Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448

The Law Society Gazette reported on 30th March 20121 the Court of Appeal  judgment in a groundbreaking case that is expected to inform the way family courts treat allegations of domestic abuse and coercive and controlling behaviour.

Two months after hearing four linked appeals related to family proceedings involving the welfare of children, Family Division President Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde published a 47-page judgment.

The appeal court was last asked to give general guidance on the approach to domestic abuse in child contact cases two decades ago. Practice Direction 12J was subsequently issued, setting out what the family court is required to do in cases where it is alleged or admitted that the child or a party has experienced domestic abuse or that there is a risk of such abuse.

The appeal court said PD12J remained fit for purposethe challenge related to its proper implementation. The court offered ‘pointers’ to those implementing the Domestic Abuse Act and any subsequent revision of PD12J. These include asking, in every case where domestic abuse is alleged, both parents 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.

The Scott Schedule is a schedule or table used in family court proceedings to set out the allegations in dispute. The court said there was ‘effective unanimity’ among the dozen oral submissions heard during the appeal ‘that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid’.

The judges concluded that ‘the process before this court has undoubtedly confirmed the need to move away from using Scott Schedules’.

The court said 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 on criminal law principles and concepts. ‘Family courts should avoid analysing evidence of behaviour by the direct application of the criminal law to determine whether an allegation is proved or not proved. A further example can be drawn where the domestic abuse involves violence. The family court may well make a finding as to what injury was caused, but need not spend time analysing whether in a criminal case the charge would allege actual bodily harm or grievous bodily harm’.

The court allowed the appeals in Re B-B, Re T and Re H-N and dismissed the appeal in Re H. The judges stressed that none of their decisions established ‘new law’.

In concluding remarks, the judges said: ‘Each of these appeals are examples in differing ways of the importance of the modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household. Training together with a proper application of PD12J largely ensures that such errors are the exception rather than the rule, but that that is the case does not lessen the impact on those individuals affected when things do go wrong.’

The judgment states that the appellant mothers had legal aid. The respondent fathers were represented by solicitors and counsel acting pro bono.

The judges said: ‘The court wishes to express its gratitude to all those who have acted pro bono which has also included many of the interveners. As a consequence of their willingness to act without payment, this court has had the inestimable advantage of hearing submissions made from all perspectives.’