Court of appeal judges have advised that family courts should prioritise the issue of coercive and controlling behaviour when considering disputes between parents in matters relating to domestic abuse.
Two months after hearing four linked appeals related to family proceedings involving the welfare of children, three senior court of appeal judges, namely Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde, outlined the fresh guidance on how such cases should be approached as part of a detailed 47-page judgment.
The four appeals, which were considered at a hearing in January, were brought by mothers and involved the welfare of children in which at least one parent had made allegations of domestic abuse against the other.
The ruling made by the three senior judges stated that the courts should “prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations”.
The judgment highlighted that abuse does not always cease when a relationship does and that, even in circumstances where there is an injunction in place, subtle forms of abuse can endure.
The judges said that the idea of coercive incidents that occurred between adults when they were in a close relationship being “in the past” (and therefore without relevance when assessing risk of harm in future) should be considered “old fashioned and no longer acceptable”.
They also added: “We are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the family court.
“Where however an issue properly arises as to whether there has been a pattern of coercive and controlling behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.”
The family courts received 55,253 private law applications in the past year from parents seeking resolution of disputes relating to child contact. Domestic abuse allegations were present in at least 40% of these, which, if accurate, means judges and magistrates consider approximately 22,000 such cases a year.
The ruling noted that despite the high caseload, the need to identify and determine issues of domestic abuse is “rightly afforded a high level of importance”. The judgment stated that a family court judge who failed to consider coercive control where it was relevant may be held on appeal to have “fallen into error”.
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 and Wales, Families Need Fathers and the Association of Lawyers for Children.
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