Does the Family Court truly understand domestic abuse and its impact?

Family lawyers are awaiting the outcome of a landmark hearing at the Court of Appeal. The hearing focuses on how Judges in England & Wales handle cases with domestic abuse as a factor. Some of the leading women’s rights organisations have suggested that outdated views on domestic violence are endangering women and their children.

The case concerns 4 different appeals in private law children proceedings, involving allegations of domestic abuse including rape and coercive control, which were cited within cases regarding disputes about child arrangements orders for children.

The appeals are all brought by mothers who made serious allegations against the fathers of their children within children act proceedings within the last 18 months.

2 cases involve decisions by Judge Robin Tolson, who was heavily criticised last year by the high court over his handling of rape allegations. An appeal was upheld by Ms Justice Russell after she complained Judge Tolson had decided it was unlikely she was raped because she took “no physical steps” to stop her assailant.

One of the women is challenging Judge’s Tolson’s decision to make no findings at all in respect of many allegations of serious domestic abuse, including non-consensual sex, being slapped when heavily pregnant and coercive control. The Judge had ignored an admission by the father that he had on occasions used physical violence. Judge Tolson found the father’s account to be consistent despite conflicting police evidence. The Judge had further referred to the Mother’s mental health issues as her “demons”, and that this had impacted adversely on his treatment of her evidence, rather than him keeping an open mind. Her barrister said that Judge Tolson incorrectly put emphasis on the fact that the alleged non-consensual sex took place before other occasions of consensual sex, and the fact she allowed the children at one point to remain abroad with the father.

The appeal very importantly raises issues with how claims of controlling and coercive behaviour are dealt with by the family court. The legal definition of domestic abuse now correctly includes coercive control but it is sadly an issue that is often not properly explored in the family courts. It can be an uphill battle for family lawyers to persuade Judges that non-physical domestic abuse can be as harrowing and damaging for the victims, and children, as physical attacks.

Christopher Hames QC said Tolson had ignored that victims of abuse do not always recognise themselves as such and may not as a result report abuse to the authorities. Such is the effect of coercive control. It is subtle and carried out over a long period so that the victim may not even realise what is taking place.

Amanda Weston QC, who represented a second woman said Judge Toslon was wrong to find her client’s allegation of rape “deeply unconvincing” because she had had consensual intercourse with the father on other occasions. She says “The judge failed to consider the rape allegations in the context of a pattern of coercive control,”

Two other women are challenging rulings by other judges– Judge Jane Evans-Gordon and Judge Richard Scarratt. No findings of domestic abuse were made against any of the men. The men all oppose the appeals.

This case is of great interest to Domestic Abuse support groups. There were multiple interveners in the case. Barbara Mills QC represented Rights of Women, Women’s Aid, Welsh Women’s Aid and Rape Crisis England and Wales. Mills commented about the women bringing these cases: ‘They would have come to the family court hoping that they and their children will be protected from what they say they have suffered. When one looks at the judgments, my clients would say what these women faced was belittling, disbelieved, dismissed and, sadly on occasions, being threatened. I do not shy away from that last word.’

One of the Charites stated that there appeared to be a `contact at all costs’ approach to child arrangements applications, which is an approach that ignores the impact of domestic violence upon both the victim and the children, and exposes them to further harm.

It is hoped that as well as deciding on the merit of the appeals, the Court of appeal may also issue new guidance to family court judges as a result. Domestic Abuse is frequently raised in family proceedings. The Family court has not properly considered domestic abuse in relation to children matters for a significant number of years, since the case of Re: L, V, M and H (Children): CA 21 Jun 2000. The government launched a review of the family court’s approach to parental access and the safety of children in November 2020. The findings are due to be revealed this year.

Victims of domestic abuse may sometimes be given the benefit of access to Legal Aid for family cases, however that privilege is sometimes denied unless they are able to prove domestic violence at the outset. Coercive control is a challenge to evidence, and many women do not report domestic abuse for many reasons. As litigants in person they face further harm in having to deal directly with their abuser. It is also a worrying trend that abusers often dismissively allege that domestic abuse is being raised as part of attempted parental alienation. What is clear is that further guidance on this very complex issue is necessary.

We are able to provide advice and representation in Children act and domestic abuse proceedings. Please contact our Patricia Beckett at p.beckett@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986