News

A (domestic abuse: incorrect principles applied) [2021] EWFC B30 - Family practitioners beware – do not take basic principles for granted.  

This case is an important reminder to practitioners doing family work (especially those involved in CA and FLA proceedings) to keep in mind basic principles; sometimes the court needs reminding too!

Facts

A fact-finding hearing took place in CA proceedings over two days on 4 and 5 November 2020 before a Deputy District Judge. Reserved judgment was given on 23 November 2020 when Mother’s allegations were dismissed. Mother appealed the decision.

Decision

HHJ Ahmed allowed the appeal.

Referring to the recent Domestic Abuse Act 2021 which came into force on 29 April 2021 – and the recent guidance provided by the Court of Appeal in Re H-N [2021] EWCA Civ 448, the court found that the DDJ made a number of serious errors.

Fundamental principles were not implemented, and outdated attitudes which have no place in the Family Court, were applied.

One of the most striking errors was the DDJ’s application of criminal standards to his reasoning. As McFarland LJ (as he then was) stated in R (children) [2018] EWCA Civ 198

“Criminal law concepts should not be applied in family hearings.  The purpose of the family tribunal is not to establish guilt or innocence but to establish the facts in as far as they are relevant to inform welfare decisions regarding the children.  It may be important for the children to know whether the surviving parent's actions were reasonable, as well as the potential for future harm to them (whether physical, emotional or psychological) if that parent continued to be involved in their care.  It will often be necessary to have a fact finding to determine those matters, but the language used to phrase the facts sought and the judgment should avoid direct reference to criminal law concepts or principles such as 'unreasonable force', 'loss of control' or 'self-defence'.”

Criminal concepts such as ‘guilt’ have no relevance to family proceedings.

The DDJ also erred in seeking to distinguish ‘physical violence’ from ‘abuse’. The DDJ sought to place greater significance on physical violence (as a more serious form of abuse). HHJ Ahmed, in rejecting this approach, pointed out the potential long-lasting effects of emotional abuse on victims.

The DDJ also failed to identify the Mother as a vulnerable person and make any provision (or consideration) to special measures being put in place. The DDJ failed to have regard to PD 3AA, paras 1.3 and 1.4.

Lastly, HHJ Ahmed highlights the court’s previous failure in restricting Mother’s ability to present her case (the court had restricted the number of Mother’s allegations to 1, which was increased to 4 on appeal). In limiting the allegations to 4, this made it difficult for Mother to present a case properly on the basis of a ‘pattern of behaviour’ over a period of time. Nuanced appreciation of the allegations was lost.

The decision of HHJ Ahmed is consistent with the views expressed by the Court of Appeal recently in Re H-N [2021] EWCA Civ 448. In particular, the Court of Appeal noted that time may have come for the family courts to move away from using Scott Schedules which identify specific incidents by reference to a particular date and time; there being a risk of failing to focus on the wider context and whether there has been a ‘pattern of coercive and controlling behaviour’.