Illustrating just how important this issue is, Re H-N was heard in the Court of Appeal and involved four separate families. Each family’s case raised similar issues about how allegations of domestic abuse and coercive and controlling behaviour were being handled by the Family Court. Each involved a mother making serious allegations of abuse against the father in circumstances where the father was looking to agree contact arrangements for their children.
Significantly, it has been over 20 years since the Court of Appeal was last asked to consider these issues and a number of third parties who could aid the court’s understanding – Cafcass, the Association of Lawyers for Children, Families Need Fathers and a collective group of women’s organisations – were also involved.
The judgment – which was published on 30 March 2021 – gives practical guidance on some specific parts of the court process:
- How a court should decide whether or not a ‘finding of fact hearing’ should take place to determine allegations of domestic abuse (this is a hearing where the court looks into whether allegations made are true)
- Whether or not a ‘Scott Schedule’ should be used (a table which organises the allegations made alongside the response from the alleged abuser)
- How the court should deal with allegations of controlling and coercive behaviour
- Whether concepts from criminal law are useful and/or relevant in the family law process.
Perhaps the most important aspect of the judgment is how allegations of coercive and controlling behaviour should be dealt with. Coercive control describes a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten a victim. This controlling behaviour is designed to make a victim dependent on their abuser by isolating them from support, exploiting them, depriving them of independence and regulating their everyday behaviour. It has been a criminal offence for the past five years.
It was successfully argued in Re H-N that coercive control is a continuing pattern of abuse that can be obvious or insidious but that it is distinguishable from other forms of abuse. It was also accepted by the Court of Appeal that coercive control cannot easily be categorised by, or condensed into, a particular number of examples and the current way the Family Court approaches domestic abuse allegations (by setting them out in a Scott Schedule) needed to change so as to enable coercive control allegations to be properly explored.
What does this mean?
When looking at allegations of coercive control, the Family Court need to be able to assess the bigger picture – an accumulation of lots of little incidents over a long period of time – rather than a limited number of very specific incidents where the “pattern” of coercion and/or control may be lost.
This is a vital point because, when the Family Court comes to decide what arrangements are appropriate to make for the child, only the allegations of abuse that have been proved can be taken into account when assessing whether the parent poses a risk to their child.
This more enlightened approach moves away from the traditional understanding of “domestic violence” as giving protection only where actual physical violence has been used. It also moves away from coercive control being seen as something that is historic and having no relevance in assessing the potential for future harm to be caused to a child by their parent.
How will this affect future cases?
How the Family Court will determine allegations of coercive control without causing significant delay to a case will require further consideration and there are a number of current initiatives (including the Domestic Abuse Bill) that will help shape future practice. In the meantime, the Court of Appeal did give some pointers:
- A reminder that the crux of a finding of fact hearing is to determine allegations of harm. The court must decide whether a parent poses a risk to a child before making a decision about contact. So the allegations that are made must relate to that question and it is not a “free for all”.
- Finding of fact hearings are only necessary in certain circumstances
- A starting point may now be that parents will be asked to describe in a statement or at a hearing the overall experience of being in a relationship with each other. If either of them alleges controlling or coercive behaviour, then that will be the main issue at any finding of fact hearing and not any more specific factual allegations (unless they are so serious that the court should look into them more).
This important guidance is hugely welcome. In its judgment, the Court of Appeal comments that at least 40% of child arrangements cases that come before the Family Court involve allegations of domestic abuse. And in the past few years there has been a raft of press reporting about the way the Family Court deals with these cases. Whilst there remains a widespread lack of understanding of domestic abuse and trauma – particularly the ongoing effects of coercive control – this case demonstrates 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” and provides a practical starting point in how to approach similar cases in the future.