It’s estimated that 40% of private law children cases now involve allegations of domestic abuse in the UK. This means that family courts engage with this issue in around 22,000 cases each year. Despite the prevalence of these allegations, family courts have been found to victimise survivors of rape and domestic abuse time and time again.
However, back in January, the Court of Appeal put this issue under the microscope when it re-examined four linked appeals brought forward by mothers over child contact. On 30 March, Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde released a 47-page judgment outlining how these kinds of cases should be treated.
While victim-support groups have welcomed some aspects of the guidance, many have argued that it does not go far enough to tackle rape myths and contact at all costs.
In June 2020, the Ministry of Justice (MoJ) released its report, “Assessing Risk of Harm to Children and Parents in Private Law Children Cases”. It considered the views of 1,200 responses from individuals and organisations across England and Wales.
The report highlighted that domestic abuse and rape survivors face a number of barriers to raising abuse in family courts. Specifically, the report showed that the deeply ingrained “pro-contact” culture in family courts is accompanied by a lack of understanding of the different forms that domestic abuse takes.
In addition to this, the damning report revealed that survivors experienced further difficulties evidencing the abuse. Many had encountered stereotypical and misinformed views around how the “ideal” victim should act and behave.
Elsewhere, the report showed that family orders have also been incredibly harmful. It was found that family orders enabled the “continued control of children and adult victims of domestic abuse” as well as “the continued abuse of victims and children”. Moreover, the report showed that in some cases, the level of abuse that survivors and their children experienced actually worsened following proceedings in the family court. On top of this, efforts to report continuing abuse were dismissed by criminal justice and child welfare agencies because of family orders.
A number of “sweeping reforms” were subsequently recommended as a result of the report. This included a review of the presumption of “parental involvement,” reform to the Child Arrangements Programme, more powers for judges concerning “barring orders,” enhanced training for professionals working in the family justice system and entitlement to separate waiting rooms, entrances and screens in court for survivors of domestic abuse.
In January 2020, the courts’ approach to domestic abuse was analysed further in the first conjoined appeal on this topic in over 20 years. Lord Justice MacFarlane, Lady Justice King, and Lord Justice Holroyde examined four separate appeals, all brought forward by women who had raised allegations of domestic abuse and rape. Each appellant argued that the judges presiding over their cases had made wrong decisions. The Court of Appeal invited a number of organisations to offer insights on the wider issues at play. Some of these organisations included Women’s Aid, Rape Crisis, and Cafcass.
In Re H-N’s case, the mother involved said that the judge overseeing the case, Judge HHJ Tolson, had approached her case unfairly. She said that instead of focussing on the rape and domestic abuse allegations, the judge instead focussed on her ability to care for her child. The judge was also reported to have said that rape allegations are: “Nowadays very common in child arrangement proceedings”. The mother interpreted this as an implication that she had tactically fabricated the allegations.
Another appeal launched against a decision made by HHJ Tolson (Re H) involved a mother who had made allegations of rape and domestic abuse against the father of her child. The mother’s lawyer argued that the use of a Scott Schedule meant that the judge failed to see the father’s behaviour as “part of a comprehensive whole”. The judge failed to acknowledge the father’s persistent patterns of behaviour that were to endanger the child’s safety, which was contrary to guidance in PD12J.
The Re T appeal was against the decision made by HHJ Evans-Gordon. In this case, the mother had again, made allegations of domestic abuse and rape. However, the judge concluded that an event where the father placed a bag over the mother’s head and told her:“This is how you should die” was a joke. The appellant’s counsel also argued that the judge had failed to apply special measures via PD3AA.
The fourth appeal, Re B-B, was against the decision made by HHJ Scarratt regarding a consent order. The mother had made allegations of rape and domestic abuse, and the judge, who, without the power to do so, threatened to remove the her child.The lawyers argued this placed significant pressure on the mother to negotiate contact with the father. As a result, she felt forced to make a consent order between the child and their father, an order she wanted to appeal over the belief that she was coerced.
In their ruling, the judges at the Court of Appeal allowed the appeals in Re B-B, Re T and Re H-N and dismissed Re H’s appeal.
In their concluding remarks, the judges said: “Each of these appeals are examples in differing ways of the importance of the modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household. Training together with a proper application of PD12J largely ensures that such errors are the exception rather than the rule, but that that is the case does not lessen the impact on those individuals affected when things do go wrong”.
It was also determined that courts should: “Prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations”.
In response to the judgement, many have argued that it does not do enough to tackle victim-blaming, rape myths and the harmful approach of contact at all costs.
Speaking to the Guardian, Charlotte Proudman, who represented two of the mothers, said: “It was disappointing that judges shied away from clarifying how the family court should deal with rape cases, including the prevalence of rape stereotypes and myths”.
She added: “We are told the criminal definition of rape should not be used in the family courts but I’m left really unclear on what definition should be used instead. I’ve seen judges use terms such as ‘partial rape’ or ‘unwelcome sexual intercourse’ but what do these descriptions mean?”
Echoing these sentiments, Katie Russell, of Rape Crisis England & Wales expressed similar feelings of disappointment. She said that the ruling had: “Declined to tackle the significant problems of victim-blaming, rape myths, lack of understanding of the law on sexual consent from family court judges, and the overall minimisation and dismissal of sexual violence and abuse in the family courts”.
If you have been affected by any of the issues raised in this article, the following organisations can offer advice and support: