Re:N  EWCA Civ 785
Elizabeth Willsteed represents Respondent Children by their Children’s Guardian in Appellant Mother’s Appeal held 21st May 2021.
Re:N  EWCA Civ 785
Elizabeth Willsteed represents Respondent Children by their Children’s Guardian in Appellant Mother’s Appeal held 21st May 2021.
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The Court of Appeal has handed down judgment in 4 joined cases considering the approach of the Family Court to the issue of domestic abuse. In a case that attracted substantial comment in the media, and which was live tweeted to the public by legal bloggers (as well as being conducted entirely remotely on a live stream) the Conducted a wide-ranging review of the approach of the Family Court to cases involving Domestic Abuse.
For some time, there has been controversy about the perceived failure of the Family Courts to protect alleged victims of domestic abuse and their children from the dual harm of an abusive partner/parent and a traumatic court process. Some very public judgments criticising the way in which hearings were dealt with led to outrage in the media and wider public and, it must be said, to successful appeals and enhanced training.
Domestic abuse cases are far from rare. As the President observed, in 2019/2020 there were 55,253 private law children applications and at least 40% of them raised issues of domestic abuse. While the Court noted that the number of appeals in such cases is small it was still a cause of deep unease: in such cases the stakes are high but access to legal representation is limited since they were removed from the scope of legal aid by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). While each of the appellants (all mothers and alleged victims of some form of domestic abuse) had legal aid, none of the respondents (fathers accused of being perpetrators of that abuse) did, and all were represented by lawyers acting for free (pro bono).
Against this background Re H-N and Others (Children) (Domestic abuse: finding of fact hearings)  EWCA Civ 448 combined 4 different appeals against orders made by three different Circuit Judges into a single hearing. Various women’s rights organisations, Cafcass, Rape Crisis, Families Need Fathers and the Association of Lawyers for Children were all joined as intervenors. The Court roamed well beyond the facts of the individual cases and looked at the process, at Practice Direction 12J of the Family Procedure Rules 2010 which governs the procedure in domestic abuse cases, and at the wider approach to the fact-finding exercise.
All four appeals involved domestic abuse. In all four cases there were issues raised about the findings or lack of findings which were made, with criticisms including the manner in which the Judges had dealt with the alleged victims and the impact of coercive and controlling behaviour.
The developing attitude of the Courts to domestic abuse
Having set out the historical development of English law’s approach to domestic abuse, the Court turned to the issue of coercive and controlling behaviour. The President cited with approval the judgment of Hayden J in F v M  EWFC 4:
“4. …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. There has been very little reported case law in the Family Court considering coercive and controlling behaviour. I have taken the opportunity below, to highlight the insidious reach of this facet of domestic abuse. My strong impression, having heard the disturbing evidence in this case, is that it requires greater awareness and, I strongly suspect, more focused training for the relevant professionals.”
Coercive and controlling behaviour has been a central part of the definition of domestic abuse within PD12J for some years now and will be a familiar concept to anyone who practices in this area of law. The President acknowledged that:
“31… 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. In short, a pattern of coercive and/or controlling behaviour can be as abusive as or more abusive than any particular factual incident that might be written down and included in a schedule in court proceedings (see ‘Scott Schedules’ at paragraph 42 -50). It follows that the harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim.”
At the same time, the Court recognised that “not all directive, assertive, stubborn or selfish behaviour will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour”. No marriage is perfect, and where some bad behaviour is alleged which is not ‘used to harm, punish or frighten’ or make the victim subordinate it is unlikely to be relevant.
However, a failure to consider the potential impact of coercive and controlling behaviour, and to look at the allegations in the round to establish a pattern, led to two of the appeals against findings of fact to be upheld – an unusual outcome, as did an undue focus on the intention of the perpetrator as opposed to the impact of the behaviour on the victim in another.
The Court’s approach
The issue that the court sought to address in the context of coercive and controlling behaviour, however, was how to approach those cases where what is alleged is a pattern of behaviour which can be somewhat nebulous and not capable of summing up in a series of distinct index events. The Court routinely lists separate ‘fact-finding’ hearings to establish the truth or otherwise of allegations. Where there are specific and serious individual allegations of physical or sexual violence the approach is straightforward: set them out as if an indictment and then address them in turn. The allegations are often so serious individually that their relevance is obvious. Where coercive and controlling behaviour is alleged it is less straightforward. The incidents alone may be relatively minor, but together they have a cumulative affect over time. It was suggested that the standard practice was no longer fit for purpose in dealing with such cases.
The Court reviewed the guidance within PD12J on when it is appropriate to hold a separate fact-finding hearing in cases where domestic abuse is raised as an issue. The President observed that the Court should only determine those issues which it is necessary to determine in order to dispose of the case – there is not a right to litigate every issue which each party wishes to be heard. The proper approach to the decision on whether to hold a fact-finding is therefore (paragraph 37 of the judgment):
This is, essentially, a restatement of the law as it stands. It is obvious that some forms of behaviour will be highly relevant and should be at the centre of the Court’s consideration of risk. Identifying and addressing the risks posed by a range of abusive behaviours is key to child welfare. But it is equally obvious that the Court is not ‘a Court of morals’ in the position of passing judgment on every ill-considered or objectionable act by a party to a relationship which inevitably has fallen apart in some acrimony.
While the Courts have not always had the most enlightened approach to domestic abuse, and while continual attention to the changing understanding of its impact is needed, not everything which one party to a relationship found upsetting will pose a risk to the welfare of children. Nor is the Court there to lay blame for the sad disintegration of intimate relationships. That can lead to the elevation of petty misdemeanours but also (as in one of the appeals) to an exercise in excusing abusive behaviour because the other party was not blameless. The court should assess the allegations which are relevant to the issues at stake.
Indeed, one of the appeals failed because while the disputed allegation was serious, the mother made clear that she did not seek to overturn the order for contact – only to address a finding that had been considered and rejected in the original proceedings. The issue was therefore academic, and it was not necessary to resolve the appeal. Another succeeded in part because the judge had engaged in an exercise of laying blame on one or other party and thereby minimising the abuse which had been found to have taken place.
One significant part of the judgment for practitioners is in the Court’s guidance on how to plead domestic abuse. During the parties’ submissions to the Court there was a universal feeling that the Scott Schedule was no longer suitable. For the uninitiated, a Scott Schedule sets out in tabular form each alleged incident of abuse, the response of the other party, the evidence they each rely on and the findings of the Judge. Originating from building disputes it is designed to include single items on which there is a dispute in an accessible form. Imported into Children Act proceedings a common practice is for a judge to direct a limited number of ‘incidents’ (often 6 is considered proportionate) sometimes described as the first, last, best and worst – i.e. how it all started, the most ‘serious’ incident(s), the final incident that led to protective action being taken and those with the strongest supporting evidence.
The Court of Appeal looked at two criticisms: the inability of a schedule to address the cumulative impact of coercive and controlling behaviour, and the tendency to limit the number of items to be considered.
The criticism of the more limited approach is obvious – if the allegation is of daily low-level coercive and controlling behaviour consisting of perhaps many thousands of incidents over perhaps decades of a relationship, how is that to be pleaded? Is 6 incidents of name-calling or mutual pushing and shoving during arguments in the last weeks of a relationship worse than daily ritual belittling and controlling of a person so as to destroy their spirit and make them dependent?
And how is a pattern of behaviour to be assessed if limits are placed on the number of incidents to be pleased? In a building claim each faulty item is easily identified and the Court will allow you to address each aspect of your claim. If you are a pair of Hollywood stars arguing over a libel claim you can have 16 days with a High Court Judge. But if you are a victim of domestic abuse dealing with a perpetrator who poses a risk to you and your children you are limited to only a small number of issues and potentially criticised if you then stray outside the schedule. The focus on index incidents, it was argued, skews the picture and limits the Court’s assessment of risk – the argument will always be that ‘only’ 3 or 4 or whatever number of incidents were proven, where they may be part of a pattern which is what really poses the risk.
The Court of Appeal agreed with the criticism of Scott Schedules:
“46. For our part, we see the force of these criticisms and consider that serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be.”
As to what that format might be – pleadings as in a civil case or a threshold style document identifying types of harm and the causes of them were suggested – that issue was left to another day. In my personal experience it is now common for Scott Schedules to identify ‘coercive and controlling behaviour’ or similar patterns as one of the index allegations, followed by a series of stated examples. This is sometimes criticised as a way of ‘getting around’ the limit on the number of allegations pleaded. This criticism seems inappropriate in light of the Judgment of the Court of Appeal and the recommendations in similar terms of the Harm Report. Until further guidance is received it is likely that the Scott Schedule will need to be adapted to allow a wider view of the narrative.
Controlling and Coercive Behaviour
Perhaps the most important part of the judgment relates to the approach of the Courts to controlling and coercive behaviour allegations. The Court observed that the vast majority of domestic abuse cases were underpinned by coercive and controlling behaviour. It is likely, therefore, to be central to the Court’s exercise in most domestic abuse cases. Even where there was violence it was likely to be part of a pattern of intimidation and control.
Importantly, just as the antiquated approach from the 1970s and 1980s of looking at ‘violence’ as something between the adults had rightly been left behind, so too should the approach of viewing coercive and controlling behaviour as incidents that are between the adults and ‘in the past’ and therefore irrelevant.
That the parties are separated and therefore not in a position where physical or sexual violence can be perpetrated does not address the underlying patterns of behaviour that are the foundation of domestic abuse. The Court observed that the patterns and attitudes that lead to abusive behaviour are likely to find a different outlet if not addressed and therefore to pose a risk, even if the route to a repetition of the past behaviour is closed off by separation or injunctions. A judge who fails to consider the issue of coercive and controlling behaviour is therefore likely to fall into error and expose themselves to an appeal.
The Courts should, it was held (paragraph 56), look less at individual incidents (unless they are obviously of significant concern in their own right) and more at the pattern of behaviour. The Court of Appeal considered this may restrict the length of the exercise and ease the burden on the courts. How a judge is to find as a fact that a pattern of behaviour has occurred without establishing a series of examples of that behaviour remains to be seen. The Court’s guidance was that:
The relevance of the criminal law
Since the case of Re R (Children) (Care Proceedings)  EWCA Civ 198 there has been debate about the relevance of criminal law concepts to Children Act cases. In many cases the allegations made could easily constitute a criminal offence. In some cases, there will have been criminal proceedings resulting in acquittal – a cause of consternation to some that the allegations can be resurrected in a different court with a different standard of proof.
In Re R the Court of Appeal held that it was wrong for the Family Court to engage in debates about whether the alleged abuse constituted a criminal offence. The focus should be on the broad canvas of narrative not the specific detail of an alleged crime. In criminal proceedings no findings of fact per se are made – the jury decides whether a person is guilty or not in relation to the offence as pleaded in the indictment. The issue in Family Proceedings is very different. The Court needs to establish what has happened and how and then assess the risks arising from that.
So far so sensible. The result, however, has been a degree of confusion. As Cobb J observed in F v M  EWHC 3177 (Fam) it is the focus on the ingredients of an offence (for example defences to an established offence or the constituent aspects making up the offence of rape) which was the error envisaged in Re R. The Family Court is ill-placed to consider whether some specific legal defence would be available to a charge in the criminal court, and even where a party may not be guilty of an offence, their conduct may be such as to give rise to genuine risk and real harm. As such it would remain relevant to the welfare exercise even if not a criminal act.
In some cases, however, the Court has become focussed on the language and this was addressed by the Court of Appeal. The contortion of a judge stating that a party or a legal representative let alone a judge is not allowed to use the word ‘rape’ for example but rather must refer to ‘non-consensual sex’ so as to avoid straying into criminal concepts is troubling. What does it say to the victim? They will understand their experience as rape, but a judge is telling them that it is not. They will be left with the understandable feeling that their experience is somehow not so serious. It is artificial, insulting and harmful to victims and was deprecated by the Court of Appeal, who stated that nothing in Re R should cause the courts to shy away from the use of such colloquial language to describe behaviour found to have taken place. The restriction on the consideration of criminal concepts should also not prevent the consideration by the court of procedural matters drawn from the criminal law, such as the relevance of past sexual conduct of the accuser.
This is not the end of the story for Domestic Abuse cases. In the past 12 months both the Harm Panel Report (MOJ: Assessing Risk of Harm to Children and Parents in Private Law Children Cases) and the President’s Private Law Working Group have published detailed reports that are being piloted in Family Courts. They reflect a move away from the adversarial contest between two parties towards a more investigative approach.
It is worth noting that the current position is itself an evolution. The Court observed that as recently as 1976 the Domestic Violence and Matrimonial Homes Act required evidence of actual bodily harm before a power of arrest could be attached to an injunction. In the 1980s ‘domestic violence’ was considered a matter between the adults which was irrelevant to the welfare of children. In 2000 the conjoined appeals in Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence)  EWCA Civ 194 brought heightened awareness of the importance of domestic abuse and its relevance to child welfare, and since then the introduction of PD12J has codified the required best practice, within which domestic abuse is given a wide definition including coercive and controlling behaviour. As society’s approach to domestic abuse evolves, so too does the Court’s.
It is also worth noting that the Courts currently face unprecedented resource restrictions, exacerbated by the impact of the Covid-19 pandemic. Fact-finding hearings are routinely listed for 1 or 2 days, perhaps 3 at most. At least one party is often unrepresented. Lists are busy and the number of judges available restricted. Establishing patterns of coercive and controlling behaviour through many relatively ‘minor’ incidents takes time and care. The challenge for the courts will be to undertake the forensic exercise envisaged by the Court of Appeal within these constraints. Time will tell whether that is possible.
31 March 2021
Coronavirus regulations: out with impenetrable legalese & in with pictures, graphs & diagrams, say Charles Auld & Kate Harrington in the New Law Journal
Click here for the article.
Charles Shwenn has written a very interesting article which has been published by the Litigation Funding magazine. Click here is read the article
Chambers would like to congratulate Charles Shwenn on the publication of his book by Law Brief Publishing: A Practical Guide to Non-Party Costs Orders. This is a valuable tool for practitioners as well as companies, insurers and commercial litigation funders. Family practitioners who practice in the area of TOLATA may also find this guide of use.
Charles Shwenn is a member of the civil team in chambers and maintains a broad commercial chancery practice. He has a particular interest in the law of costs and civil procedure, on which he regularly writes and advises.
This book can be purchased from Amazon using the following link. Practical Guide to Non-Party Costs Orders
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