This is part 3 of a series of posts about the four conjoined appeals. You can read part 1 here and part 2 here.

This post tackles the wider issues of principle that were considered in the course of the appeals, and at the end will provide some materials for further reading.

The wider issues of principle

By order made by Lady Justice King at some stage before the appeal was heard, five issues of principle had been identified :

  1. How and when fact-finding hearings should take place
  2. The treatment in the family courts of marital or partnership rape and in particular whether the family court is bound to analyse factual issues in the context of the criminal law
  3. The treatment of coercive and controlling behaviour in the family courts
  4. How Practice Direction 12J is to be applied, together with Practice Direction 3AA where appropriate
  5. Following a fact finding hearing, the proper approach in private law proceedings where
    • There have been findings of domestic abuse
    • Allegations of domestic abuse have been dismissed.

We know this was the framework set out by the court because a number of the skeleton arguments (See definitions in part 2) respond to the issues as identified in the order, and are structured against these headings. Those five headings give us some idea of what the Court of Appeal is considering giving guidance on.

Both in the written submissions and the oral arguments, these five issues tended to be taken or blended together, and we noted some other specific themes in the course of the hearing :

  • there was some debate around the use of terminology, the importance of language and the question of shared meanings
  • there was an emphasis on the need to (re)focus on the impact of behaviours more than their labels
  • there was an emphasis on the need to consider patterns and context rather than specific incidents – much of this was centred around the debate about Scott Schedules (See definitions in post 2), whether they should be used at all or replaced – and if so with what, and how they should be used to the extent they were helpful at all
  • There was an undercurrent concerning cultural issues, attitudes towards women, and various myths and prejudices
  • There was considerable discussion of how certain aspects of the early stages in the court process might be improved to assist in case management and ensuring safety
  • There was some limited flagging of potential issues around whether the legal aid system had contributed to a scenario where lawyers were ill equipped to meet the demands of the cases they were covering
  • there was some attention paid to the topic of judicial training and its adequacy, in particular around rape myths, vulnerability and trauma
  • there was considerable debate concerning the proper approach to inconsistent accounts or late complaints by victims in the context of potential fear, trauma, stigma and shame in contrast to the traditional approach to the assessment of credibility and reliability of witness evidence
  • there was some discussion of the chronic delays in the current system, particularly at the current time and in cases involving serious allegations of domestic abuse, and the harmful consequences of this for all involved

It may be apparent from the length of this list that we probably can’t do justice to each and every one of the themes and topics covered in this hearing and in the documents. We aren’t going to try and summarise every party or intervenors position on every issue, but instead we will try to give a flavour and an overview, and will try and pick out particular areas of consensus or contention. It is likely that some of the above themes will be summarised in the judgment to a greater or lesser extent in due course and on reflection we think it is more helpful to give an overview now and to summarise the judgment, the outcome on the individual appeals, the issues it addresses and the guidance it gives when the detail is known.

Domestic abuse as patterns of behaviour – the use of Scott Schedules

A large part of the submissions were taken up in discussion of the need to approach domestic abuse by looking at whether there are patterns of behaviour, rather than focusing on specific ‘big’ incidents taken in isolation. All the appeals involved allegations of rape or sexually abusive behaviour and the thrust of the appellant’s arguments were that such acts were part of broader patterns of controlling, coercive or abusive behaviour – and that whilst a rape specifically may not have directly impacted on a child, such behaviour might illustrate and lend weight to more diffuse allegations about controlling behaviour that may well have impacted on the child (and of course even infrequent individual incidents of sexual or physical assaults might make apparently insignificant or trivial non-violent behaviour more meaningful to the person on the receiving end of it). Broadly, those representing the fathers acknowledged the need to look for patterns of behaviour or their absence in trying to work out if allegations were true and if so what their relevance was.

There was significant criticism of the use of Scott schedules as a case management tool for capturing allegations of domestic abuse, particularly where these were capped at a maximum number of allegations – but whilst everyone seemed to acknowledge their limitations there wasn’t a complete consensus that they should be abandoned altogether. One or two of the fathers’ representatives in particular indicated that they did still have utility in some cases, and could be a helpful way of marshalling the issues.

Other lawyers suggested various alternatives – some suggested a ‘threshold style’ document. It was difficult to work out exactly was proposed here or how it would really differ from a schedule – a threshold document is a document prepared at the start of care proceedings by the local authority who is bringing the case, in order to set out what facts are relied upon to prove that the case meets the threshold of being serious enough to possibly result in a care or supervision order i.e. what it is said caused or gives rise to a risk of significant harm to the child. There is no legal ‘threshold’ to consider in private law proceedings, but threshold documents do tend to be drawn up in a style that groups different types of allegedly harmful behaviour together and gives examples of them. What seemed to gain most support during argument from lawyers and the court was the way in which a threshold document links facts to be proved to the impact on the child (‘significant harm’ or ‘risk of significant harm’ in public law cases). Most lawyers seemed to agree that there should be some form of written document which set out the range of allegations in the case and which specifically told the court what impact that behaviour had had on the child or what impact it might have on the child (eg a risk of harm).

From my experience, I have to say however, that a well drafted Scott Schedule will incorporate the alleged harm in the wording already. I also wasn’t at all clear how a litigant in person, particularly one with literacy difficulties, or who is still on a journey of understanding their experience as rape or abuse, who may not yet fully understand the potential harmful impact of such behaviour on their child, or who simply a lack of familiarity with the nature of children proceedings – could be expected to prepare such a document.

There wasn’t a complete consensus on how often there should be a fact finding hearing. Some argued for there to be a fact finding hearing wherever there were allegations of domestic abuse i.e. always, whilst others argued for a fact finding hearing only where such allegations were likely to inform the welfare decisions (again, going back to impact on the child) i.e. sometimes.

What was interesting about this and the other aspects of the discussion on the guidance issues was how heavily the submissions depended upon on the expertise of the legal teams involved rather than their lay clients. Not in relation to the interveners who were making submissions primarily based upon the expertise and instructions of their instructing organisation, but in the case of the eight legal teams representing the parents in the four cases – the Court of Appeal was inviting and receiving input from Queen’s Counsel based upon their direct experience and expertise as senior advocates – what happens in this type of case, what might work better, how should a judge deal with this sort of problem, what tends to be the result of that type of approach in practice, why shouldn’t a judge do such and such etc. None of which were issues that the individual lay clients (the mothers, the fathers) could assist on or would be likely to have a view on. Whilst each senior barrister speaking was supported by a junior barrister and solicitor, it was notable that the actual advocates answering the questions did not regularly dealing with the sorts of cases and issues that came up in the appeals because of their level of seniority. This was acknowledged at times by the lawyers themselves, where one Queen’s Counsel or another would say well of course they no longer did work before Magistrates or that they were more used to dealing with fact finding hearings before a High Court Judge with a very long time estimate. The judges for their part were keen to remind themselves of the realities at the coal face even though they were very far from it, and the Queen’s Counsel drew at times on the experience of the more junior members of their team.

The role of the judge in the real world

Leading on from that, there were a number of points in the course of the hearing where the judges drew discussion back to the brutal reality of the challenges faced by judges at the coal face, and in particular that a significant number of cases were (and would continue to be) dealt with at District Judge and Magistrate level (remembering that Magistrates don’t have legal qualifications), and that everything was being done under immense pressure. There was a lot of exploration of how proactive a judge should be, how proactive it was realistic to expect a judge to be – in terms of identifying vulnerability and appropriate participation directions, in teasing out even whether someone might have been a victim of abuse which they had not realised was abuse, in prompting the gathering of evidence.

This took the form of the advocates being asked how far they said a judge is expected to go, and pressing advocates on what they really meant when saying the court should be ‘inquisitorial’ (something we don’t think was really made clear by anyone – or at any rate there was no consensus).

There was a lot of discussion about the importance of evidence gathering and issue identification at the early stages of the court process, and about how improvement of court forms and more involvement from Cafcass at an early stage might play an important part in that. Whilst Cafcass made proposals for adjustments to reform of the early stages of the court process which would have involved more front-loading of their input, which on one level was surprising given the significant resource pressure they are currently under and their general tendency (in my experience) to want to get in, get out and move on to the next case.

Voice of the child

A final point to flag is the emphasis on the need to capture and focus on the voice of the child more effectively – to refocus on child impact and child welfare as the central purpose of fact finding and of proceedings generally, to involve child child and gather their lived experience and views from the very start of the process and to consider the relevance and impact upon them of domestic abuse experienced by their carer or witnessed by them.

As part of this topic some consideration was given to the representation of more children through a guardian and lawyer in domestic abuse cases. There did not seem to be a clear consensus on this amongst the parties and intervenors, and there are obvious resource issues associated with it, particularly for Cafcass and legal aid – although one might have thought there was potential for net savings as a result of increased efficiency.

By way of context, issues concerning childrens’ evidence and input in proceedings has been the subject of a working group in the past, the recommendations for which were not fully implemented due to – you guessed it – resource issues, and one of the recommendations of the harm report was that greater efforts needed to be made to promote the voice of the child in private law proceedings.

What can the Court of Appeal do about all this?

As we’ve identified, there were a number of moments during the appeal when the aspirations of the appellants and their legal teams bumped up against cold hard reality. There are three main constraints on what the Court of Appeal can be expected to do to fix the problems identified by the parties through these appeals.

Others hold the purse strings

Firstly, judges don’t have a pot of money they can use to fund reform, they have to work with what they have got, which is : too many cases, not enough people or time – and a system which is heavily dependent on magistrates who have no legal training. If we wanted our family court judges to be truly ‘inquisitorial’ in the sense of proactively gathering their own evidence and taking the lead in investigations, rather than ruling on the evidence presented to the court as at present, this would require funding and a team to support the judge. So the Court of appeal can’t fundamentally alter the way the Family Court is doing its job because it doesn’t have control of the magic money tree.

If the Court of Appeal is to issue guidance it will have to make it capable of being both understood and applied in real courts, by real judges and magistrates who have too much on their plates, and with the same resources. It cannot magic up more people, time or money. And it has no direct ability to magically increase the expertise levels across the judicial pool. The potential for improving training for magistrates is likely to be pretty limited on any basis – they are volunteers, their training is not covered by the Judicial College – and the courts in any event cannot directly intervene and dictate what training should be provided (although one of the Court of Appeal Judges, King LJ happens to be the head of the Judicial College – and she was keen to lay to rest concerns that judges were not offered appropriate training in respect of consent and domestic abuse matters). And since the system cannot function without a large number of cases being dealt with by magistrates this is likely to mean guidance must be succinct, clear and simple rather than legally complex, technical or over-demanding.

Practice Directions like the ones under discussion in this appeal run alongside the main Family Procedure Rules and are made by the President and authorised by the Lord Chancellor following consultation with the Family Procedure Rule Committee. The President is chair of that committee so would be able to push through amendments to these practice directions if the Court of Appeal is persuaded that the process they describe is not working right, or that the guidance in them needs adjusting. However, that would usually be subject to the committee process and any rewrite of the Practice Directions won’t happen overnight. Any judgment would most likely give broader guidance in principle and indicate a need or intention to consider certain reforms to the Practice Directions through the committee process, with guidance about how lawyers and judges should deal with things in the meantime.

Parliament is boss

Secondly, the courts are constrained by Parliament. Some aspects of submissions attempted to flag problems with primary legislation – in particular the ‘presumption of parental involvement’. That is a piece of law which is current under review following the Harm report but, as the President made clear in the course of the hearing, until or unless the law is changed that is the law that the courts have to apply. And any guidance has to fit in line with that law. It’s worth saying by the way that the law and practice in this area doesn’t just derive from the presumption of parental involvement in s1 Children Act, it also derives from the court’s duties to protect the parties’ Article 8 rights in the European Convention on Human Rights and Human Rights Act 1998. The Court of Appeal might be able to clarify the circumstances in which, with regard to PD12J the court is entitled to dis-apply the presumption, although it doesn’t appear that any of the individual appeals directly involved a specific decision based on the presumption itself. And again, decisions about fundamental changes to how the court operates such as moving to a fully inquisitorial model are so significant (because of their political and financial implications) that they are mattes for Parliament or for Government to decide upon and implement. Many of the areas for structural reform that were touched upon in the course of the appeals are indeed under active consideration in light of the Harms report, but whilst the Court of Appeal might give an indication of what might be welcome and helpful, it cannot actually direct these changes.

A number of the advocates in the case had exchanges with the court in which they were reminded of these limitations, and gracefully acknowledged the position – whilst gently requesting that the court might feel it appropriate to say a few words in support of a particular idea. So, there is a sense in which these appeals were clearly performing a political function, even as the judges themselves are remaining firmly apolitical – potentially through some supportive judicial remarks in the course of the judgment, but probably more importantly by publicly airing the arguments that the groups involved in pushing for reform in this area are making in a range of other fora, including through Parliament, social media and the mainstream media.

Supreme Court is ‘line manager

Thirdly, the Court of Appeal is bound by decisions of the Supreme Court (and its predecessor court the House of Lords), and is therefore unlikely to abandon core basic principles around the burden and standard of proof where there are disputed facts that need to be determined.

The judgment is expected in a few weeks time. We will post link to it once it is published and summarise it in a separate post.

Further reading and resources

You can find links to the live tweets of the hearing at the foot of part 1.

Joshua Rozenberg : What does domestic abuse look like?

The Times : Judge’s ‘outdated’ views lead to more rape appeals (£).

Louise Tickle’s article about the appeals for Family Law : A system that re-abuses victims is not a system fit for purpose

The Guardian : Landmark hearing to examine handling of domestic abuse cases by courts – Family lawyers hope test appeals involving allegations of partner rape and coercive control will help update approach of family courts

Domestic Abuse – The Warm up Act? (our post about the coercive and controlling behaviour case dealt with by Hayden J and which was commended to the Court of Appeal by a number of advocates during the hearing (to the point where the President joked that Mr Justice Hayden would now be ‘insufferable’ if he ever read a transcript of the hearing!).

The Harm report

Posts on the harms report here here and here (with links to the actual report within).

The Family Justice Board Statement on the Harm report and the implementation plan.

Private Law Advisory Group Final Report Dec 2020

Our post about the Family Justice Council Debate on these issues in December 2020 (with link to transcript and audio).

Julie Doughty’s recent post about the Domestic Abuse Bill, which is currently in Parliament.

Lucy Reed’s post on a related topic (domestic abuse and financial remedy proceedings on divorce).

Details of the new Justice Working Party on Improving Access to Justice for Separating Families [disclosure, the author of this post is a member].

Feature picture of the Royal Courts of Justice : image by piqsels

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