Coercive control should be the ‘primary issue’ in domestic abuse family cases – Court of Appeal
Allegations of coercive and controlling behaviour should be the “primary issue” for family courts when considering cases where one parent claims to have been the victim of domestic abuse.
Court of Appeal judges set out guidance in a ruling on Tuesday after hearing four separate appeals against decisions made in private law cases over contact with children, where domestic abuse was alleged.
In the judgment, given by the president of the Family Division Sir Andrew McFarlane (pictured), Lady Justice King and Lord Justice Holroyde, the judges said that where an allegation of coercive and controlling behaviour is made, that should be the “primary issue” for a court to decide.
The judges said the approach of regarding coercive or controlling incidents that occurred between adults when they were in a close relationship as being “in the past”, and therefore of little relevance when assessing risk of harm in future, should be considered “old fashioned and no longer acceptable”.
They said the fact there may be no future risk where parents are separated or there is an injunction against one parent, does not mean that a pattern of coercive and controlling behaviour “will not manifest itself in some other, albeit more subtle, manner so as to cause further harm or otherwise suborn the independence of the victim in the future and impact upon the welfare of the children of the family”.
The judges added: “We are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the family court.
“Where however an issue properly arises as to whether there has been a pattern of coercive and controlling behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.”
The judges also said “serious thought is now needed” to developing a different way of organising and summarising evidence to be put before a court to the detailed schedules currently in use.
Lawyers had argued that such schedules are a “potential barrier to fairness” because abusive, coercive and controlling behaviour is likely to have a cumulative impact on victims which would not be identified by considering individual incidents.
The judges said the family courts are engaged in a “continuing process aimed at developing and improving” procedures, including the implementation of a Ministry of Justice (MoJ) report which concluded that the present adversarial system for resolving contact disputes is a “barrier” to the ability of courts to respond “consistently and effectively” to domestic abuse.
The MoJ has now started work on how to give effect to the new approach and is designing pilots of Integrated Domestic Abuse Courts.
The judges said there is also the Domestic Abuse Bill before Parliament and the president of the Family Division’s private law working group, which published its second report in April last year, and its recommendations are starting to be tested in pilot schemes.
The four appeals, which were considered at a hearing in January, were brought by mothers and involved family court proceedings concerning the welfare of children in which at least one parent had made allegations of domestic abuse against the other.
The court allowed three of the appeals and sent them back to the family court to be considered afresh by a different judge, while the fourth appeal was dismissed because the mother in that case no longer wishes to overturn the order for her child to have contact with its father.
The judges said such cases are “far from rare”, with the family courts receiving 55,253 private law applications in 2019/2020 by parents seeking resolution of a dispute with the other over future care arrangements for their child.
They said it is thought that allegations of domestic abuse are made in at least 40% of this type of case which, if correct, means judges and magistrates have to consider about 22,000 such cases a year.
In addition, they said the family courts received 29,285 applications for injunction orders from parents seeking protection from domestic abuse.
The judges said that, despite the high number of cases, the need to identify and determine issues of domestic abuse is “rightly afforded a high level of importance” as the court has to consider the impact of abuse on the child and decide which orders are necessary for the “future protection and welfare of parent and child”.
They added: “Depending upon the circumstances, such orders may substantially restrict, or even close down, the continuing relationship between the abusive parent and their child.”
The court heard representations from Cafcass, the family court advice service, Rights of Women, Women’s Aid Federation of England, Welsh Women’s Aid, Rape Crisis England and Wales, Families Need Fathers and the Association of Lawyers for Children.
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