Case Summary: Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 written summary by Joshua Haran (pupil)
CASE SUMMARY: Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448
INTRODUCTION
Controlling and coercive behaviour has once again come to the forefront of the Court’s attention in relation to private law Children Act proceedings. The Court of Appeal has given significant guidance on how the Family Courts are to deal with allegations of domestic abuse by moving away from focussing on specific allegations, to instead focus on the wider context illustrated by patterns of behaviour.
It is important to clarify that although the principal focus of the court was on controlling and coercive behaviour, the observations made apply equally to all forms of abuse where a patten of incidents is alleged.[1]
As recognised by the court, determining allegations of domestic abuse is at the very core of the work of the Family Court,[2] therefore, its decision is of particular significance.
CONTROLLING AND COERCIVE BEHAVIOUR
Prior to tackling the issues considered by the court it must first be highlighted that none of the submissions to the court suggested that the current definition of domestic abuse in PD12J required major amendment.[3] The court also noted that definition of domestic abuse in the Domestic Abuse Bill currently before Parliament is substantially the same as that in PD12J.[4] As such the court came to the opinion that PD12J is and remains fit for purpose.[5]
The court did not provide a specific definition of controlling and coercive behaviour. Instead, the court deferred to Hayden J’s judgement in F v M [2021] EWFC 4 (Fam) where he set out the following:
“In the Family Court, that expression is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘a series of acts’, the impact of which must be assessed cumulatively and rarely in isolation.”[6]
For further consideration of the case of F v M follow this link: Getting off Scott free?
THE ISSUES BEFORE THE COURT
The court at the outset made clear that due to the number of initiatives currently reviewing how domestic abuse allegations are dealt with in private law proceedings its focus was limited to “offering guidance on those matters which are most directly relevant to the court process.”[7] That being said the court set out four issues for consideration:
i. Whether there should be a finding of fact hearing;
ii. The challenges presented by Scott Schedules as a means of pleading a case;
iii. If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?
iv. The relevance of criminal concepts.
The need for a fact find?
In paragraph 37 of the judgement Lady Justice King and Lord Justice Holroyde set out a four-stage approach to deciding if a fact finding necessary, as follows:
i. “The first stage is to consider the nature of the allegations and the extent to which it is likely to be relevant in deciding whether to make a child arrangements order and if so in what terms (PD12J.5).
ii. In deciding whether to have a finding of fact hearing the court should have in mind its purpose (PD12J.16) which is, in broad terms, to provide a basis of assessment of risk and therefore the impact of the alleged abuse on the child or children.
iii. Careful consideration must be given to PD12J.17 as to whether it is ‘necessary’ to have a finding of fact hearing, including whether there is other evidence which provides a sufficient factual basis to proceed and importantly, the relevance to the issue before the court if the allegations are proved.
iv. Under PD12J.17 (h) the court has to consider whether a separate fact-finding hearing is ‘necessary and proportionate’. The court and the parties should have in mind as part of its analysis both the overriding objective and the President’s Guidance as set out in ‘The Road Ahead’.”[8]
In keeping with the approach laid out above the court made abundantly clear that fact finds are only to be used where necessary, to ensure that procedural proportionality is maintained at all times, both before and during any fact find.[9]
Additionally, it seems that Cafcass involvement in gatekeeping decisions of the court is set to increase. During submissions Cafcass contended that:
“The present system was ‘suboptimal’ and that, rather than a gatekeeping judge simply allocating a case for a factfinding hearing without any social work input other than the Cafcass ‘safeguarding’ letter, the judge should direct that Cafcass undertake an enhanced form of safeguarding assessment (including where appropriate meeting the child) prior to the case being listed for a second gatekeeping appointment, with any resulting listing decision being made on a more informed and child-centred basis.”[10]
Whilst the court did not give any judgement on the point it did give credence to it by stating that the suggestion justifies close consideration by those who are charged with reviewing PD12J.[11]
The end of the Scott Schedule?
Key to the judgement of King LJ and Holroyde LJ was the endorsement of the move away from Scott Schedules, which focus almost solely on specific factual incidents. From the represented parties the court heard a unanimous voice on the point that the value of Scott schedules in domestic abuse cases had declined so significantly as to become a potential barrier to fairness rather than an aid.[12]
Two main submissions were put forward in support of this. Firstly, it was submitted that there was a need for the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, rather than a list of specific factual incidents. The importance of this stems from the cumulative impact coercive and controlling behaviour can have upon its victims which is unidentifiable by simple reference to separate and isolated consideration of individual incidents.[13]
Secondly, the advocates put forward that Scott Schedules further inhibit the courts view due to the need the limit allegations. It was said that this process of selection further reduces the focus of the hearing. By way of example in one of the appeals the before the court the parties were required to limit the allegations to ten and this was further reduced by the trial judge to three. If an applicant such as this succeeds in proving the three allegations it was submitted that there is a risk the court will only consider those matters proved and, therefore, take only those matters into account when deciding any future risk the perpetrator poses. It was alleged that the court in doing so has “robbed itself of a vantage point from which to view the quality of the alleged perpetrator’s behaviour as a whole and, importantly, removed consideration of whether there was a pattern of coercive and controlling behaviour from its assessment.”[14]
The court confirmed that there was a need to move away from using Scott schedules, however, did not outline how this was to be done. Rather, the court stated that such a change would be best brought about by new guidance or rule changes.
How should an allegation of domestic abuse be approached?
In agreeing with the submission that the majority of domestic abuse is underpinned by coercive control the court took the view that whether the evidence establishes a pattern of coercive and/or controlling behaviour is to be the primary question in cases where there is an allegation of domestic abuse. The existence of any such pattern will then play a significant role in any risk involved in continuing contact.[15]
However, the court has not given free rein to raise coercive and controlling behaviour as well as date specific allegations. In general, the need to determine date-specific allegations will not be considered necessary where the primary issue is whether there has been a pattern of coercive and controlling behaviour. Any other more specific allegations are only to be tried where they are of probative relevance to the alleged pattern of behaviour, or where they are so serious that they justify determination irrespective of the primary issue.[16]
Relevance of criminal law concepts
In line with past caselaw on this point the court held that criminal concepts are not to be imported into the Family Courts. However, that is not to say that parties should shy away from using words such as rape as used in their ordinary sense, only that courts should not become entangled in the process of determining whether a party’s actions meet the criminal test when deciding whether an allegation is proved or not. For further illustration, the court stated that while findings as to what injury was caused may be made it is not necessary to determine whether in a criminal case the charge would allege ABH or GBH.[17]
CONCLUSION
The Court of Appeal has given several key points of guidance which will set the course for the handling of allegations of domestic abuse in the Family Court for some time to come. Firstly, the court has once again emphasised that fact finds are only to be used where necessary and relevant to any Child Arrangement Order that is to be made. Where a fact find is needed to determine allegations of domestic abuse, front and centre to any hearing will now be the concept of patterns of coercive and controlling behaviour. This issue, where raised, is to be the primary issue considered by the court, as opposed to specific allegations of domestic abuse. The benefit of this will be to allow the courts to obtain a view of the whole context of parties’ relationships, and where an allegation of a pattern of behaviour is made out, to ensure the entirety of the harm this has and could cause is considered in any subsequent order. As a consequence, the utility of Scott Schedules which by their very nature focus the court’s mind on specific allegations as opposed to patterns of behaviour, has been called into question. Significant reform is, thus, on the horizon.
Joshua Haran
Pupil Barrister.
