Posted by Zoe Robinson, Chartered Legal Executive (Fellow)
What the domestic abuse judgment means for children’s welfare
A long awaited and eagerly anticipated Judgment in relation to four appeals regarding domestic abuse has finally be handed down by the Court of Appeal. This Judgment is likely to have a significant impact on the way that the Family Courts deal with allegations of domestic abuse in Children matters.
Among other points, it is noteworthy that the definition of coercive and controlling behaviour has been expanded, and the court has carefully considered the approach to cases involving such behaviour. The much awaited Domestic Abuse Bill has been delayed due to the coronavirus pandemic – a pandemic which has seen a significant increase in domestic abuse, particularly as a result of the national lockdowns. This increase is itself directly commented upon in the recent Judgment which confirms that in the year 2019/2020 there were over 50,000 private law children applications (applications generally between parents regarding issues over the arrangements for their children) and of those, approximately 40% included allegations of domestic abuse. The figures for 2020/2021 have not yet been published, but it is anticipated these will be even higher as a direct result of the current pandemic.
The Judgment has not provided ‘new law’ but has highlighted concerns over the way in which allegations of domestic abuse have been dealt with in Children applications and has provided further helpful clarification and guidance.
Changes to proceedings
The Court confirmed that a cautious approach must be adopted when requiring the alleged victim to particularise their allegations of domestic abuse in a document known as a Scott Schedule. This document records in a table form the specific allegations they are making. This can present as problematic for those alleging coercive and controlling abuse, as this abuse is often difficult to particularise due to its often persistent nature.
The Court has had to consider domestic abuse in matters regarding children for some time and the introduction of Practice Direction 12J placed a further obligation on the Court to consider throughout the proceedings, whether there are allegations of domestic abuse, which if found to be true, would have an impact on the final order that the Court would make. In appropriate cases, the Court must consider whether it needs to establish a factual matrix before it can move on to matters of welfare. The Court must look at not only the effect of any order on the child but must also consider the effect of any order on the victim.
The Court of Appeal also commented in relation to the Court’s need to focus upon the issue of domestic abuse and not be drawn into an analysis based on a Criminal law.
PD12J is fit for purpose
The Court confirmed that PD12J remains fit for purpose and that it sets out clearly what is required of the Court at each stage of the proceedings. It concluded that the Judiciary needs to comprehend the nature of domestic abuse and particularly the nature and effect of coercive and controlling behaviour, including the effect on the victim and the children living in that household. Appropriate training and careful application of PD12J remain the key to ensuring that matters are dealt with justly and with the child’s welfare as the paramount consideration.
As a firm that prides itself on its highly experienced lawyers dealing in cases regarding these issues, and who receive regular referrals from Domestic Abuse support services, we will be watching keenly to see how these changes are implemented.
Our Family team deal in all aspects of family law, including divorce, financial issues as a result of family breakdowns, domestic abuse and all aspects of children matters, including Child Arrangements and Care proceedings.
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