Private Law Children Cases involving Allegations of Domestic Abuse: Recent Case Law and the Domestic Abuse Act 2021
Written by Naakesha Michl
Recent Case Law
Re H-N and Others (children) (domestic abuse: finding of fact hearings)  EWCA Civ 448
Full judgment: bailii.org/ew/cases/EWCA/Civ/2021/448
The Court of Appeal was concerned with 4 appeals arising out of orders made in private children law proceedings, where at least one parent made allegations of domestic abuse against the other. As family practitioners will now be acutely aware, the court took the opportunity in this case to give guidance as to how such cases should be handled.
As part of the background the court in this case set out some key statistics relating to such cases, which are worth reflecting upon:
- In 2019 / 2020 the Family Court received over 50,000 private law applications under the Children Act 1989 seeking to resolve the care arrangements for their child(ren).
- At least 40% of those applications involved allegations of domestic abuse.
The court found that the circumstances encompassed by the definition of 'domestic abuse' in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse. In short, 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 schedule in court proceedings (see 'Scott Schedules' at paragraph 42 -50). 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[paragraph 31].
The appeals did not themselves establish any new legal principles or even set a precedent, however an important opportunity was taken to consider how such cases should be approached. It was accepted by all concerned in this joint appeal at the outset that PD12J remains fit for purpose, 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[paragraph 28]. The issue identified related to how PD12J is to be implemented ‘on the ground’.
The court gave guidance on four issues which need to be considered in such cases:
- The need for a fact-finding hearing
The correct approach is set out at paragraph 37 of the court’s judgment. In summary, this is firstly to consider the nature of the allegations and how relevant determining them will be to determining the terms of any subsequent private law order; secondly the court must keep at the forefront of its mind that the purpose of a fact-finding hearing is to have a basis of assessment of risk; thirdly whether it is necessary to have a fact-finding hearing taking into consideration other evidence that exists, and the relevance to the court of any allegation if proven; and finally whether a separate fact-finding hearing is necessary and proportionate.
- Scott Schedules as a tool to plead allegations of domestic abuse
There was unanimity by all appellants and intervenors involved that Scott Schedules are not an effective manner of pleading allegations of domestic abuse. Alternatives, including a narrative statement / a threshold document akin to that used in public law proceedings, amongst others, were discussed, however the solution remains to be seen.
- If a fact-finding hearing is deemed necessary, how should an allegation of domestic abuse be dealt with?
Where a party has raised a pattern of coercive and/or controlling behaviour, the court stated that it is the responsibility of the individual judge or bench of magistrates in each case to set a proportionate timetable and to maintain control of the court process where it has been determined that a fact-finding hearing is necessary. 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).
- Criminal law concepts.
'…importation of concepts from the Criminal Courts to the Family Court' is 'inappropriate, unnecessary and unwise, and should be avoided…'[Hickinbottom LJ, paragraph 64].
AA v BB  EWHC 1822 (Fam)
Full judgment: bailii.org/ew/cases/EWHC/Fam/2021/1822
Four months after the judgment in Re H-N was handed down, in July 2021, judgment was handed down in this case which arose out of a case management decision in private law proceedings.
In summary, the judge at first instance excluded evidence from a fact-finding hearing in which both parties made allegations of domestic abuse, notwithstanding that the fact-finding hearing had to be adjourned for unrelated reasons, and there was to be a further case management hearing. The appeal, heard by Judd J, was successful on the basis that the evidence excluded had not been excluded on grounds that it was either inadmissible or irrelevant, and in doing so, the judge at first instance had failed to consider the guidance set out in Re H-N relating to the need for the court to look for patterns of behaviour as opposed to specific allegations in isolation.
A Child (Application of PD12J)  EWFC B59 (6 October 2021)
Full judgment: bailii.org/ew/cases/EWFC/OJ/2021/B59
HHJ Dancey allowed the mother permission to appeal a DJ’s decision on 30.09.2021, before going on to allow the appeal and listing the matter for directions, and subsequently a fact-finding hearing, some months later.
The relevant facts of this case are:
- On 09.07.2021 the mother relocated with the parties’ three children, aged 5, 8 and 10 years, to the North of England. Prior to this relocation the children had lived their lives in the family home with their father (most recently in Dorset).
- The father returned home from work to find the mother and children gone with no forewarning.
- Initial messaging between the parents suggested the mother had no concerns about the father having unsupervised contact with the children.
- When contact did not happen, the father made an application to the family court on 24.08.2021 for a SIO / PSO / CAO. The relevant application here is that of the SIO for the mother to return the children to Dorset.
- The mother made cross applications in which she alleged the father had been controlling in their relationship and that he had sexually assaulted her.
At first instance, the DJ hearing the matter made an order that the mother return the children to Dorset within 48 hours, in default of which there would be a transfer of residence order.
Clearly, the DJ at first instance was put in a difficult decision. He had to make the decision for the mother to either return the children based on limited, developing and sometimes conflicting evidence, including allegations of domestic abuse made by the mother against the father, or to list the case further without the children’s return in the interim, both having the potential to cause children of these ages significant harm.
On balance, in granting the appeal, the following points were made by HHJ Dancey [paragraphs 129 and 130, not exhaustive]:
- the mother was raising allegations of domestic abuse and PD12J was therefore clearly engaged…
While allowing for the fact that the district judge’s judgment was extempore and that perfection is not expected, it does seem to me that in respect of the following his approach was wrong:
- while he was entitled to take a critical or even sceptical approach to the allegations of domestic abuse, it was not open to the district judge effectively to dismiss them summarily or set them entirely to one side for the purpose of making interim orders;
- as a result the district judge did not engage with PD12J until very much as an after thought once he had determined the interim orders he would make;
- the district judge dismissed the question of risk without sufficient analysis or information, particularly on the more subtle question of coercive or controlling behaviour and the potential emotional and psychological impact…
That the mother, at the subsequent fact-finding hearing before HHJ Dancey some 3-months later, was found to have fabricated her allegations of rape, controlling and coercive behaviour and unreasonable physical chastisement of the children by their father, is an interesting twist in this case but one which should act as an important reminder to ensure that where PD12J is engaged, it is engaged properly by advocates and the judiciary at an early stage within proceedings.
Domestic Abuse Act 2021
There are two sections now in force which are important in the family courts:
- S63: Special measures in family proceedings: victims of domestic abuse – in force since October 2021, this section provides protection via special measures for a party or witness within family proceedings who is or is at risk of being a victim of domestic abuse carried out by another party within the proceedings, a relative of a party or a witness within proceedings.
This section provides far ranging protection for not only parties in family proceedings but also witnesses, the aim being to improve the quality of their evidence and a party’s participation within proceedings.
- S65: Prohibition of cross-examination in person in family proceedings.
Cross examination under the Domestic Abuse Act can be prohibited in 4 ways:
- Cross-examination by a party who has been convicted, cautioned, or is charged with a specified offence.
- Cross-examination by a party subject to an on-notice protective injunction.
- Cross-examination by someone against whom there is specified evidence of domestic abuse.
- If none of the above apply, the court may prohibit cross examination in circumstances where not to do so would affect the quality of the evidence given and the person in whose interest the direction is being exercised would suffer significant distress.
Naakesha Michl is a Parklane Plowden Chambers barrister, she specialises in all areas of family law, including public and private children law and finance.