In a conjoined appeal, four mothers argued at a rare public hearing that the Family Court minimised allegations of domestic abuse and adopted victim-blaming attitudes and rape myths. The four appeals involved proceedings in which at least one parent made allegations of domestic abuse against the other parent.

Such cases are far from rare. Around 40% of ‘private law’ children cases in family courts involve allegations of domestic abuse. In 2019/2020 that amounted to around 22,000 cases. In addition, there were 29,285 applications in 2019/2020 for injunction orders under the Family Law Act 1996 in which protection was sought from domestic abuse.

In HN and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 (30 March 2021) the Court of Appeal (President of the Family Division, Lady Justice King and Lord Justice Holroyde) set out general guidance for the Family Court to consider when addressing these allegations and risk of harm to a child and parent.

The Court of Appeal stated at the outset of the judgment that they were limited to the extent to which they can give general guidance because of the initiatives already in train by the government [§2, 19-22]. Government initiatives follow the Ministry of Justice’s ‘Harm Report’ published in June 2020 which found that abuse was systematically minimised or dismissed, children’s voices were not heard, there was a pro-contact culture that facilitated unsafe contact arrangements and traumatic and re-traumatising court processes in which abusers continue to exert their control. The panel made a series of recommendations to be taken forward by the family justice system. The government is due to consult again about amending the presumption of parental involvement in s 1(2A) Children Act 1989, which, according to the Harm report, ‘reinforced the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety’ (p 174).

In addition, the Domestic Abuse Act 2021 has made changes to the family justice system including banning cross-examination by alleged perpetrators of complainants of domestic abuse and defining children in abusive households as victims. This author worked closely with Peers in the House of Lords and the London’s Victim’s Commissioner to help draft an amendment calling for regular, mandatory training for family judges on all forms of abuse. Unfortunately this was not adopted by the government.

Family Court failings

The failure of the Family Court in identifying the harm caused to children and parents by domestic abuse was made plain in the judgment of Ms Justice Russell who upheld an appeal of HHJ Tolson QC’s fact-finding decision in which he had dismissed the mother’s allegations of abuse. The case of JH v MF [2020] EWHC 86 (Fam) has likely become one of the most read and cited cases of 2020. HHJ Tolson QC held that the mother had not been raped by the father: ‘My concern about this occasion centres on the idea that the mother did nothing physically to stop the father’ [§36]. Ms Justice Russell makes plain that ‘this judgment is flawed’ [§37] and called for judicial training in ‘serious sexual assault where issues of consent are raised’ [§59]. At a re-trial before Mrs Justice Judd in C v D [2020] EWFC 83, the mother proved the majority of her allegations including of sexual assault and emotional abuse [§84].

General guidance in domestic abuse cases

Stating that there are a ‘low number of appeals’, the Court of Appeal failed to address some of the reasons for this, which include the short, 21-day time limit for often traumatised victims to launch an appeal alongside the challenges of obtaining legal aid. The court did, however, address the following four issues and highlighted the importance of judges complying with Practice Direction 12J in domestic abuse cases:

  • The court acknowledged the importance of judges reflecting on whether fact-finding hearings are necessary in light of the welfare issues involved.
  • The court agreed that Scott Schedules, which list the allegations of domestic abuse, had potentially become a barrier to fairness; rather than addressing a pattern of behaviour, judges were wrongly focusing on an arbitrary number of allegations confined to a list.
  • The court acknowledged that the modern definition of domestic abuse must include the concept of coercive and controlling behaviour. For example, it is important for judges to address whether such abuse: ‘Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child’ [31(iii)].
  • The court also identified that historical allegations of abuse are relevant to assessing the child’s welfare. Simply dismissing allegations because they are ‘old’ is to be ‘considered ‘old fashioned’ and no longer acceptable’ [§52].

While it is important not to underestimate the progress made, there were a number of missed opportunities. The Court of Appeal refused to adopt the criminal definition of rape [§60]. Failing to apply criminal law concepts to rape, even in respect of ‘consent’, will inevitably mean the status quo prevails in family courts. Judges are left to decide the issues in each case without any guidance from the courts above. The Appeal Court missed an important opportunity to address the common occurrence of mothers being cross-examined about their sexual history, past relationships and medical history because it was ‘beyond the scope of this judgment’. Using victim’s medical notes and sexual history against victims is a form of is abuse. This is another struggle we must not give up on.

The four individual appeals

Turning to the four appeals, the court’s decision was as follows: Re B-B, Re H-N, Re T were allowed and Re H was refused.

Re B-B: allowed

In this case, the mother appealed the making of a consent order for contact with the father on the basis that HHJ Scarratt failed to address the unresolved allegations of serious domestic abuse including rape – and the undue pressure that the judge put on the mother to accede to the consent order [§83]. The comments made by the judge include: ‘the Judge said that ‘if this goes on the child will be taken into care and adopted’. Unsurprisingly, the mother became deeply distressed and can be heard crying on the tape’ [§93]. The court held that the mother’s consent to enter into a child arrangements order for contact was not free and full, ‘It is hard to imagine a more serious and frightening prospect for any mother, let alone a young, single mother, than that of having her child taken off her and placed for adoption’ [§110].

Re H: refused

The mother appealed against HHJ Tolson QC’s decision that the allegations of rape and domestic abuse were ‘not proven and did not happen’ [§116]. The court refused the appeal on the basis that it was academic [§151]. Contact was taking place between the child and the father for seven hours each fortnight. The mother asserted that if contact increases, as sought by the father, so does the risk to the child, thus it is imperative to properly investigate her allegations.

It is important to review some of the trial judge’s comments in the original judgment of H v C (Fact finding) [2019] EWFC B94. ‘Only one allegation by the mother involves K herself, and that indirectly, because it is said that in the aftermath of the second alleged rape incident the father was guilty of a physical assault on the mother, banging her head against a cupboard door. This took place in the presence of both of the young children. It seems to me, however, that I should be very slow to infer from this that there is any direct risk to the child herself’ [§7]. It is surprising that the judge fails to understand the nexus between physical abuse towards a mother witnessed by a child and risk of harm to the child by the father. The court’s failure to address the risk of harm that flows to a child was a missed opportunity.

Re H-N: allowed

This was another appeal of HHJ Tolson QC’s fact-finding judgment, Re H (A Child) [2020] EWFC B63. The mother in this case had made allegations of rape, domestic abuse and coercive control, which were dismissed by the trial judge. The Court of Appeal held that a man slapping a woman who is heavily pregnant cannot be held as ‘trivial’ [§202]; the trial judge failed to consider the father’s admissions of violence and discounted them [§204, 219]; the trial judge’s response minimised the allegations and admissions made by the father of abuse.

Re T: allowed

The mother had made allegations of coercive control, domestic abuse and anal rape against the father. Surprisingly, HHJ Evans-Gordan’s trial judgment has not been published, despite the trial judgments in the other appeals having been published. The court refused the mother’s appeal in respect to the allegation of anal rape on the basis that ‘the first instance judge had the advantage of seeing the parties give evidence’ [§163]. This could not have been a clearer example of rape – anal sex was ‘not necessarily something she wanted or enjoyed’ and the mother felt it was ‘her duty’.

The judge also found that the mother is ‘no shrinking violet’ because of her sexual history. The trial judge found that three allegations made by the mother had been proved [§164]. Namely, the father slapped the mother [§165], the father held the mother’s neck and used words to the effect that he would kill her but it was in anger and did not impact any genuine threat to life [§167], the father put a plastic bag on the mother’s head but it was just a prank [§169]. The trial judge found the father was not a violent man as portrayed by the mother and posed no risk to the child [§171].

The appeal was allowed because the judge failed to appreciate the seriousness of the two incidents where the father made reference to dying or to killing [§174]. The trial judge failed to consider whether her findings amounted to a pattern of coercive and controlling behaviour [§174, 178]. The father’s cross-appeal was refused.

Out of character or systemic failing?

In summary, the appeal decision is a step in the right direction and provides positive guidance on the approach to coercive control; that allegations cannot be reduced to an arbitrary number; historical allegations are relevant to assessing the risk of harm posed; Scott Schedules are largely redundant; and that domestic abuse is harmful to children and parents.

The court held that they are ‘are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the Family Court’ [§53]. This is contrary, however, to the Harm Panel’s findings in the MOJ Report of systemic failings in the family justice system. The appeal judgment shows that there is a pattern amongst Family Court judges of minimising serious allegations of domestic abuse, failing to identify patterns of behaviour and applying a pro-contact approach.