The long-awaited judgment of Re H-N and Others (children) (domestic abuse: finding of fact hearings)  EWCA Civ 448 was delivered on 30 March 2021.
The case has been highly anticipated by family practitioners on the issue of how the family court deal with domestic abuse in private proceedings.
The COA heard 4 appeals from orders made in private law Children Act 1989 proceedings, all of which involved allegations of domestic abuse. The Court granted intervener status to 4 interested parties in anticipation of the importance of this judgment, those parties being Cafcass (First Intervener); Rights of Women, Women’s Aid Federation of England, Welsh Women’s Aid and Rape Crisis England & Wales (Second Intervener); Families Need Fathers (Third Intervener); and The Association of Lawyers for Children (Fourth Intervener).
Why is the case so significant?
The figures attest to the importance of the Judgment. Most, if not all family practitioners will deal with cases involving domestic abuse on a regular basis- “it is thought that at least 40% of private law children cases now involve allegations of domestic abuse”(Paragraph 3).
The court took the opportunity to give guidance about a number of matters which commonly arise in the family court in such cases namely:
- -Whether there should be a finding of fact hearing;
- -The use of Scott Schedules in private law proceedings;
- -The approach to controlling and coercive behaviour; and
- -The relevance of criminal law concepts in private family proceedings.
- The COA limited its guidance as there are a number of recommendations currently being implemented with regards to the approach to domestic abuse in private law proceedings following 2 reports: Ministry of Justice Report of June 2020: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’) and the President of the Family Division’s ‘Private Law Working Group’ report dated 2 April 2020. (“the Reports”). The Domestic Abuse Bill is also currently before Parliament.
In this article, I will not go through the facts of the individual cases involved or their outcomes but will focus on the guidance set out and its relevance for practitioners.
Guidance: Whether there should be a finding of fact hearing.
The judgment explores the Family Proceedings Rule 2010: Practice Direction 12J- Child Arrangements and Contact Orders: Domestic Abuse and Harm (PD12J) which sets out what a Court is required to do in domestic abuse cases. Family Judges and Magistrates have a responsibility at an early stage of proceedings to decide whether or not it is necessary to conduct a fact-finding hearing and, if so, which allegations should be the focus of the fact-finding exercise.
It was accepted by the COA that PD12J remains fit for the purpose of recognising all forms of domestic abuse and how to approach such allegations in private law proceedings. However, difficulties arise in the interpretation and implementation of PD12J with particular reference to controlling and coercive behaviour (paragraph 28).
Paragraph 37 of the judgment, details the proper approach to deciding if a fact-finding hearing is necessary, proportionate and in accordance with the overriding objective:
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’.”
Within their submissions, Cafcass emphasised the need for active involvement prior to the determination of whether or not a fact-finding hearing is necessary rather than the current system of a ‘Letter to the Court’ which at times constitutes a ‘sub-optimal’ level of involvement (paragraphs 38-39). The Court accepted this submission and in paragraph 40, recommended that close consideration of this suggestion should be given by those who are charged with reviewing PD12J. Cafcass’s proposal was that in some cases this may involve the Judge directing that Cafcass undertake an enhanced form of safeguarding assessment at an earlier stage of proceedings.
Guidance: The use of Scott Schedules in private law proceedings
In paragraph 43, all appellants, parties and interested parties agreed that the current use of Scott schedules in domestic abuse cases is problematic and some further described them as ‘a potential barrier to fairness and good process, rather than an aid’.
The primary concern comes from the need for the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents tied to dates and times The secondary concern, is not unrelated to the first concern but involved the parties needing to limit allegations to a specific number which may be further reduced at subsequent hearings. The COA accepted that if that a reduced number of allegations are proven as facts, there is a risk that only those facts proven upon may be those which any adverse assessment of the perpetrator’s future risk falls to be made. Such reduction may inhibit the Courts ability to view the perpetrators behaviour as a pattern (paragraph 46).
Whilst the Court confirmed the need to move away from using Scott Schedules, the COA declined to provide specific guidance on what written mechanisms may be used to replace Scott Schedules, instead highlighting that the Private Law Working Group together with The Harm Panel’s implementation group final recommendations may lead to changes to the FPR or to the issuing of fresh guidance through a new Practice Direction.
Guidance: Cases involving coercive and controlling behaviour
The COA found that the definition of ‘domestic abuse’ in PD12J recognises that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse (paragraph 31).
The recent Judgment of Hayden J in F v M  EWFC 4 was endorsed by all parties and the Court of Appeal found those endorsements to be fully justified and cited the central paragraphs as;
“The nature of the allegations included in support of the application can succinctly and accurately be summarised as involving complaints of ‘coercive and controlling behaviour’ on F’s part. 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.” (Paragraph 29)
The Court of Appeal found the Judgment of Hayden J in F v M to be essential reading for the Family Judiciary and;
“of value both because of the illustration that its facts provide of what is meant by coercive and controlling behaviour, but also because of the valuable exercise that the judge has undertaken in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. That guidance is relevant to the evaluation of evidence in the Family Court”(Paragraph 30)
What approach should the Court take when coercive and controlling behaviour has been raised as an issue?
The COA was concerned that if Courts have to consider whether there was a pattern of controlling and coercive behaviour and determine specific allegations, it will take Courts longer to get through cases. Guidance is provided at paragraphs 56-59 of the judgment:
It is the responsibility of each individual Judge to set a proportionate timetable and maintain control of the court process when a fact-finding hearing has been found to be necessary (Paragraph 56)
Where an alleged pattern of controlling or coercive behaviour is to be determined, and this is the Courts primary focus, the need to determine date-specific factual allegations will cease to be ‘necessary’ – unless any particular factual allegation is so serious that it justifies determination (Paragraph 56)
Paragraph 58 provides further guidance:
PD12J is focused on determining domestic violence in the context of ‘child arrangements and contact orders.
Paragraph 16 of PD12J is clear as to when a fact-finding hearing is needed to provide or consider a report, assessment or order it is deemed to ‘necessary’;
To provide a factual basis for any welfare report or other assessment;
To provide a basis for an accurate assessment of risk;
To Consider any final welfare-based order(s) in relation to child arrangements; or
Consider the need for a domestic abuse-related activity.
Where a fact-finding hearing is ‘necessary’, only those allegations which are ‘necessary’ to support the above processes should be listed for determination;
In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other.
Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed and a fact-finding hearing is deemed as necessary, that assertion should be the primary issue for determination at the fact-finding hearing.
Any other factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour unless the allegation is so serious that it justifies determination irrespective of an alleged pattern of coercive/ controlling behaviour (e.g. rape) (Paragraph 59).
Guidance: The relevance of criminal law concepts in private family proceedings
The COA was clear that criminal matters have a different scope and purpose to family matters, however domestic abuse will be capable of both being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures. However despite this, the COA endorsed the correct position as outlined in Re R (Children) (Care Proceedings: Fact-finding Hearing)  EWCA Civ 198 where Gloster, McFarlane and Hickinbottom LJJ, held that it was fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts (Paragraph 62).
The judgment makes clear a Family Judge making a finding on the balance of probabilities is not required to decide, and does not decide, whether a criminal offence has been proved to the criminal standard, however the family court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict (criminal) definitions of ‘rape’, ‘murder’, ‘manslaughter’ or other serious crimes. This however does not mean that the Family courts and the parties who appear in them should shy away from using the word ‘rape’ in the general description of non-consensual sexual assault.
The wider evolution away from Scott Schedules and the impact of the reinforced Judicial recognition of coercive and controlling behaviour in family cases is now an interesting and developing area for family practitioners.
Olivia Edwards is a member of the Family Department at 18 St John Street Chambers. For more information, please click the links highlighted above or contact a member of the family clerking team on 0161 278 8263 or via email firstname.lastname@example.org