In June 2020 the Ministry of Justice published the Harm Panel Report, following an inquiry into risks of harm and the family courts in England and Wales. The report identified deep-seated, systemic problems with how domestic abuse is responded to in family court proceedings. Courts and professionals were found to be prioritising contact over children’s and non-abusive parents’ safety. Despite attempts by senior judiciary and policy makers, over the past 20 years, to improve family court responses to domestic abuse, these issues have continued.
Practice Direction 12J (PD12J) was implemented in 2008, which set out what a court should do when allegations of domestic abuse are raised in a child arrangements (contact) case. Research found serious shortcomings in its implementation and deep-rooted systemic barriers to achieving meaningful cultural change, leading to a continuous ‘cycle of failure’. These include a strong pro-contact culture and narrow understandings of domestic abuse by courts and professionals which leads to domestic abuse being marginalised, downgraded and ignored in child contact cases at the expense of safeguarding and welfare. There is a perception in many courts, and by many professionals, that domestic abuse is only ‘relevant’ to decisions relating to the welfare of the child when it involves recent incidents of very severe physical violence. This has led to fact-finding hearings (where the court decides whether allegations are true) being held in only a small proportion of domestic abuse cases, with allegations not considered sufficiently recent or serious ‘swept under the carpet’. If fact-finding hearings are held, victims can experience systematic barriers to proving the abuse, including women’s experiences not being believed and stereotypical beliefs on ‘typical’ victims and victim behaviour. Even where abuse is proved at fact-finding hearings, it is not often factored into decisions about child contact. Respondents to the Harm Panel felt there was little difference in the orders made between cases that did and did not feature domestic abuse, with courts simply treating the case as if domestic abuse was of no continuing relevance.
Challenging outdated attitudes towards abuse
In March 2021 the Court of Appeal published a judgment in the case of Re H-N and others [2021] EWCA Civ 448 on four joined family court cases, all of which involved allegations of domestic abuse. The mothers had experienced dismissive attitudes and minimisation of the domestic abuse and sexual violence by the trial judges. Three of the four appeals were upheld, with the Court of Appeal agreeing that the cases had been dealt with poorly.
The Court of Appeal noted that the approach requiring victims to provide evidence of physical injury was “wholly outdated” [23], as are approaches which respond to domestic abuse as purely a matter between the adults and as though it is irrelevant to the child’s welfare [24]. The Court of Appeal emphasised that incidents of abuse “, may be part of a wider pattern of abuse or controlling or coercive behaviour” [27], which is relevant to the risk of future harm, is never just ‘in the past’, and that a “pattern of abusive behaviour is as relevant to the child as to the adult victim.” [31] Accordingly, the Court of Appeal stated that understanding saw coercive and controlling behaviour should be the “the primary question” in child contact cases involving domestic abuse. [51] However, the Court of Appeal also expressed the view that “not every case requires a fact-finding hearing even where domestic abuse is alleged” [8], highlighting the resource implications of increasing the number and length of fact-finding hearings.
There is tension in the Re H-N case between restricting the need for fact-finding hearings, and ensuring robust assessments of the risk of coercive control. The concern is that without a full understanding of domestic abuse and a real shift away from the pro-contact culture, resource constraints will come before factually-based risk assessment and the ‘cycle of failure’ will persist. This concern was confirmed in the case of K v K two years later.
Challenges to meaningful change
In K v K [2022] a district judge made findings against the father, including rape and controlling behaviour of the mother and physical abuse of the children. Cafcass had recommended there should be no further direct contact between the children and their father. On the father’s appeal to the High Court, the findings were upheld. However, the Court of Appeal then found that the finding of rape was unsafe and the case should be remitted to a more senior family court judge for consideration of whether a fact-finding hearing was necessary. This raises concerns about how allegations of rape are dealt with in family court proceedings. There is no definition of rape and consent in documentation applicable to family court proceedings. The Court of Appeal in H-N made clear that the criminal concepts of rape and consent should not apply in family court proceedings. It is therefore unclear what test a complainant must meet in order to prove their allegations which is, arguably, in breach of their rights under Articles 6, 8 and 14 of the European Convention on Human Rights. A further concern is the use of rape tropes and stereotypes, such as how a woman would or should behave in an abusive relationship. Additionally, unlike the criminal law, there are no safeguards in family law proceedings to prevent a complainant’s sexual history being used to discredit her.
The Court of Appeal also said that the parties should first have participated in a Mediation, Information and Assessment Meeting (MIAM) before going to court, despite mediation being inappropriate in cases involving allegations of domestic abuse. The judgment also indicated a worrying understanding of how coercion and control impact children. The trial judge had found that the father’s behaviour “would have been very frightening for the children” who, he said, had suffered harm from witnessing the abuse of their mother. The Court of Appeal said an analysis of why the children would have found this behaviour “very frightening” was needed.
The ‘key principles’ set out by the Court of Appeal were designed to limit the number of fact-finding hearings by ensuring that MIAMs are not bypassed without a ‘genuine reason’, and careful consideration of whether a fact-finding hearing is ‘necessary and proportionate’. A similar view is contained in judicial Guidance published in May 2022 which states: “there is a time and a place to determine allegations of domestic abuse, but it may not be in your court. Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations.”
The family courts are facing huge resource constraints, and the difficulties of ensuring that the fact-finding exercise can be undertaken in this context cannot be underestimated. However, it is extremely concerning that lack of resources and poor understanding of domestic abuse appear to be leading a retreat from the positive progress seen in H-N and recommended by the Harm Panel report. Although the Court of Appeal in H-N confirmed that training for judges in rape, domestic abuse and coercive and controlling behaviour is mandatory, it remains unclear what training is provided. Judicial training needs to go further than outlining the basic principles of domestic abuse and should include a focus on the dynamics of memory and trauma to increase understanding of how witnesses and parties present when they have sustained abuse. Two years after the Harm Panel, a report by Women’s Aid found that while some family court professionals’ understanding of coercive control is beginning to improve, the impact of coercive control on victims, and the ways it is used by perpetrators post-separation are still not fully understood, with the pro-contact culture still a “key driving factor” in child contact cases.
Finally, a significant concern is the use of ‘parental alienation’ as a tactic to undermine allegations of domestic abuse, an argument that was raised by the father in the Court of Appeal in K v K.
Parental alienation is not recognised as a medical disorder by the WHO, NICE or under the DSM. There is growing evidence that parental alienation is often counter-alleged by fathers when mothers allege domestic abuse. We are aware of cases in which primary carer mothers have been found to have ‘alienated’ their children from the father, and the children have then been removed from mothers and either placed in foster care or in the care of the father. In such cases, she may be allowed no contact with the children for 90 days or ever again. In contrast, in most cases of proven domestic abuse, contact between the child and perpetrator continues. A further concern is the use of ‘parental alienation experts’, an industry that continues to grow and profit. The President of the Family Division is currently reviewing the use of unregulated experts in family court cases.
We continue to push for progress. In August 2022 Dr Proudman succeeded in an appeal in which the Judge failed to undertake a fact-finding hearing on the mother’s allegations of abuse (CM v IP [2022]). We are also currently awaiting the outcome of the Pathfinder Projects being piloted in North Wales and Dorset, which aim to develop alternatives to the adversarial process to reduce the trauma to victims of domestic abuse and ensure that the voice of the child is heard. Until then, however, it is imperative that the current system does not resolve resource constraints by compromising or bypassing fact findings and consequently, effective risk assessment and the safety and welfare of children and adult victims.
