If I were a tabloid, my alternative heading might be ‘Top Judges blast Judge who treated attempted suffocation as a prank’
The Court of Appeal have just given a decision in four appeals linked by subject matter, all relating to private law cases where there was a dispute about whether one parent had been violent or abusive to the other, and the impact of this on contact.
The Court of Appeal are at pains to point out that the case establishes no new legal principles or new law, but of course it is an oversight as to how Practice Direction 12J about fact finding hearings in private family law is working and also an opportunity to look at how it is being applied on the ground.
As will be seen, our decisions on the various appeals very much turn on long-established principles of fairness or the ordinary approach to judicial fact-finding. None of the four appeal decisions purports to establish ‘new law’. They therefore do not establish any legally binding precedent.
Ten silks were involved in the case.
H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings)  EWCA Civ 448 (30 March 2021)
It is valuable reading for anyone involved in these cases. The big picture is that the Court of Appeal consider that Practice Direction 12J as written, functions properly and does not need reworking but stresses the importance of it being followed and properly applied.
As readers will recall from a high-profile appeal from HHJ Tolson QC, there’s been some concern about whether the spirit of 12J is being properly recognised.
Two examples from the cases being appealed may illustrate the concerns :-
- This court has had an opportunity to listen to a recording of this hearing and it is undoubtedly the case that the judge was both frustrated and cross at the total ‘shambles’ in terms of case preparation. The judge said that he would deal with only three allegations ‘if I deal with anything’ and that he would ‘probably not deal with anything’. By reference to the schedule in which the father alleged that the mother drinks and took cocaine, the judge said that he would try that allegation, saying that ‘if both parties are taking drugs and that there was evidence that both parties took drugs’ he would make those findings. The judge accepted that the mother’s allegation of rape was one of the three allegations which may be tried.
- The judge went on to ask with whom ‘the child’ lives and was told that it was the mother. It was at this point that the judge said that ‘if this goes on the child will be taken into care and adopted’. Unsurprisingly, the mother became deeply distressed and can be heard crying on the tape.
- The judge asked if the mother accepted that she took drugs and asked whether she describes herself as an addict.
- In the subsequent exchanges counsel told the judge that the mother accepted taking drugs on only one occasion and then by coercion by the father. The mother can be heard in the background weeping and denying that she is an addict. The judge then said that it may be that he would have to report the matter to social services. The exchanges continued in similar vein with the judge saying that the parties were where they are ‘because of your own making’. He accepted that the matter would have to be adjourned as the father’s counsel had failed to attend.
- Counsel for the mother submitted to the judge that the case was not about drugs, but about the allegations made by the mother of abuse, to which the judge responded: ‘Well how’s that going to affect contact’. Further attempts by counsel to highlight aspects of the mother’s case were to no avail. The judge said that the parties should ‘sort it out’ and that ‘you should have had the riot act read to you months ago’. The parties were then sent out to see if they could reach an agreement as to contact.
- In November 2017 the allegation made by the mother was that the father ‘grabbed the mother by the throat and began strangling her’. The father, it was alleged, threatened the mother with death. The background to this incident was an argument during which the father began, allegedly, to choke the mother. The judge found that the: ‘mother asserted she was choking. However, in oral evidence she said that the strangulation lasted a few seconds, she coughed, and he let her go; there was no mention of any choking. Afterwards, there was no visible marks. The father denied the whole event.’
- The judge, whilst not satisfied that the father ever attempted to ‘strangle’ the mother, held that ‘the father probably held the mother in the vicinity of her neck’. She went on that he ‘may well have used words to the effect that he would kill the mother but, it seems to me, that these words are commonly used in anger which do not import any genuine threat to life’.
- A month or so later in December 2017, the ‘plastic bag’ incident occurred. The father came up behind the mother when she was sitting on the floor with T on her knee and, without warning, put a plastic bag over the mother’s head. The father said, ‘This is how you should die’. The father denied that any such incident took place.
- In contrast to her findings as to the mother’s evidence in relation to various of the other allegations, the judge said that, in relation to this incident, the mother spoke with ‘total clarity’ with ‘no inconsistencies’. The judge went on to find:
“52. I accept mother’s account of this incident…However, as there was no trigger to this event at all, I am not satisfied that it represented an attempt to kill, a threat to kill or that the mother felt threatened, given her oral evidence. It may be that it was some sort of prank by the father that he now denies because of the allegations made against him. Indeed, the mother told social workers that the father had called this incident a joke. That said, it was an unpleasant aggressive thing for the father to do and is not acceptable behaviour.”
- So far as to the cross allegations made by the father about the mother, the judge found that the mother had slapped the father in December 2017 and that the next day there was a further ‘unpleasant incident where there was pushing and slapping on both sides’. The judge did not accept that the mother had threatened the father’s elder daughter, but did find that the mother had been aggressive to the father and shouted at him and his daughter in a restaurant.
- The judge, having considered each allegation individually, concluded as follows:
“ While I have found that some of the mother’s allegations are true and some of the father’s allegations are true and I am satisfied that this was a mutually abusive relationship I am not satisfied that these represent anything more than the sad and bitter end of a relationship which met neither party’s expectations…… I am satisfied that this relationship was one of mutual verbal and minor physical abuse attributable to relationship conflict. … I am not satisfied that T would be at risk from her father….. I am not satisfied that the father is a violent man as portrayed by the mother. It seems to me more likely that he was, occasionally, driven to anger and loss of control in conflicts with the mother in situations where she was verbally and, occasionally, physically abusing him. This is not an excuse and I should not be taken as endorsing any abusive behaviour by either of the parties but, having separated, I cannot see that either poses a threat to the other or to T.”
Whilst recognising that the task of unpicking the truth about a serious allegation is a difficult one, and the Judge has the benefit of seeing and hearing the witnesses, it seems to the neutral observer difficult to conclude that putting a plastic bag over your partner’s head and telling them that this is how they will die is as characterised here. A prank or joke seems to be a strange way to categorise this conduct.
The Court of Appeal considered the same, that the findings that were made as to what had happened were not matched by the finding of the significance or otherwise of these.
The judge made three findings of physical violence against the father. In our view, the judge failed to acknowledge in particular the seriousness of the two incidents where the father made reference to dying or to killing. The judge did not acknowledge that whilst she, the judge, may have concluded that the father did not intend either to ‘strangle’ or to ‘suffocate’ the mother, that does not prevent the mother from having been the victim of two extremely frightening episodes. The judge failed to recognise the impact upon the mother and the child. For our part we do not accept that words which can be interpreted as threats to kill are words which are ‘commonly used in anger which do not import any genuine threat to life’. The impact on the mother was abundantly clear given that the judge accepted her evidence that when she was on the floor with the plastic bag over her head she was ‘feeling as though she wanted to die’. In short, the failure to stand back and to consider the impact of her findings prevented the judge from asking the key primary question, which was whether the evidence established a pattern of coercive and/or controlling behaviour.
We are particularly troubled by the ‘plastic bag’ incident. Looking at the background history and the state of the parties’ relationship by December 2017, with the ‘strangling’ incident having taken place only the month before, we cannot see on what basis the judge could conclude that coming up behind the mother (who was on the floor holding their baby), and putting a plastic bag over her head before saying that ‘this was the way she would die’ could be regarded as a ‘prank’. This was, in our judgment, the second of two intimidating and highly abusive incidents of a similar type carried out within a few weeks of each other. We say that conscious of the findings the judge made about the mother’s own aggressive behaviour towards the father on occasion.
More broadly, the Court of Appeal introduce the topic of the important task of the Court in taking allegations of domestic abuse seriously, and of taking seriously the need to get to the truth of the allegations and properly assess the impact they have on the issues of where children live and whom they spend time with
- The task of reviewing the approach to domestic abuse is a complicated one in respect of which the understanding of society, those who work with victims, and politicians and professionals, is developing all the time. At present the Ministry of Justice is moving to implement their report: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’). At the same time, the Domestic Abuse Bill is before Parliament. In addition, those within the judiciary, Cafcass and the legal and social work professions have contributed to the recommendations of the President of the Family Division’s ‘Private Law Working Group’ (‘PLWG’) (2nd report published April 2020) which are beginning to be piloted in the courts.
- The Harm Panel in its recommendations said that they regard the adversarial system by which contact disputes are presently determined as a barrier to the Family Court’s ability to respond ‘consistently and effectively to domestic abuse’. The Harm Panel is now looking to implement an approach to domestic abuse in the courts which is ‘investigative and problem solving based on open enquiry into what is happening for the child and their family’ (Chapter 11.2). Following the publication of The Harm Panel, the Ministry of Justice has started work on how the proposed new approach can be effected and, as part of its recommendations, pilots of Integrated Domestic Abuse Courts (IDAC) are being designed.
- These various endeavours could not be more important in the context of improving our collective approach to issues of domestic abuse. The scope of each is wide and the substantive content is complex. It would be both impossible and inappropriate for us, as judges in the Court of Appeal, following a short hearing of four appeals, to lay down comprehensive guidance in this judgment aimed at resolving (or even identifying) the many difficulties that are said to exist and which are the very subject of these other more extensive endeavours.
- Our focus must therefore necessarily be limited to offering guidance on those matters which are most directly relevant to the court process.
- Over the past 40 years there have been significant developments in the understanding of domestic abuse. The Domestic Violence and Matrimonial Homes Act 1976 (‘DVMA 1976’) introduced the concept of ‘domestic violence’; although ground breaking in its time, it is now wholly outdated and hard to comprehend an approach which required evidence of actual bodily harm to a victim before a power of arrest could be attached to an injunction (s 2 DVMA 1976).
- Obsolete too is the approach often seen in the 1980s where, although ‘domestic violence’ had been established and an injunction granted, judges regarded that violence as purely a matter as between the adults and not as a factor that would ordinarily be relevant to determining questions about the welfare of their children. Fortunately, there has been an ever-increasing understanding of the impact on children of living in an abusive environment. A seminal moment in the court’s approach to domestic violence (as it was still called) was the Court of Appeal judgment in four appeal cases that were, like the present appeals, heard together: Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence)  2 FCR 404;  2 FLR 334. The central conclusion from Re L, which was based on the Court of Appeal’s acceptance of authoritative expert child psychiatric evidence, was that there needed to be a heightened awareness of the existence of, and the consequences for children of, exposure to ‘domestic violence’ between parents and other partners. In CA 1989 applications, where an allegation of ‘domestic violence’ was made which might have an effect on the outcome, the Court of Appeal held that it was plain that it should be adjudicated upon and found to be proved or not. In its time, 20 years ago, the messages from Re L led to a significant change in the approach to domestic abuse allegations in the context of child welfare proceedings.
- As the present appeals illustrate, there are many cases in which the allegations are not of violence, but of a pattern of behaviour which it is now understood is abusive. This has led to an increasing recognition of the need in many cases for the court to focus on a pattern of behaviour and this is reflected by (PD12J).
- PD12J paragraph 3 includes the following definitions each of which it should be noted, refer to a pattern of acts or incidents:
- The definition, which was expanded in 2017 and is the one currently to be used by judges in the Family Court, is plainly a far cry from the 1970s’ concept of ‘domestic violence’ with its focus on actual bodily harm. It is now accepted without reservation that it is possible to be a victim of controlling or coercive behaviour or threatening behaviour without ever sustaining a physical injury. Importantly it is now also understood that specific incidents, rather than being seen as free-standing matters, may be part of a wider pattern of abuse or controlling or coercive behaviour. It is of note that none of the submissions to this court suggested that the current definition of ‘domestic abuse’ in PD12J required substantial amendment. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same. Thus, whilst PD12J will undoubtedly fall for review to ensure that it complies with the DAB once the Bill becomes an Act, it is unlikely that the substance of the core definitions will substantially change.
- We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse. The challenge relates to the proper implementation of PD12J.
- As can be seen at paragraph 27 above, central to the modern definitions of domestic abuse is the concept of coercive and/or controlling behaviour. Shortly before the hearing of these appeals, Mr Justice Hayden handed down judgment in F v M  EWFC 4. The judgment followed a two-week fact-finding hearing of domestic abuse allegations centred on coercive and/or controlling behaviour. The arrival of Hayden J’s judgment was timely. All parties commended it to the court for its comprehensive and lucid analysis, and for the plea contained within it urging greater prominence to be given to coercive and controlling behaviour in Family Court proceedings. The parties’ endorsement of the judgment in F v M is, in our view, fully justified. It is helpful to set out one of the central paragraphs from Hayden J’s judgment here:
- Whilst the facts found in F v M may be towards the higher end of the spectrum of coercive or controlling behaviour, their essential character is not, and will be all too familiar to those who have been the victim of this form of domestic abuse, albeit to a lesser degree or for a shorter time. The judgment of Hayden J in F v M (which should be essential reading for the Family judiciary) is of value both because of the illustration that its facts provide of what is meant by coercive and controlling behaviour, but also because of the valuable exercise that the judge has undertaken in highlighting at paragraph 60 the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. That guidance is relevant to the evaluation of evidence in the Family Court.
- The circumstances encompassed by the definition of ‘domestic abuse’ in PD12J fully recognise that 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. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
- It is equally important to be clear 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. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal)  EWCA Civ 2121 (paragraph 61):
- Having considered what is controlling and coercive behaviour and emphasised the damage which it can cause to children living in a household in which it is a feature of the adult dynamics, it is necessary to move on to consider the approach of the court where the question of whether there has been a ‘pattern’ of ‘coercive’ and/or ‘controlling’ behaviour by one or more of the adults in a family is raised. Although the principal focus in this judgment has been on controlling and coercive behaviour, it should be noted that the definition of domestic abuse makes reference to patterns of behaviour not only in respect of domestic abuse refers to a ‘pattern of incidents’ not only in relation to coercive and/or controlling behaviour but to all forms of abuse including physical and sexual violence. Our observations therefore apply equally to all forms of abuse.
- In our judgment there are a number of important issues which arise out of the submissions made by the parties to these appeals in relation to the proper approach of the court to such cases namely:
- Whether there should be a finding of fact hearing
- The challenges presented by Scott Schedules as a means of pleading a case
- If a finding of fact hearing is necessary and proportionate how should an allegation of domestic abuse be approached
- the relevance of criminal court concepts
I’ll tackle the last point first, as it is fairly simple and builds on the Court of Appeal views about this. In essence :-
The family Court should focus on the details of the conduct alleged and not worry excessively about what label it would be given in a criminal court and the ingredients of the criminal offence and the defences to it. Consider what is alleged and determine whether on the evidence the person making the allegation has proved that it is more likely than not to have occurred.
- Hickinbottom LJ observed during the hearing in Re R, ‘what matters in a fact-finding hearing are the findings of fact’ [paragraph 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.
- 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 now in this judgment is different; it 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.
- It follows therefore that a Family judge making a finding on the balance of probabilities is not required to decide, and does not decide, whether a criminal offence has been proved to the criminal standard. Any use of familiar terms should not give the impression that the abusive parent has been convicted by a criminal court. Equally where an abusive parent has in fact been convicted of a relevant offence (e.g. a sexual or violent offence against the other parent), the conviction is proof of the fact that he or she committed the offence ‘unless the contrary is proved’ (Civil Evidence Act 1968 s.11(1) and s11(2)). Where a party seeks to go behind a conviction, the burden of proof is on him to prove on the balance of probability that the conviction was erroneous (McCauley v Vine v Carryl  1 WLR 1977).
- The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, 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 manner in which the hearing is conducted and, in particular, 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. Nothing that is said in Re R, or endorsed in this judgment, should inhibit further consideration of such procedural matters. They are beyond the scope of this judgment and are more properly to be considered elsewhere.
Scott Schedules – a quick run-down. My understanding is that the term arose in building disputes, and were devised not by a Judge or a lawyer but by a surveyor, George Scott. The idea is that there is one document, in the form of a table that sets out each allegation with reference to where and when it was said to have occurred, with a column setting out what each party says about it, a column of where independent references and reports can be found and a column for judicial notes and conclusions.
The issue with them raised in this hearing is that obviously the more allegations that go into a Scott Schedule the more cumbersome and perhaps less useful it becomes. What has happened in effect piecemeal is that a practice has sprung up where the complainant is told to confine their allegations to ten or sometimes even three. The difficulty with that is in cases where the allegation is of coercive and controlling behaviour or a pattern of abuse which does not readily reduce to 3 clear allegations that on x date y happened.
- Concern about the utility of Scott Schedules was raised on two different bases: one of principle and the other more pragmatic. The principled concern arose from an asserted need for the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time. Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents.
- The second, more pragmatic, criticism is not unrelated to the first. As an example in one of these four appeals, the parties were required to ‘limit’ the allegations to be tried to ten and the judge at trial further reduced the focus of the hearing by directing that only three would be tried. It was submitted that that very process of directed selection, produces a false portrayal of the couple’s relationship. If such an applicant succeeds in proving the three remaining allegations, there is a risk that the court will move forward on the basis that those three episodes are the only matters ‘proved’ and therefore the only facts upon which any adverse assessment of the perpetrator’s future risk falls to be made. By reducing and then further reducing its field of focus, the court is said to have robbed itself of a vantage point from which to view the quality of the alleged perpetrator’s behaviour as a whole and, importantly, removed consideration of whether there was a pattern of coercive and controlling behaviour from its assessment.
- 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. This is an important point. Everyone agrees.
- The Harm Panel has expressed a similar view and noted that ‘reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse’ (Chapter 5.4), and that by limiting the number of allegations the court is not exposed to ‘more subtle and persistent patterns of behaviour’ (Chapter 7.5.1). So too did Hayden J in F v M in his Post Script
- Quite how a move away from the use of Scott Schedules is to be achieved, and what form any replacement ‘pleading’ might take, does, however, raise difficult questions and was the subject of submissions to this court. A number of suggestions were made by the parties in submissions including; a ‘threshold’ type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form. The particular advantage of a narrative statement was, it was submitted, that it would allow there to be a focus on the overall nature of the relationship and expressly whether a party says that she had been harmed as a result of the behaviour and, if so, in what manner. Such an approach would allow the court to identify at an early stage whether an allegation of controlling and coercive behaviour is in issue. Identifying the form of harm (which may be psychological) and only then looking back at the more granular detail, would, it was submitted, allow the court to determine what specific facts need to be determined at a fact-finding hearing.
- The process before this court has undoubtedly confirmed the need to move away from using Scott Schedules. This court is plainly not an appropriate vehicle to do more than describe the options suggested by the parties in their submissions during the course of the hearing. It will be for others, outside the crucible of an individual case or appeal, to develop these suggestions into new guidance or rule changes. In practice that work is likely, in the first instance, to be done through the Private Law Working Group together with The Harm Panel’s implementation group whose final recommendations may in turn lead to changes to the FPR or in the issuing of fresh guidance through the medium of a Practice Direction.
The Court of Appeal had this specific comment to make about coercive and controlling behaviour
Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and where a fact-finding hearing is necessary in the context of PD12J, paragraph 16, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).