Domestic Abuse and Child Arrangements Orders

One case has recently caught the interest of legal journalists, that of JH and MF 2020] EWHC 86 (Fam) when Ms Justice Russell lambasted Judge Tolson and decided the judgment was flawed for a multiplicity of reasons.

The Mother had left and fled to a refuge due to the Father’s domestic abuse and it was two years after that the Father applied for a child arrangements order for their 4 year old child.

The Mother’s case was that the Father was aggressive, intimidating and that he was also controlling and emotionally abusive during the relationship. It is her case that she had been subjected to domestic abuse which included verbal abuse and that he had physically and sexually assaulted her while the child was present in their home.

The Judge should have had heed to Practice Direction 12J of the Family Proceedings Rules 2010 which says at part 5:

“The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass , and if so must –

■ identify at the earliest opportunity the factual and welfare issues involved; ■ consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms; ■ give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly; ■ ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and ■ ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance. ■ In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.”

Here, this must have been relevant as a finding of fact hearing had been arranged when evidence was to be heard. What is so surprising here is that the Mother was not allowed to give evidence behind screens which she was entitled to request as a vulnerable witness. Instead she had to give evidence from Counsel’s bench where she was sitting near the Father and he then also gave evidence from there where he could discuss matters with his Mackenzie friend, there to assist as he was not legally represented. She must have been terrified and distressed and no wonder the Judge could barely hear her evidence and the tape recording did not record it all. The case has primarily been reported in the press as the Judge found the Father could not have raped her as she did not physically resist and the Judge seemed to be completely ignorant of the definitions of domestic abuse:

■ “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.

■ “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim

The Appeal Judge agreed the trial Judge failed to apply these definitions, or at the very least, keep them in mind. The Judge did not accept the use of language or throwing objects was controlling and coercive behaviour, which is surprising although many Judges still seem to believe domestic abuse can only be from violence.

The Mother won her appeal against the decision of the Judge that there had not been domestic abuse but now faces the awful prospect of a retrial where she will have to give evidence again. Let’s hope she is allowed to give her evidence from behind a screen or even better, by video link.

Another issue is that unfortunately abusers are seeking to see their children by accusing mothers of parental alienation.

‘Playing the parental alienation card is proving more powerful than any other in silencing the voices of women and children resisting contact with abusive men,’ said former family law barrister Dr Barnett in a recent study.

https://www.independent.co.uk/news/uk/home-news/ domestic-abuse-parental-alienation-family-courts-brunelstudy-a9294726.html

The issue of violence cannot be disregarded, the report states: “A 2016 study by Women’s Aid revealed the cases of 19 children in 12 families who were all intentionally killed by a parent who was also a known perpetrator of domestic abuse. All of the perpetrators were male and fathers to the children they killed and having contact.

The outcome of this report and the case of JH is that there must be better training of Judges to ensure they ascertain the truth and that victims are protected. ■