Court of Appeal considers family court's approach to domestic abuse

The Court of Appeal is being asked to consider how the family court treats allegations of domestic abuse and coercive and controlling behaviour, in a groundbreaking case that is likely to result in fresh guidance being issued to judges.

Sir Andrew McFarlane, president of the family division, Lady Justice King and Lord Justice Holroyde are hearing four linked appeals related to family proceedings involving the welfare of children.

The four decisions being appealed were made by circuit judges sitting in the family court.

The Court of Appeal was last asked to give general guidance on the approach to domestic abuse in child contact cases two decades ago. Practice Direction 12J was subsequently issued, setting out what the family court is required to do in cases where it is alleged or admitted that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.

McFarlane told the court yesterday: ‘Domestic abuse does not just involve particular acts of violence. The last time these issues were looked at by the Court of Appeal 21 years ago, the phrase was “domestic violence”. My memory is, at that time, the court was only occupied in determining whether there had been violence.’

On wider abuse, McFarlane recalled: ‘If there was violence, it would be taken seriously in the case. If there seemed to be a minor exhibition of violence, it was probably minimised by the court. We have moved a long way from that. We now have more understanding that you can live in an abusive relationship where there is no violence at all.’

Yesterday, the court heard submissions from counsel in two of the four appeals.

Christopher Hames QC is representing a mother seeking to appeal an order made by HHJ Tolson QC. Hames told the court that HHJ Tolson QC was the judge who was ‘excoriated’ by the judgment of the Honourable Ms Justice Russell DBE in the High Court in JH v MF last year.

On his client’s appeal, Hames said: ‘We say the judge started to go badly wrong in his whole treatment of the mother’s allegations in her case.’

Janet Bazley QC, for the father, said: ‘The allegations are not going to make a difference to the welfare outcome in the context of the evidence [the judge] heard. What he had to consider was whether the allegations were relevant to the decisions that were going to be made at the end of the day in relation to welfare.’

In the afternoon, the court heard submissions regarding an order made by HHJ Evans-Gordon.

Professor Jo Delahunty QC, for the mother, said two allegations were found in the mother's favour but ‘the fact [the judge] did not go back to reflect on them, address the question of whether it was a coercive and controlling relationship, was a grave mistake to make.’

The father is seeking to cross-appeal the judge’s finding regarding the allegation that he placed a plastic bag over the mother’s head. Charles Hale QC, for the father, said the finding was ‘so unusually out of kilter with the rest of the judgment as to be an aberration’.

At the start of his submissions, Hale said domestic abuse 'in all its forms is an absolute scourge on society' but the focus of these appeals should be on the child. He said the father had been largely exonerated in terms of the allegations but had not seen his child for three years.

Submissions on the other two appeals will be heard today. The hearing is due to conclude tomorrow.