How does the Family Court address allegations of domestic abuse in the context of disputed arrangements for the care of children?
In June 2020, following a public consultation and call for evidence, the Ministry of Justice published a panel report “Assessing the Risk of Harm to Children and Parents in Private Law Children Cases” (also known as “the Harm Report”). The report was commissioned following widespread concern about the ability of the family law justice system to properly serve and protect the interests of victims of abuse, including both parents and children.
The approach of the Family Court to domestic abuse has been considered by the Court of Appeal in two major decisions within the last year.
In giving judgment in Re H-N [2021] EWCA 448 the court referred to the ‘pernicious’ nature of domestic abuse. Giving judgment in four appeals in cases involving domestic abuse, including allegations of rape, the court endorsed the recommendations of the Harm Report and gave guidance as to how allegations of domestic abuse were to be dealt with in the private family law context. The court recognised as fit for purpose the Practice Direction under the Family Procedure Rules (PD12J) which sets out the mechanism whereby the court must consider whether to direct a discreet hearing to determine allegations of abuse (a ‘fact-finding hearing’).
This judgment in Re H-N was followed in April 2021 with the passing into law of a number of sections of the Domestic Abuse Act 2021, defining domestic abuse with an emphasis on clarifying non-physical forms of abuse. PD12J has since been amended to incorporate this definition. The Act also provides that victims of domestic abuse are entitled to special measures in the family courts, intended to help them participate or give evidence in court proceedings, such as by use of partition screens, live video links or intermediaries.
This year, in K v K [2022] EWCA Civ 468, a similarly constituted Court of Appeal to that present in the case of Re H-N, considering a case on similar facts, appeared to draw back from the guidance given in Re H-N.
In Re H-N, the court described as ‘old fashioned’ and no longer acceptable the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being ‘in the past’ and, therefore, of little or no relevance in terms of establishing a risk of future harm. Whereas, in K v K, the court said that no risk of harm to the children was established in circumstances where the findings made were that abuse had occurred during the relationship but had not continued since the parties separated.
The court emphasised, in Re H-N, that the focus of private law proceedings is the best interests of the child and the purpose of a fact-finding hearing is to ascertain facts relevant to the issue of contact, in this case very serious allegations of rape. By contrast in K v K, the court said that past sexual behaviour between two adults in private would only be relevant to the welfare of the children if they formed part of the basis for holding that this was a coercive and controlling relationship.
In Re H-N, the court said that reliance on specific incidents is not always helpful since, where domestic abuse exists, it is often a pattern of behaviour. The judgment in K v K went further, emphasising that the court only decides individual factual allegations where it is strictly necessary to do so in addition to determining the wider issue of ‘coercive and controlling behaviour’, when that itself is necessary.
The variance between the two decisions has meant that those seeking to pursue allegations by way of a fact-finding hearing, do so in reliance on the judgment in Re H-N. Whereas, those who seek to avoid a fact-finding hearing will base their position on K v K.
In light of these differences, it is perhaps unsurprising that the respondent mother in K v K has filed papers in the Supreme Court seeking leave to appeal that decision. It would certainly seem that guidance from the Supreme Court is needed to provide clarity on this vitally important and nuanced area.