The long awaited judgment on four linked appeals heard by the Court of Appeal has now been handed down. The Judgment is likely to have a big impact on the way that the family court treat allegations of domestic abuse and coercive and controlling behaviour in child contact cases.
There is a Practice Direction that the family courts follow when domestic abuse allegations have been made. Practice Direction 12J sets out what the family court have to do in cases where it is alleged or admitted that the child or other party has experienced domestic abuse.
The Court of Appeal concluded that PD12J is still fit for purpose but the issue was how it was implemented and have provided guidance to those implementing the Domestic Abuse Act and any subsequent revision of PD12J.
At present something known as a Scott Schedule is used to set out allegations in dispute. This is a rather cumbersome table setting out a list of allegations. The Court found that the value of the Scott Schedule had reduced so much that it could even be seen by some as a barrier rather than an aid to fairness. The Court suggested that in every case where there are allegations both parties should do a short written statement or oral update on the experience of being in a relationship with the other party.
The Court went further and said it was wrong for the family court to be drawn into the analysis of evidence based on criminal law principles and concepts when looking at the welfare of children and should avoid the application of criminal law approaches to when deciding whether an allegation is proved or not.
The conclusion was that the judiciary need to properly understand the nature of domestic abuse, and the subtle nature of coercive and controlling behaviour, and the effect that can have on both the other party and the children living in such a household.
Training for those involved in the family justice system, and the proper application of PD12J was seen as the way forward. As solicitors involved in this area of work we watch with interest what the impact of these Judgments will have on how the law in this area is shaped in the future.
Lucy Lightowler, consultant solicitor