Analysis of the Historic Court of Appeal case on the Family Court and Violence against women
by Dr Charlotte Proudman
Dr Charlotte Proudman is a family law Barrister at Goldsmith Chambers specialising in violence against women and girls and a Junior Research Fellow at Queens’ College, Cambridge. Dr Proudman successfully applied for permission to appeal out of time in three of the four Court of Appeal cases, Re B-B, Re H and Re T. Dr Proudman was junior counsel in Re B-B and Re H at the substantive appeal hearing.
Introduction
For the first time in 20 years the Court of Appeal reviewed the Family Court’s failure to address the impact of rape, domestic abuse and coercive control on victims’ and children’s lives. Around 40% of children cases in family Courts involve allegations of domestic abuse. In 2019/2020 that amounted to 22,000 cases. In this conjoined appeal, four mothers argued at a rare public hearing that the Family Court minimised allegations of domestic abuse and adopted victim-blaming attitudes and rape myths. The Court of Appeal set out general guidance for the family Courts to consider when addressing these allegations and the risk of harm to a child and parent.
This appeal has been a long time coming. The family Court’s approach to abuse allegations has been a concern for decades. Lawyers, politicians, women’s rights charities and mother’s subject to family Court proceedings have been campaigning for a fundamental transformation of the family justice system for decades.
Matters came to a head when Ms Justice Russell upheld an appeal of HHJ Tolson’s fact-finding decision in which he had dismissed the mother’s allegations of abuse. The case of JH v MF [2020] EWHC 86 (Fam) is probably one of the most read and cited cases of 2020. It is certainly, the most feminist judgment I have read. HHJ Tolson held that the mother in the case had not been raped by the father, he said, “My concern about this occasion centres on the idea that the mother did nothing physically to stop the father” [§36]. Russell J made clear that this judgment was flawed [§37]. It was clearly based on an out-dated understanding of consent – and obviously used victim-blaming rhetoric and applied rape myths. At a re-trial before Mrs Justice Judd in C v D [2020] EWFC 83, the mother proved the vast majority of her allegations including sexual assault and emotional abuse [§84].
In June 2020, the Ministry of Justice published the ‘Harm Report’ which outlined significant concerns about the family court’s approach to domestic abuse in private law children cases. The Ministry of Justice received over 1,200 responses from individuals and organisations across England and Wales together with roundtables and focus groups. The report found that abuse was systematically minimised or dismissed, children’s voices were not heard, there was a pro-contact culture that facilitated unsafe contact arrangements and traumatic and re-traumatising Court processes in which abusers continue to exert their control. The panel made a series of recommendations to be taken forward by the family justice system, which remain under consideration. One of the most important issues to be consulted on (yet again) is whether the presumption of parental involvement enshrined in section 1(2A) Children Act 1989 needs to be amended in contexts of domestic abuse.
The domestic abuse bill which is still making its way through Parliament is set to make further changes to the family justice system. It will ban cross-examination by alleged perpetrators of complainants of domestic abuse and it will define children living in domestic abusive households as victims of domestic abuse. I worked closely with Peers in the House of Lords and the London’s Victim’s Commissioner to help draft an amendment calling for regular, mandatory training for family Judges on all forms of abuse. The Lords voted for the amendment and now MPs must do the same if we are to reform the culture of the family Courts.
Alongside the Harm Report and the domestic abuse bill, lawyers have been working hard to bring a group appeal to shine a light on the failings of the family justice system when hearing allegations of domestic abuse. After months of hard work and perseverance, four appeals by four appellant mothers were linked-together and leap-frogged to the Court of Appeal. The common thread running throughout the four cases was the family Court’s approach to addressing domestic abuse allegations. The Court of Appeal heard submissions over three days in January 2021 from the parties in the four-linked appeals and from four interveners: Cafcass, a group of women’s rights charities, Families Need Fathers and the Association of Lawyers for Children.
The Domestic Abuse Appeals
Judgment in the four-linked appeals was handed down on 30 March 2021 in HN and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 before the President of the Family Division, Lady Justice King and Lord Justice Holroyde. The Court of Appeal stated at the outset of their judgment that they were limited to the extent to which they can give general guidance because of the initiatives already in train by the government [§2, 19-22]. This appeal was an important opportunity to expose the outdated, sexist attitudes that are deeply embedded in the family Court. Whilst the judgment shone a light on some of these issues, it failed to attack and address the systemic failings in the family justice system.
Progress (at last!)
The judgment has definitely brought about positive progress in some areas.
Scott schedules: There was unanimity amongst the parties that Scott Schedules have become a potential barrier to fairness [§43]. The use of Scott Schedules prevented consideration of a pattern of coercive and controlling behaviour instead focusing on a few isolated incidents [§44]. However, the judgment does not advocate for scott schedules to be abandoned, instead this issue will be subject to yet further consultation.
Historical abuse: Perhaps the most significant part of the judgment, is that the Court made clear that allegations of historical abuse are relevant. No more will the Court prematurely dismiss allegations of domestic abuse on the basis that they are ‘old’ allegations.
the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being ‘in the past’, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be ‘old fashioned’ and no longer acceptable. [§52].
I recall many occasions when Judges and professionals have regarded the allegations as ‘historical’ or examples of ‘situational abuse’ within a particular relationship but not a cause of concern now the parties have separated. Or the relationship is characterised as ‘toxic’ rather than abusive.
Modern approach to domestic abuse and coercive control: The Court acknowledged that the modern definition of domestic abuse must include coercive and controlling behaviour [§29]. The Court identified the likely harm that children can suffer growing up in an abusive household, for example, where the abusive behaviour risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men [§31]. The Court noted the importance of a heightened understanding of the impact of domestic abuse on children [§24] and the importance of understanding a pattern of behaviour as abusive [§25].
Implementation of PD12J: The Court held that PD12J is fit for purpose but “the challenge relates to the proper implementation of PD12” [§28].
Critical observations
Unfortunately, that is where the ‘progress’ in the judgment largely comes to an abrupt end – and my critical observations come into full force.
Modern approach to domestic abuse is not understood: Worryingly, the Court held that they are “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” [§53]. This is contrary to the Harm Panel’s findings in the Ministry of Justice Report which found systemic failings in the family justice system – and most definitely contrary to my experiences and my colleagues experiences in the family justice system.
Focusing on the mens rea of perpetrators: The Court held that “much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour” [§32]. This could be cause for concern as some perpetrators might not be aware that their controlling behaviour is abusive and harmful towards their partner and child but the consequences are clear as day. I recall a case where a religious father had apparently made it plain to the mother that if they married then she would be expected to comply with his every demand and whim – as would the child. The mother married him, mainly due to expectations from within her community. She described a controlling relationship where he controlled her clothing, where and when she left the house and her ability to work and maintain independence. The family Court Judge found that the father’s behaviour was not controlling because the mother had knowingly signed up to a life where the father controlled her and the father did not intend to abuse or harm her and the child. This, in my view, is a harmful judgment which reflected an ignorant attitude towards freedom and consent in a patriarchal familial context. It also failed to address whether a person can even consent to a life of servitude. As a result of this out-dated approach, the risks to the child were ignored and the lifestyle adopted by the father likely continued.
The court refused to apply the criminal definition of rape or consent, contrary to the judgment of Russell J in JH v MF. Instead of applying the criminal law definition of rape, family Judges are encouraged to consider the following approach:
it can be seen that there is a clear distinction on the one hand between Judges needing to have a sound understanding of the potential psychological impact serious sexual assault may have on a victim’s behaviour, both during and after the event, and in the way that they may give their evidence and present in Court, and on the other of the importance of Family Judges avoiding being drawn into an analysis of factual evidence based on criminal law principles and concepts [§65].
However, there are a number of problems with Court’s approach to allegations of rape:
1. A sound understanding of the psychological impact of rape on a victim’s behaviour would require an expert report. No Judge is an expert in the presentation of trauma upon a victim’s behaviour and body language – both before, during and after a fact-finding hearing.
2. It is understood that family Judges are not all trained in respect of a broad array of abuse from rape to coercive control, as well as the impact of trauma. To apply such a considered approach, they would need to have undergone extensive training at the very least.
3. Failing to apply criminal law concepts to rape, even in respect of ‘consent’, will inevitably mean the status quo prevails in family Courts. Judges are left to make it up as they go along. I have seen all sorts of bizarre decisions from our Courts, from reluctant consent, to partial rape, to unwelcome and deeply unpleasant sexual intercourse – none of these descriptions amounted to rape or abuse. It is frankly astounding. These descriptions are rape.
Relevance of sexual history and disclosure of intimate material: The Appeal Court missed an important opportunity to address the common occurrence of mothers being cross-examined about their sexual history, past relationships and medical history because it was “beyond the scope of this judgment”. First, this is incorrect. The issue of sexual history was relevant in the case of Re H (more below). Second, I often see mother’s medical notes being trawled through and routinely used to attack their credibility: they are demeaned, humiliated, gaslighted, portrayed as “mad”, sexually lascivious, recklessly promiscuous, somehow less than us. Intimate videos and photographs are presented to Judges without the mother’s consent to apparently show that they had consented to sex on some occasions so she cannot possibly have been raped. Using victim’s medical notes and sexual history against them is abusive. This is another struggle we must not give up on.
The Four Individual Appeals
Now turning to the four appeals and the decisions reached therein. The Court’s decision in respect of the four appeals was as follows, Re B-B, Re H-N, Re T were allowed and Re H was refused.
i) Re B-B: allowed
In this case, the mother appealed the making of a consent order for contact with the father on the basis that the Court failed to address the unresolved allegations of domestic abuse and rape – and the judge applied undue pressure on the mother to accede to the consent order [§83]. The comments made by the Judge include:
the Judge said that ‘if this goes on the child will be taken into care and adopted’. Unsurprisingly, the mother became deeply distressed and can be heard crying on the tape. [§93]
The Judge then said that it may be that he would have to report the matter to social services. The exchanges continued in similar vein with the Judge saying that the parties were where they are ‘because of your own making’. [§95]
The Judge said that the parties should ‘sort it out’ and that ‘you should have had the riot act read to you months ago’. The parties were then sent out to see if they could reach an agreement as to contact. [§96] Author’s comment: This was in a context when there was a non-molestation order in force preventing the father from having contact with the father. Encouraging mediation/ADR in such a context is contrary to CEDAW.
At the conclusion of the hearing, the Judge said that contact would have to ‘come out of the contact centre’ at some point and that ‘this is why fact findings are often a complete waste of time, because the end result will be that there’ll be, at some stage, contact outside with father.’ [§98] Author’s comment:This shows the minimisation of allegations of abuse and the Court’s pro-contact culture at all costs.
The Court held that the mother’s consent to enter into a consent order for contact was not free and full, “It is hard to imagine a more serious and frightening prospect for any mother, let alone a young, single mother, than that of having her child taken off her and placed for adoption” [§110].
ii) Re H: refused
The mother appealed against HHJ Tolson’s decision that the allegations of rape and domestic abuse were ”not proven and did not happen” [§116]. The Court refused the appeal on the basis that it was academic [§151]. Contact had been taking place between the child and the father for 7 hours each fortnight. The mother did not oppose limited contact but the father sought regular staying contact, at which point, the mother said her allegations should be properly investigated by the Court to assess the risk posed by the father to the child. The mother’s case was, if contact increases, so does the risk to the child. The Court failed to address the mother’s submissions and simply dismissed the mother’s appeal without engaging with the mother’s arguments that the trial Judge’s findings of fact were wrong.
It is important to review some of the trial Judge’s comments in the original judgment of H v C (Fact finding) [2019] EWFC B94 which the Appeal court declined to even engage with:
“Thus, even if what the mother has to say is correct, these allegations take place within a very particular context. Even if they are true, I make the bold statement that they would have, in my judgment, almost no implications at this stage for the future development of the relationship between the father and K” [§6]. Author’s comment: This is an example of minimising coercive control and failing to understand the risk of harm posed to the child and the mother.
“Only one allegation by the mother involves K herself, and that indirectly, because it is said that in the aftermath of the second alleged rape incident the father was guilty of a physical assault on the mother, banging her head against a cupboard door. This took place in the presence of both of the young children. It seems to me, however, that I should be very slow to infer from this that there is any direct risk to the child herself” [§7]. Author’s comment: It is extraordinary that the Judge fails to understand the nexus between physical abuse towards a mother witnessed by a child and risk of harm to the child by the father.
“I am afraid I find that an unconvincing explanation in the context of the parties having just met for the first time and being about to embark on a stay together of four weeks when, as I have already indicated, they remained in the same hotel room together throughout enjoying, it is common ground, consensual sex on many occasions. It is deeply unconvincing stuff” [§15]. Author’s comment: This part of the judgment, in my view, reflects a strong example of victim-blaming and rape myths. If a woman consented on separate occasions, it is deeply unconvincing that she could have been raped.
“The compliant victim of domestic abuse is not unfamiliar in this type of case. But the reality is that this case would represent an extreme example of the phenomenon, and it is another factor which tells against the accuracy of the mother's version of events” [§20]. Author’s comment: A Judge whom is not an expert in domestic abuse or victim’s likely response, suggests that a victim must act in a certain way if she is to be a genuine victim.
The Court’s failure to address these blatant examples of rape myths, victim-blaming and a failure to address the risk of harm that flows to a child, was a missed opportunity and it reinforces the minimisation of abuse.
iii) Re H-N: allowed
This was the second appeal in respect of HHJ Tolson’s fact-finding judgment in Re H (A Child) [2020] EWFC B63. The mother in this case had made allegations of rape, domestic abuse and coercive control, which were dismissed by the trial Judge. It is important to consider some of the comments made by HHJ Tolson, many of which mirror the tone of the comments made in Re H.
“…Moreover, it should also be understood that such allegations – of an occasion on non-consensual sex in the midst of an otherwise entirely consensual relationship - are nowadays very common in child arrangements proceedings such as these” [§5]. Author’s comment: The trial Judge demeans the significance of rape, in my view, by referring to rape allegations as ‘common’ in the midst of ‘an otherwise entirely consensual relationship’.
“Any Court must also bear in mind that the making of allegations of this kind is increasingly common. I am not making a political point in a judgment where such a comment would have no place when I say that I believe it is necessary to factor in the effects of a system which encourages allegations of domestic abuse. There are very significant advantages to a litigant portraying herself as a victim of serious domestic abuse: public funding is obtained (and it is known there will be none on the other side); considerable professional sympathy and assistance is usually gained from Cafcass and other agencies; special measures in Court are put in place merely on the basis of the allegations” [§8]. Author’s comment: The trial Judge makes a political statement that apparently complainants secure advantages thus suggesting that they might fabricate allegations to secure these advantages: legal aid, professional’s sympathy and special measures in Court.
“Was this the relationship characterised by the deeply-controlling father described by the mother, a relationship in which she was blameless and under his spell? Or is the problem in this case the deeply-troubled mother with mental health difficulties unrelated to the father's behaviour and responsible herself for the wild, unboundaried behaviour described by the father?” [§3] Author’s comment: The implication here is that for the mother to be a victim of domestic abuse, she must be ‘blameless’, which the appeal court held was wrong [§218].
“First, this case is not about the law of consent in the context of rape. No law has been cited to me. No point has been taken on this. As with so many cases, the question is which of two people is to be believed.” [§24] Author’s comment: This part of the judgment perfectly exemplifies my concerns about the Court’s failure to set out a definition of consent and rape that family Judges can apply. Without a definition, Judges, such as HHJ Tolson, will merely consider whether the mother or father is believed without even considering the overall context of the relationship and the meaning of free and full consent.
The Court of Appeal held that a man slapping a woman who is heavily pregnant cannot be held as “trivial” [§202]; the trial Judge failed to consider the father’s admissions of violence and discounted them [§204, 219]; and the trial Judge’s response minimised the allegations and admissions made by the father of abuse.
i) Re T: allowed
The mother had made allegations of coercive control, domestic abuse and anal rape against the father. Surprisingly, HHJ Evans-Gordan’s trial judgment has not been published, this is despite the trial judgments in the other appeals having been published. The Court refused the mother’s appeal in respect to the allegation of anal rape on the basis that “the first instance Judge had the advantage of seeing the parties give evidence” [§163]. This, in my view, was clearly wrong. The trial Judge said that anal sex was “not necessarily something she wanted or enjoyed” and the mother felt it was “her duty”. This is an example of victim-blaming and rape myths being peddled by the Family Court. The trial judge stated that the mother is “no shrinking violet” because of her sexual history. It is therefore woefully disappointing that the Court not only upheld this sexist and harmful decision – but it failed to lay out clear guidance on the family Court’s correct approach to sexual history.
The trial Judge did find three allegations made by the mother had been proved [§164]. Namely, the father slapped the mother [§165], the father held the mother’s neck and used words to the effect that he would kill her but it was in anger and did not impact any genuine threat to life [§167], the father put a plastic bag on the mother’s head but it was just a prank [§169]. However, the trial Judge found that the father was not a violent man as portrayed by the mother and posed no risk to the child [§171]. The appeal was allowed because the Judge failed to appreciate the seriousness of the two incidents where the father made reference to dying or to killing [§174].
Conclusion
The appeal decision is a step in the right direction however there were missed opportunities to:
1. Clarify the law and the key principles that apply to rape and consent.
2. Give guidance on the applicability and admissibility of a parties’ sexual history.
3. Give guidance on disclosure of intimate images/videos.
4. Clarify the need for judges to explicitly consider the impact of trauma on the quality of a complainant’s evidence.
There remain further key challenges ahead for the family justice system. These are just a few areas amongst many other, which must be addressed:
1. Regular, mandatory training for the judiciary, magistrates and professionals in respect of all forms of abuse.
2. Transparency - The lack of transparency and accountability around decision making in the Courts has led to stagnation in terms of policy development and safeguarding.
3. Publishing judgments – Judgments in domestic abuse cases should be a matter of public record given that they are of the upmost public importance.
4. Statistics – The Ministry of Justice fails to keep statistics in respect of the number of fact-finding hearings ordered and refused and the outcomes of these hearings.
5. Presumption of contact with a parent to be removed in cases where domestic abuse is proven.
6. Domestic abuse champions appointed in each Family Court to ensure that (a) correct procedures are followed including special measures and PD12J; (b) that there is accountability and monitoring where there are procedural errors and a failure to apply the correct definitions of domestic abuse, which could inform future training.
7. Introduce domestic abuse and trauma informed Courts to handle such cases.
8. Checks and balances: Appeals concerning domestic abuse allegations should be transferred to the High Court.
9. Extend the time to appeal from 21 days to 3 months in domestic abuse cases.
10. Prohibit a complainant of domestic abuse from having to pay for a perpetrator’s assessment pursuant to Part 25 of the FPR or to pay for supervised/supported contact with a child.
11. Make refuge residential addresses confidential.
The biggest issue facing the family justice system, which will need to be addressed in due course, is parental alienation. The Harm Report states that parental alienation is often used as a tool to undermine allegations of domestic abuse. In many cases in which mother’s allege domestic abuse, fathers allege parental alienation as a means to undermine their allegations of domestic abuse. This is a worrying trend that has become increasingly common following the traction and power of the parental alienation lobby in America. Findings of parental alienation can have devastating consequences, resulting in the removal of children from their mothers to reside with fathers, many of whom have often been accused of domestic abuse. In some cases, children are prevented from having contact with their mother. There are cases in which a transfer of residence process has failed and caused the child even more harm. There is real concern that the voice of the child is ignored in these cases, especially teenage children. The proliferation of (often the same) experts in this field has legitimised a so-called ‘pseudo-science’, which is a heavily contested concept based on highly gendered stereotypes.