Responding to Allegations of Domestic Violence and Controlling Behaviour During Divorce Proceedings

Alex Aspinwall

On 29th April 2021, the Domestic Abuse Act was signed into law. Activists have described the Act as a huge step forward in protecting victims and as moving the law forward following extensive and well-publicised criticism levelled against the old statutory framework. Shortly before the Bill was passed into law, the Court of Appeal considered four conjoined appeals in Re H-N and Others (Children) 2021 EWCA Civ 448 and provided guidance for family practitioners concerning allegations of domestic abuse in private law litigation. 

This article intends to analyse the Court of Appeal’s findings in Re H-N in light of the Domestic Abuse Act 2021. It will argue that, despite further guidance being required, practitioners are now better equipped to act on allegations of domestic abuse in private family law litigation.

Re H-N

Re H-N concerned four conjoined appeals arising from separate private law orders. The Court of Appeal, which comprised of The President, King LJ and Holroyde LJ, acknowledged the frequency with which allegations of domestic violence arise in private family litigation (around 40% of cases) and accepted the current judicial approach to such allegations has become embedded in domestic practice. However, given the Family Court is engaged in an ongoing process of developing and improving its procedures, the President took the opportunity to offer further guidance to judges and practitioners in order to emphaise that there is no room for complacency in such cases.

The Guidance

The Court accepted that PD12J remains fit for purpose and ‘provides the courts with a structure enabling the court first to recognize all forms of domestic abuse and, thereafter, how to approach such allegations when made in private law proceedings. Therefore, the focus of the guidance lay not in the wording of PD12J but in its application by family practitioners.

The necessity of a fact-finding hearing

At paragraph 37, the Court summarised the proper approach for practitioners to determine whether a fact-finding hearing is necessary where allegations of domestic abuse are made. A practitioner should consider:

  • The nature of the allegations and the likely relevance to the making of a child arrangements order.
  • The purpose of PD12J; to provide a basis to assess the risk to a child.
  • Whether the hearing is ‘necessary and proportionate. This includes assessment of the evidence that is present and whether the allegations have a sufficient factual basis to proceed.

The Court emphasised the importance of necessity and proportionality in determining whether a fact-finding hearing is required. This was couched in light of the President’s comments in ‘The Road Ahead’. Read more on the importance of narrowing the issues in private family litigation before a hearing here.

Controlling and Coercive Behaviour

In terms of practitioners’ approach to controlling and coercive behaviour, the President noted the underlying tension between effective case management and the need for proper application of PD12J and the holding of fact-finding hearings. The Court noted that the correct approach to identifying such behaviour was to evaluate patterns of behaviour, as opposed to individual instances (the old approach). Where the allegations of abuse risked the safety of a child, then patterns of controlling and coercive behaviour should be assessed by a judge with a view to determining the level of risk posed to the child. Evidently, this should be done with a view to effective case-management and avoiding undue delay.

Therefore, when practitioners are utilising PD12J in private family litigation, the Court offered the following broad guidance:

  • PD12J focuses on domestic violence in the context of child arrangements orders. Therefore, abuse allegations should not be considered unless they are relevant to the welfare determination the court has been tasked with making.
  • PD12J.16, is clear that a fact-finding hearing must be necessary. That necessity relates to the welfare assessment a court is making, providing an assessment of risk or considering any final welfare-based order in relation to a child.
  • When a fact-finding hearing is found to be necessary, only the issues that are required to support the aims listed above should be heard.

Essentially, the President emphasises that practitioners need to make a judgment on the basis of case-management considerations and the requirement to protect the welfare of children. This balance needs to be struck in light of comments in the President’s report ‘The Road Ahead’ and issues should be agreed on/narrowed where possible before any matter proceeds to litigation.

The Domestic Abuse Act 2021

The Domestic Abuse Act 2021 provides a thorough and codified review of domestic abuse law. Importantly, section 1 of the Act provides a wide-ranging definition of domestic abuse which encompasses any behaviour characterizable as: physical or sexual abuse, threatening behaviour, controlling or coercive behaviour, economic abuse and psychological abuse. This is significant in that it substantially broadens the legal definition of domestic abuse to include, perhaps less obvious, but no less insidious forms of behaviour.

The Act includes further provisions that are significant in developing the law. These include:

  • Recognising children as victims of domestic abuse (as opposed to witnesses) when they see, hear or experience classified as domestic abuse in the home of a parent or relative (section 3).
  • Preventing abusers from cross-examining their victims in family and civil courts (section 65 and 66).
  • Controlling and Coercive behaviour now applying to post-separation abuse (section 76).
  • New powers given to judges to hand out Domestic Abuse Protection Orders in order to force abusers to change their behaviour via alcohol and drug rehabilitation (for example).

Taken as a whole, the Act is a substantial development of the law and has been met positively by victim support groups and activists. The Act seeks to strengthen the protection of victims not only in terms of broadening the definition of domestic abuse, but by procedurally shielding victims from abusers in the family and civil litigation process.

Where are practitioners left?

Following the guidance in Re H-N, it is clear that family practitioners need to consider the necessity of a fact-finding hearing if allegations of domestic abuse are raised in private proceedings. Following the advent of the Domestic Abuse Act, practitioners need to be aware of the expanded legal definition and any impact this may have on the nature of allegations made. For example, the Domestic Abuse Act 2021 specifically defines behaviour that has the effect of limiting a party’s ability to acquire, use or maintain money as domestic abuse. Following the Act, a practitioner, when faced with this sort of behaviour, has a clearer route to making specific allegations of domestic abuse as opposed to labelling such behaviour as ‘controlling’ or ‘coercive’.

Given the expanded definition, the President’s guidance on case management and narrowing of issues becomes relevant. Given the strain on the Family Justice system, practitioners on both sides of the bench need to be increasingly aware of balancing case-management considerations, the overriding objective and maximizing the welfare of any children involved with proceedings. Interestingly, the 2021 Act determines that children are now ‘victims’ of domestic abuse if it is witnessed in the home. It will be interesting to see the impact this has on the necessity to hold fact-finding hearings given, one would assume, this would tie any abuse perpetrated against a parent more closely to the welfare of the child. It is hoped that the President will offer further guidance on interpretation of the Act in the coming months.

To conclude, family practitioners have a much clearer understanding of how to move forward if domestic abuse allegations are made in private family litigation. In the context of the global pandemic, it seems the 2021 Act was much needed and clearly strengthens protection for victims both generally and in the family courts. Whilst more action is needed from Government, the Act is a start in terms of providing wider protections for every victim of domestic abuse.

Stop Domestic Abuse

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