Court of Appeal ruling on domestic abuse ‘disappointing’ say women’s charities

Three senior judges set out guidance in a ruling on Tuesday after hearing four separate appeals against decisions made in private law cases over contact with children, where domestic abuse was alleged.

They said allegations of coercive and controlling behaviour should be the “primary issue” for family courts when considering cases where one parent claims to have been the victim of domestic abuse.

But, responding to the judgment, a number of women’s charities which intervened in the appeal described the ruling as a missed opportunity and said they will continue to work to overhaul the family justice system.

At a hearing in January, the court heard representations from Cafcass, the family court advice service, Rights of Women, Women’s Aid Federation of England, Welsh Women’s Aid, Rape Crisis England & Wales, Families Need Fathers, and the Association of Lawyers for Children.

Olive Craig, senior legal officer at Rights of Women, said: “The Court of Appeal’s judgment goes some way to highlighting the importance of family law professionals identifying and understanding coercive control.

“But we are saddened that the court does not appear to have listened to the resounding message from the (Ministry of Justice’s) harm report and the women we support that culture change is needed.

“The cases the court heard are clear examples of the minimisation by family judges of male violence against women.”

She added: “The Court of Appeal could have used this rare opportunity to send a clear message about the importance of protecting women and children but instead prioritised concerns about workloads and court time over the safety of women and children.

“Despite sexual violence being raised in the appeal cases, and the court hearing submissions about the importance of procedural fairness in these cases, the court’s response avoiding responsibility for this issue was completely inadequate.”

Lucy Hadley, head of policy and campaigns for the Women’s Aid Federation of England, welcomed the court’s conclusions on coercive control.

However, she said the federation is “severely disappointed” that the judges did not call for an end to the “contact at all costs” approach to family disputes, which she said is “putting women and children experiencing domestic abuse in danger”.

Ms Hadley added: “We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors.

“We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”

Katie Russell, national spokeswoman for Rape Crisis England & Wales, said the court’s recognition that understanding of coercive control must play more of a role in family court proceedings is “really positive”.

But she added: “We are nonetheless extremely disappointed that the ruling 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 family courts.

“Through our frontline work at Rape Crisis, we know the significant harm and re-traumatisation these attitudes as well as the pro-contact culture in family courts can and do cause survivors.

“With our partners, we will continue to highlight the real and urgent need for culture shift in the family courts.”

Sara Kirkpatrick, chief executive of Welsh Women’s Aid, said: “This appeal was brought in order to highlight the systemic failings of the family court – the judgment today, while reiterating the need for better understanding of coercive control and all forms of domestic abuse which is most welcome, still sadly falls short of addressing those systemic issues.

“If our civil justice system is not able to protect adult and child survivors of abuse from further harm then it is sadly not delivering ‘justice’, merely process.”

In the judgment, given by the president of the Family Division Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde, the judges said that where an allegation of coercive and controlling behaviour is made, that should be the “primary issue” for a court to decide.

The judges said the approach of regarding coercive or controlling incidents that occurred between adults when they were in a close relationship as being “in the past”, and therefore of little relevance when assessing risk of harm in future, should be considered “old-fashioned and no longer acceptable”.

They also said “serious thought is now needed” to developing a different way of organising and summarising evidence to be put before a court to the detailed schedules currently in use – which lawyers had argued are a “potential barrier to fairness”.

The judges said the family courts are engaged in a “continuing process aimed at developing and improving” procedures, including the implementation of a Ministry of Justice (MoJ) report – the harm report – which concluded that the present adversarial system for resolving contact disputes is a “barrier” to the ability of courts to respond “consistently and effectively” to domestic abuse.

The MoJ has now started work on how to give effect to the new approach and is designing pilots of Integrated Domestic Abuse Courts.

The judges said there is also the Domestic Abuse Bill currently before Parliament and the president of the Family Division’s private law working group, which published its second report in April last year, and its recommendations are starting to be tested in pilot schemes.

They said there is a “limit” to the extent to which they could give general guidance in light of these initiatives and the fact that they were determining four individual cases.

The judges said in the ruling: “It would be both impossible and inappropriate for us, as judges in the Court of Appeal, following a short hearing of four appeals, to lay down comprehensive guidance in this judgment aimed at resolving (or even identifying) the many difficulties that are said to exist and which are the very subject of these more extensive endeavours.”

The four appeals, which were considered at the January hearing, were brought by mothers and involved family court proceedings concerning the welfare of children in which at least one parent had made allegations of domestic abuse against the other.

The court allowed three of the appeals and sent them back to the family court to be considered afresh by a different judge, while the fourth appeal was dismissed because the mother in that case no longer wished to overturn the order for her child to have contact with its father.

The judges said such cases are “far from rare”, with the family courts receiving 55,253 private law applications in 2019/2020 by parents seeking resolution of a dispute with the other over future care arrangements for their child.

They said it is thought that allegations of domestic abuse are made in at least 40% of this type of case which, if correct, means judges and magistrates have to consider about 22,000 such cases a year.

In addition, they said the family courts received 29,285 applications for injunction orders from parents seeking protection from domestic abuse.