The long-awaited Judgment of H-N And Others (Children) was handed down on 30th March 2021. There were four cases (joined on appeal) before the Court of Appeal. The appeals were particularly looking at the process in which the Courts consider domestic abuse, Finding of Fact Hearings, and coercive control.
Summary
The Court looked at whether Practice Direction 12J was adequate and gave guidance to assist in the handling of allegations of domestic abuse in the Family Court.
In summary the following was provided as guidance: -
- Finding of Fact Hearings are only to be used where necessary and relevant to any Children Act Order being made;
- If a Finding of Fact Hearing takes place, the concept of coercive and controlling behaviour will be the focus;
- Coercive and controlling behaviour will be primary over specific allegations of abuse to allow full context of the parties relationship;
- The use of Scott Schedules has been examined because of their nature to focus on specific allegations as opposed to patterns of behaviour.
It is likely that further consideration and reform on Scott Schedules will come into practice.
Controlling and coercive behaviour
In respect of controlling and coercive control, the Court endorsed the judgment of Hayden J in F v M [2021].
The Court stated that understanding the scope and ambit of the behaviour, requires a recognition that 'coercion' will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation, and threats [4].
'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 [4].
It was Hayden J’s strong impression, that this behaviour requires greater awareness and, more focused training for the relevant professionals [4].
Hayden J emphasized the need for a holistic approach (which echoes that of the “wide canvas” to be surveyed at a Finding of Fact Hearing’s):
It is crucial to emphasise that key to this form of domestic abuse is an appreciation that it requires an evaluation of a pattern of behaviour in which the significance of isolated incidents can only truly be understood in the context of a much wider picture [60].
The guidance published by the Home Office pursuant to section 77(1) of the Serious Crime Act 2015 identifies paradigm behaviours of controlling and coercive behaviour and is relevant to the evaluation of the evidence in the Family Court [30].
Criminal law concepts in the Family Court
The relevance of criminal law concepts in the Family Court was also clarified.
Hickinbottom LJ observed in Re R, ‘what matters in a fact-finding hearing are the findings of fact’ [67]. 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 definition of ‘rape’, ‘murder’, ‘manslaughter’ or other serious crimes. Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context. For example, in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the border line as between ‘consent’ and ‘submission’ may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault [71].
That is not to say that the Family courts and the parties who appear in them should shy away from using the word ‘rape’ in the manner that it is used generally in ordinary speech to describe penetrative sex without consent. Judges are not required to avoid using the word ‘rape’ in their judgments as a general label for non- consensual penetrative sexual assault; to do otherwise would produce a wholly artificial approach.
The point made in Re R and Re H-N; is that 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 [72].
The task of a Family judge is finely balanced
The distinction between a court understanding likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not be clear cut. That is particularly so when the judge in the Family court must conduct their own analysis of issues such as consent and must do so in the context of a fair hearing.
In this regard the procedural way the hearing is conducted and the scope of cross-examination of an alleged victim as to their sexual history, past relationships, or medical history, justify consideration separately from the general prohibition on family judges adopting criminal concepts in determining the substantive allegation.
Brethertons are here to answer any questions that you may have about Children and Domestic Violence. Please do not hesitate to contact us on 01788 579579 or family-children@brethertons.co.uk