Court of Appeal's decision

Court of Appeal's decision

Offers Guidance on the approach to Domestic Abuse in child contact cases

The Court of Appeal issued a judgment last month after hearing four linked appeals involving child contact and allegations of domestic violence by one parent against the other. The Court stated that abuse does not necessarily end with the termination of a relationship, and that incidents which happened in the past should continue to have relevance when assessing future risk of harm when they amount to a pattern of abuse. The judgment is particularly relevant as it addressed in detail issues such as the need for fact-finding hearings and how domestic abuse should be approached in them, the challenges presented by Scott Schedules and the relevance of criminal law concepts in family cases.

The Court highlighted that family judges should not be focusing on analysis of factual evidence that is, in fact, within the ambit of criminal law, such as the legal classification of injuries. It should also not treat each individual incident in isolation; instead, where the welfare of children is involved, the Court should consider patterns of coercive and / or controlling behaviour and their impact on the parents and the children, regardless of whether physical violence ever took place.

According to the judgment, children may be impacted by abusive behaviour in one or a combination of ways, such as: by being the victims or witnessing such abuse; by living in an atmosphere of fear and anxiety in the home; by being left aside due to one parent fearing the other; or by creating a notion of inferiority against women, especially if the child is a boy.

The burden to prove the domestic violence is on the party making the allegation, who must prove that, on the balance of probabilities, the occurrence of the event was more likely than not. If the Court is convinced of this likelihood, an order may restrict, or prohibit, contact between the abusive parent and their child. The Court of Appeal did recognise that the responsibility of deciding whether or not domestic abuse is to be considered as having taken place is never to be taken lightly, as it severely impacts the future of the parent-child relationship.

Domestic abuse is present is as many as 40% of private disputes involving child contact in Family Courts. Only in 2019/2020, the Courts received over 29,000 applications for injunctions in which an individual was seeking protection from domestic abuse. During the Covid-19 pandemic, calls and contacts to social workers supporting victim-survivors have increased 61%. Nevertheless, domestic abuse services have suffered severe cuts.

Domestic abuse is an area in need of careful consideration, great attention and much funding. Parliament is currently in the process of approving a Domestic Abuse Bill, which has been recently returned to the House of Lords after the House of Commons disagreed with the Lords’ amendments. Once the bill becomes an act, the Practice Directions 12J, which gives guidance on cases of child arrangements and contact orders involving domestic abuse and harm – and which has been the basis for the judgment by the Court of Appeal, will have to be updated. Therefore, it will be important to consider how this decision will be applied in light of the new regulations and if future cases will have to fill the gaps.