what the father’s actions revealed about his own character and the risk that he posed to the mother and child. Again, the case resonates with the findings of the Harm Panel: victims of domestic abuse are often judged according to idealised stereotypes of the ‘real’ or blameless victim, which means that they are expected to behave in particular ways both in and outside the courtroom in order for their allegations to be taken seriously. The process of giving evidence in court is re-traumatising (Hunter et al. 2020, chapter 8), but victims of abuse can be judged to lack credibility because they appear to be ‘over’ or ‘under’ emotional (Hunter et al. 2020, chapter 5).

Overall, the judgment in Re H-N and others is good in identifying what can go wrong in child arrangement proceedings, but less good in identifying what can be done to ensure that things go right. The appellate court noted that there are problems with the current fact finding process and in particular, Scott Schedules, which mean that abuse has to be constructed as a small number of separate events. The court also struggled with how to handle the overlap between the criminal law and family law. In some ways, it would be unfair to criticise the Court of Appeal for not suggesting a way forward to guard against the errors that it found in the cases before it. The appellate court delivered its judgement in the context of an active legal and policy environment; the Domestic Abuse Act 2021 was just reaching the statute book and the government had committed to make sweeping changes following the Harm Panel’s recommendations. The judgement therefore creates a space for policy makers to make progress on implementing a new investigative approach recommended by the Harm Panel to address the four structural barriers to safer process and safer outcomes.

Disclosure statement

No potential conflict of interest was reported by the author(s).