Content warning: the topics discussed in this post include physical and sexual violence.

There are some judgments from the higher courts that are so important they give their name to something bigger. They are known instantly to all, like Kylie, Madonna or Cilla. For example, a judge weighing up the placement options in an adoption case goes through the B-S analysis, a judge deciding whether a child should come to Court to give evidence undertakes a Re W exercise, and any half-decent threshold document is judged on whether it is Re A compliant.

Equally, there are things that are long awaited but never give quite the punters what they want. For example, the Hackney case was expected to be authoritative guidance on what is anecdotally widespread misuse of local authorities voluntarily accommodating children instead of applying to the Court, or Home Alone 3, which was supposed to be so much more than it ever was.

Earlier today, the Court of Appeal handed down judgment in Re H-N. We covered the hearing in this case extensively. The case was about how the family court treats allegations of domestic abuse. Is this an important case? Yes. Does it make important points? Yes. Is it as wide-ranging as billed, and does it live up to the hype? Probably not, but there are reasons for this. You may have been forgiven for thinking that this would be a radical judgment on how to deal with domestic abuse.  There are a number of things ongoing that mean that the Court of Appeal tempered what it had to say in this case in terms of guidance. This is a mishmash of reform proposals to improve the way the court handles allegations of domestic abuse. Briefly, these include: 

• The ‘Harm’ report in June 2020 (see our own Lucy Reed’s posts about this);

• The ‘Private Law Working Group’ – a multi-disciplinary group set up by the President to review the Child Arrangements Programme, and;

• The Domestic Abuse Bill, which is going through Parliament at present (for I think the third time).

However, the Court in this case has given guidance on how the family court should deal with cases where one parent makes allegations that the other was domestically abusive. It is undoubtably useful and will be referred to in the family court for, I suspect, the next few years at least. So on balance this is a Kylie and not a Home Alone 3. I suspect we will be referring shortly to finding of fact hearings being run ‘in a Re H-N compliant way’.

I will come the facts and issues in this case shortly, but to understand H-N I think it’s useful to first look at the background and the approach to domestic abuse in English law.

BRIEF BACKGROUND

The Court of Appeal noted that at least 40% of child arrangements cases before the family court, it is thought, involve allegations of domestic abuse. Where allegations are made, sometimes the court will look into these allegations and hold a ‘finding of fact’ hearing, which is basically a trial on whether or not the allegations are true. It will hear evidence and witnesses will be asked questions. I will also come back to this shortly. 

In the past few years, there has been a raft of press reporting about the way the family court deals with these cases, not least from our own Louise Tickle who only very recently wrote compellingly about a court system that ‘retraumatises’ victims of abuse. But there are more: a BBC investigation last year found at least four cases of children being killed by abusive parents after the family court had allowed contact between them.

As you will see, the issue of domestic abuse and the family court goes back a long way. Many of the more recent problems and injustice go back to changes to the legal aid system in 2013 by the coalition government, who removed legal aid for nearly all cases where parents can’t agree the arrangements for their children and a local authority is not involved. And whilst legal aid continued for those who alleged that they were the victim of domestic abuse, it did not continue for the parents on the other side of this dispute. This meant that there has been a huge increase in cases where the abuser was unrepresented, and therefore asking questions in court themselves in person, of those it is said they abused. Sir James Munby in the View from the President’s Chambers (2017) quoted from the Women’s Aid report ‘Nineteen Child Homicides’, and said this”

’Allowing a perpetrator of domestic abuse who is controlling, bullying and intimidating to question their victim when in the family court regarding child arrangement orders is a clear disregard for the impact of domestic abuse, and offers perpetrators of abuse another opportunity to wield power and control.’ Who could possibly disagree?”

One notable feature of this appeal is that whilst those who brought the appeal had the benefit of legal aid, as they had alleged that domestic abuse had occurred, the respondents to the appeal had no such public funding. Their solicitors and barristers worked for free, and appeared pro bono in every case. Regardless of your views of the parties themselves, equality of arms is a very important part of a fair trial. So, a hat tip to those who put the case for the other side and enabled the Court to hear all perspectives.

WHY IS CONTACT IMPORTANT, AND WHAT DOES THE LAW SAY ABOUT CONTACT?

The right to family life is a human right to be enjoyed by both parents and children. It may only be interfered with if it is necessary to do so. The United Nations Convention on the Rights of the Child provides that “states… shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it contrary to the child’s welfare”. The European Court of Human Rights has said on many occasions that contact between children and their non-resident parents are an important part of family life.

If there is a conflict between the rights of the child to family life and the rights of the parent, the rights of the child will prevail. There is also a presumption in the Children Act 1989 that the involvement of a parent in the life of their child will further their welfare, unless it is proved otherwise.

The general rule in English law is that contact should therefore be maintained between a parent and a child. This should only be stopped in ‘exceptional’ circumstances, where there are important reasons to stop the contact and there are no alternative ways for contact to happen safely. Stopping contact between children and their parents is, arguably, a last resort.

HOW DOES THE COURT MAKE DECISIONS ABOUT CHILDREN?

When a court makes a decision about a child, in nearly all cases the most important consideration will be what is in the best interests of the child.

WHAT IS DOMESTIC ABUSE?

The only written definition of domestic abuse is contained in Practice Direction 12J to the Family Procedure Rules 2010. This is about four years old, and is entitled ‘PRACTICE DIRECTION 12J – CHILD ARRANGEMENTS & CONTACT ORDERS: DOMESTIC ABUSE AND HARM’. This will be the starting point for family lawyers and judges when deciding how to deal with a case involving domestic abuse.

The practice direction defines domestic abuse as:

“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.”

The practice direction also expands on some key concepts, all of which are forms of domestic abuse, including abandonment and coercive and controlling behaviour.

DOES ENGLISH LAW TREAT DOMESTIC ABUSE AS HARMFUL TO CHILDREN?

Yes; of ANY kind and of ANY level.

Back to 12J:

          “Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents.’”

When an English court makes a decision about a child’s welfare, part of that decision will involve an analysis of risk – what are the risks to the child from x or y? In principle, we work on the basis that any domestic abuse is harmful at any level, and therefore the presence of any domestic abuse will be an important factor for the court.

WHAT CAN THE COURT DO?

In terms of powers, where serious domestic abuse may exist, the Family Court has some clout. I am using old terms now, but the court can order anything from full custody to no contact, and everything in between. I should probably slap myself on the wrist at this point – the Children and Families Act 2014 changed the terminology of the law, and there was a move away from ‘contact’ and ‘residence’, which were considered to be loaded terms. Not that it made one jot of difference, considering the marvellous BBC drama ‘The Split’ spent six weeks referring to ‘custody’ and ‘access’. We now talk in terms of whom a child lives with or spends time with, in a ‘child arrangements order’.

In extreme cases, the court can determine that a parent has no contact with their children.

In addition, the court can offer protection for individuals from the perpetrators of abuse in the form of injunctions: normally a Non-Molestation Order, an Occupation Order or the civil injunction under the Protection from Harassment Act 1998. These are not the focus of this article.

WASN’T THIS ABOUT RE H-N?

Oh yes.

So, what was Re H-N about?

THE FACTS

Re H-N was not one case, but four cases heard together. The cases were all different and unrelated, but the issues on appeal all related to how the courts hearing the cases initially had dealt with allegations of domestic abuse.

Funnily enough, the last really significant case about domestic abuse and the family court was also four cases being heard together in 2000. Because the case was important, the Court asked for CAFCASS, and various parent, women and children’s charities to take part in the case too.

Briefly:

• The first case (B-B) was a case in which the original judge, His Honour Judge Scarratt, had said things to the mother at a case management hearing that were wildly inappropriate. Allegations were made by both parties: by mother that father had raped her, and by father that mother was violent and abusive towards him. The judge told the parties that their problems were of their own making, the mother was at one point in tears as the judge said “if this goes on the child will be taken into care and adopted’”. The judge limited the number of allegations he was willing to determine. The judge, at a later hearing, described the contents of the court bundle as nonsense. He gave the parties time to achieve a ‘settlement’, which they did .

• The second case (H) involved allegations of rape and financial abuse which the judge, His Honour Judge Tolson QC, found did not happen. The judge allowed contact on that basis; the mother in this case wished for contact to continue. Further allegations were again made and were not proven. An Order for unsupervised contact was made, which was not opposed or appealed in this case.

• The third case (T) was an appeal of an Order that a T should spend time with their father, after the Judge, Her Honour Judge Evans Gordon, found allegations that the father had raped and violently attacked the mother to be not proved. The judge heard but did not consider the bigger picture of coercive and controlling behaviour that existed in this case, notwithstanding the other allegations of sexual violence.

• The final case (H-N) was an appeal of another decision of HHJ Tolson QC at which, having not made findings of rape, declined to take into account the father’s admissions that he had perpetrated domestic abuse over a long period of time, which including punching the mother, slapping her over the face whilst eight months pregnant, punching a wall, wrongly retaining the child in France and holding the mother by the arms during an altercation in France. It was said that the judge failed to appreciate the impact of all of these incidents put together.

WHAT GUIDANCE DID THE COURT GIVE?

Before dealing with each appeal, the Court was invited to deal with a number of issues. The Court gave guidance on:

• How a Court should decide whether or not a finding of fact hearing should take place to determine allegations of domestic abuse;

• Whether or not a Scott Schedule should be used;

• How the Court should deal with allegations of controlling and coercive behavour, and;

• Whether concepts from criminal law are useful and/or relevant.

Finding of Fact Hearings

The decision as to whether or not to hold a Finding of Fact hearing is an important one. The Court made four suggestions to consider:

• Firstly to consider whether the allegations are relevant to what is being decided, and how.

• Second to think about how the allegations – if they are proved – will affect its risk assessment.

• Third if it is necessary to have a fact finding hearing, taking into account all the other evidence that the court has and whether the allegation is relevant, and;

• Finally whether the fact finding hearing should be a separate hearing with some risk assessments and reports to follow, or whether the fact finding hearing can form part of the final hearing of a case.

Scott Schedules

A Scott Schedule is a way of organising all the different allegations that may be made within a case.  It is usually organised in a table, and shows the allegation itself, where in the court bundle the references can be found, and what the response to the allegation is by the accused party. A Scott Schedule might look a bit like this…

Allegation Number	Allegation	References	Response
4.	On 30 March 2021 at 10.00am, Jack went to the pub.	Jill’s statement [E4]. Police disclosure [incident log F121, statement of PC Plod F213]	Denied. Jack says the pub was closed because of COVID, and that he was at the shop [C72].

The reason for laying out allegations like this is so the Court and the parties can quickly see which allegations are made, what the evidence is to support them, and what the other party says about them. Concerns have been raised about Scott Schedules both at the hearing of Re H-N, and in the Harm Report. This is for two reasons. First that by focussing on specific incidents on a specific date and time, the pattern of incidents that may make up controlling behaviour can get lost. So in effect the Court will often need to look at the bigger picture to assess if any controlling or coercive behaviour is present. Second, the temptation is for the court to control the ambit of a hearing by limiting the number of allegations. I have regularly had the experience of the court saying ‘Scott Schedules limited to five allegations’. By being selective in this way, a false picture of a relationship can appear. As the Court said by way of example, if three of the five allegations are proved, only these facts can be taken into account when assessing the risk. This stops the court from being able to look at things in the round, and the reality is that domestic abuse can be properly seen only when looking at the accumulation of lots of little things over a long period of time.

Hayden J stated the problem nicely in the recent case of F v M [2021] EWFC 4:

‘…I can see that what I have referred to as a particularly insidious type of abuse may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator.

The Court agreed that those in the family justice system should move away from using Scott Schedules. Quite what they are to be replaced with remains in question, and this is something that the Private Law Working Group may look at in the near future.

How to deal with Coercive and Controlling Behaviour

The Court had been told by some of the parties that coercive and controlling behaviour now makes up the bulk of the allegations of domestic abuse before the court. The question, as I have just said, in these cases is whether or not there is a pattern of behaviour that amounts to domestic abuse.

This enlightened understanding of domestic abuse moves away from the traditional understanding of ‘domestic violence’, where protection was only given where there was actual violence. The Court was satisfied that this was well understood by the vast majority of judges and magistrates. This involves departing from the ‘old fashioned’ and ‘no longer acceptable’ approach of viewing coercive and/or controlling incidents between adults as in the past and of therefore no relevance to future harm. This seems to be a significant statement for all involved in these cases.  

The effect of looking at long established patterns of behaviour, however, is that the parties are likely to experience delay, as a hearing window will need to be found. The allegations may not be able to be limited to a handful, and the Court may need to comb through many years of relationships to do justice to the case.

Before COVID-19 was just a twinkle in another virus’ eye, there were significant delays and waiting times for family court hearings. There are too many cases, and not enough judges to hear them. The system is badly resourced, and ‘early help’ legal aid, whereby parties could go to solicitors before bringing the case to court and try and sort things our first, has been taken away. Mediation is poorly resourced and there are too many exceptions to it. This is not the fault of the judges, but the fault of the Government – and the last few governments – who have crucified the legal aid and court system over many years. The family court in early 2020 was a busy place, burdened with overstuffed lists and judges who were substantially overworked. The result of that – and even more so now, where a bigger backlog has developed – is that cases that need a longer hearing slot will have to wait longer to be heard. The Children Act says that delay will normally be harmful to a child’s welfare, and many private law cases such as this experienced substantial delay.

So how can the court determine sometimes dateless allegations that a relationship was abusive, and keep a handle on delay? This is something that requires further consideration by both the parliament and those responsible for putting the Harm Report and the Private Law Working Group into action. But the Court gave us a few pointers:

1. Firstly to remind us that the whole point of a fact-finding hearing is to determine allegations of harm. The court must decide whether a parent poses a risk to a child before making a decision about contact, and weigh up if the child is likely to suffer any harm. So the allegations that are made must speak to that question of harm – it is not just a ‘free for all’ to determine allegations of domestic abuse if they are not relevant to this question.
   
2. Secondly, a finding of fact hearing is only necessary where:

• A professional needs a factual basis for an assessment;
• It is needed to ensure that a risk assessment is accurate;
• It is necessary for the court to be able to form a welfare analysis and make a final order, or
• It is necessary to consider activity directions such as domestic abuse perpetrator courses.

The Court, therefore, suggested that as a starting point, the parents should be asked to describe in a statement or at a hearing the overall experience of being in a relationship with each other. If either of them alleges controlling or coercive behaviour, this should be the main issue at any finding of fact hearing, and not any more specific factual allegations, unless they are so serious that the court should look into them more, such as sexual violence.

The Criminal Law

This is an important point.

The family court often deals with allegations that are also against the criminal law – for example, rape or assault. The criminal law has very specific elements of a crime that must be present for the action to be a crime. For example, if Bill punches Ben and bruises his nose, there may be an argument as to whether this was an assault or actual bodily harm. But it might not matter for the family court – it is still an episode where Bill punches Ben, and it should be recorded as an instance of physical abuse. Similarly, a serious and frightening assault may fall short of being a ‘rape’ within the meaning of the criminal law, but within a pattern of abusive behaviour the strict criminal rules for consent, for example, may not be relevant in a family case. The Court of Appeal said that the “family court should be concerned to determine how the parties behaved and what they did with respect of each other and their children, rather than whether that behaviour does or does not come within the strict definition of ‘rape’, ‘murder’, ‘manslaughter’ or other serious crimes.

The point is that when a family judge is asked to make a finding of fact, it does not need to think of events in the strict criminal law definition of what the behaviour might be. The family court is not a criminal court, and a finding of fact is not a conviction, not least because findings of fact are made if they are ‘more likely than not’ to have happened, instead of whether the court is sure that they did.

WHAT HAPPENED IN EACH OF THE CASES?

And, so, what of the appeals themselves? Briefly: 

• In B-B, the Court of Appeal found that HHJ Scarratt’s ‘unguarded’ comments about taking the child into care had “having had long lasting repercussions for [the mother]”, and questioning whether the finding of fact hearing should take place at the later hearing only served to give the mother the view that she had little option but to settle the case.

• In Re H, the Court found the appeal to be academic, given that there was no challenge by the mother to the continuation of contact. Given that the factual issues had no relevance now to the welfare decision for H, the appeal was dismissed.

• In Re T, whilst the Court did not allow an appeal against a refusal to find that Mother was anally raped, the Court found that the judge failed to acknowledge the seriousness of two particular incidents of strangulations and suffocation, nor recognise the impact on the mother and the child. The Court did not agree that the father’s words at the time – where he threatened to kill the mother – were ‘commonly used in anger’, as the Judge had originally found. The judge failed to stand back and look at the bigger picture, which is whether the evidence established a pattern of coercive and/or controlling behaviour.

• In Re H-N, the Court found that the Court should have drawn together the serious incidents that the father did admit as evidence of domestic abuse over a long period of time. The Court said: “When this is put against the intensity of the judicial focus having rested on the mother’s ability as a parent and her vulnerable mental health rather than on the allegations of domestic abuse, it leaves one unclear as to whether what the judge was in fact seeing in the presentation of this mother was not an intelligent manipulative mother making up allegations for her own ends, but a woman who, whilst she has undoubtedly suffered mental health issues, was demonstrating both in her behaviour during the course of the relationship and her presentation in court, the classic signs of a person who has been the victim of domestic abuse and in particular a controlling and coercive relationship.”

DISCUSSION AND CONCLUSION

The Court concluded that this case shows the importance of the ‘modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household.’ In this case, judges and professionals have a comprehensive reference point about how to approach cases of domestic abuse to use, hopefully, along with other meaningful and wide-ranging reform. It is important to remember the limits of the Court of Appeal – it can only provide guidance to judges as to how to interpret the law and the rules that exist at present. It cannot impose new rules, or make policy, or make resource decisions. So there are limits to what this decision will achieve on its own.

What might the impact be in the short term?

It is likely that there will be some experimentation as Scott Schedules are replaced, and there is a lack of guidance still about how exactly coercive and controlling behaviour is to be investigated by the family court. I suspect this will lead to more appeals, as various ways of setting out and investigating cases are tried and tested. It should also be said that broadly worded allegations can be less than useless, and so a renewed emphasis on linking allegations made to harm to the child or risks to which the child may be exposed is essential. I am not sure that this came through as clearly as it should, although it was said. In my view, this is often missing from many cases but should be front and centre of the minds of the lawyers, professionals and judges.

The Court encouraged the use of a broad allegation to be made, but is a broad allegation of coercive and controlling behaviour really enough? Can there be some method of plotting or charting significant incidents without asking the court to make findings on each one? Can it really be said that a broad finding is sound when it is based on a foundation of matters which the court has not specifically established, or is it a house of cards open to appeal?

The statement that it is old fashioned to view historic incidents as irrelevant is obviously correct, although the danger may be that will this widen the lines of enquiry unnecessarily and detract from the central purpose of a finding of fact which is to investigate matters relevant to risk today and in the future. It may be that this is easier said than done.

The other issue as far as I can see is the resource problem. Long hearings are not possible in every case, but a finding that a parent is coercive or controlling is a serious one and, if the allegation rests on stepping back and looking at the broader canvas, more court time may be required. This is not something judges or practitioners can do anything about, and reinforces the importance of a properly resourced family justice system. But we don’t have that – we have one that is frankly hanging on by the skin of its teeth. So how can both be achieved? Will overrun courts and judges be willing to sacrifice avoiding delay on the altar of justice?

I emphasise that it is 5 pm on the day that this very long judgment has been published. These are my very rough and preliminary musings about what comes next. I do not have a crystal ball, and it must be said that I am largely cynical about the ability of the family justice system to function in a climate of scarce resources and sticking plasters. However, what will be interesting is the same post in six months’ time, when we can truly assess whether Re H-N changed the system for the better, and the effectiveness of other reforms that have been long in the pipeline.

See you then, I hope.

Jack Harrison is on twitter as @FamilyLawJack.