Landmark judgment on domestic abuse cases by courts

The four conjoined appeals have been brought by mothers who have made serious claims against the fathers of their children, and challenges the decisions made by judges at the family courts over the last two years.

Mills & Reeve acted for one of the fathers in Re H-N and Others (children) (domestic abuse: finding of fact hearings).

The appeal raised issues of how claims of coercive and controlling behaviour are handled in the family courts. This long-awaited guidance follows the August 2020 report “Assessing Risk of Harm to Children and Parents in private law children cases”.

As a result, Mills & Reeve hope to see the following introduced:

• Earlier identification of domestic abuse cases
• Improved liaison between Cafcass, the police, children services and other third-parties, to provide best evidence, and support for families
• Improved procedure and documentation to accurately set out/plead the complexity of these delicate and nuanced cases, for example where rape or coercive control is alleged – the judgment specifically raised that the use of Scott schedules ‘can result in minimisation of the abuse’
• Allocation of judicial continuity and sufficient resources (including court time whilst avoiding court delay)
• Proper use of support services, including Children’s Services and psychological services to consider the experience of the alleged victim, particularly where trauma has been experienced
• Greater consideration as to how we treat vulnerable witnesses in proceedings. This chimes with the anticipated implementation of the Domestic Abuse Bill which is currently before Parliament
• Greater involvement of Cafcass to ensure the voice of the child is heard
• A retreat from the presumption that contact is always in the child’s best interests even where findings of abuse are made.

Zoe Fleetwood, Partner at UK law firm Mills & Reeve who acted on the case, says:“Today’s landmark judgement is significantly important at a time when lockdown has seen a rise in domestic abuse, and children law applications have seen a year-on-year increase. This decision heralds a new approach for the family courts dealing with allegations of abuse. This clear guidance, to be enhanced by work arising from the Private Law Working Group and a Practice Direction, directs a move away from the use of Scott Schedules, which, this judgment recognises, risked minimisation of abuse.

“Mills and Reeve continue to offer expert legal services in these difficult cases. The public need court time and resources for justice to be properly carried out, but also, delay must be avoided in the best interest of the child. It remains our priority that the children at the heart of any family breakdown are put first.”