Domestic abuse and child arrangement proceedings: identifying and assessing the risk of harm, including coercive and controlling behaviour

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What can go wrong in child arrangement proceedings where there are allegations of domestic abuse?

Research suggests that there are significant problems with the way that the family courts deal with child arrangement proceedings involving domestic abuse. As allegations of domestic abuse are present in the majority of cases reaching the courts for a decision about who a child should spend time with, it is essential that the process and outcomes are safe for non-abusive parents and children. However, the recent conjoined appeal Re-H-N and others highlights flaws with the fact finding process and the presumption of parental involvement, resulting in minimisation of domestic abuse. These flaws were also identified by the 'Harm Panel' report (2020), which made recommendations for fundamental reforms. The Court of Appeal does not specify the nature of the reforms needed, but does confirm the need for a fresh approach. This case note will consider what went wrong in the four cases considered by the appellate court and how the cases bolster the urgent need for reform

Revisiting fact-finding in child arrangement cases where there are allegations of domestic abuse

This case note considers the appellate court’s guidance on fact-finding in child arrangement cases where there are allegations of domestic abuse in light of an earlier appellate decision on how to approach allegations of ‘coercive control’ which may, or may not, include physical or sexual abuse. On the particular facts, allegations of sexual abuse, which at the original fact finding hearing were upheld on the ‘balance of probabilities’, were overturned on appeal. The appellate court were not convinced that there was sufficient evidence of rape, or of a broader pattern of coercive control. Nevertheless, they confirmed the importance of looking for a ‘pattern’ of behaviour rather than focusing on specific incidents. The judgment is significant because it highlights the policy of trying to avoid litigation, even where there are allegations of domestic abuse. The alternative of mediation, incentivised with public funding, which not available for legal advice and representation in many instances, is strongly promoted. Undoubtedly, this may be because of the flaws of the adversarial approach, one of which may be unfounded allegations of ‘parental alienation’ to counter allegations of domestic abuse. However, mediation is not a panacea and holds its own dangers in domestic abuse cases, and these are not addressed in the judgment. The new pilots of an alternative ‘investigative’ approach to child arrangement cases, perhaps hold greater promise of a breakthrough in an area which continues to present significant problems for the legal system and risk of harm for children and ‘protective’ non-abusive parents

Specialist domestic violence courts for child arrangement cases: safer courtrooms and safer outcomes?

Child arrangement cases in England and Wales are dealt with in the ordinary family courts. Whilst a special practice direction is applicable to child arrangement proceedings where there are allegations of domestic abuse, there is no specialist domestic violence court in the family justice setting. However, court specialisation is a feature of the criminal justice system and has been demonstrated to have success in domestic violence cases. Some of the potential benefits of specialisation, such as the provision of safer courtrooms, might be transferable to the family justice setting. Given the well documented problems of ordinary courts dealing with child arrangements in domestic violence cases, this article considers whether court specialisation could provide victims with safer courtrooms and safer outcomes in child arrangement cases

‘It isn’t just a shove’: Judicial understandings of domestic abuse and the challenges of recognising and responding to ‘coercive control’ in the criminal and family courts

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Coercion, Control and Criminal Responsibility: Exploring Professional Responses to Offending and Suicidality in the Context of Domestically Abusive Relationships

Significant strides have been made in the law's recognition of harms arising from domestic abuse. In England and Wales, the Serious Crimes Act 2015, and in Scotland, the Domestic Abuse (Scotland) Act 2018, have supported a more holistic understanding of the dynamics of abuse and the means by which coercion and control are deployed to cement and supplant perpetrators’ violence. In this article, we explore what the introduction of these offences means in other situations where questions regarding the impact of abuse upon victims’ agency arise: specifically, where victims commit an offence that might have been compelled by abusive behaviour or take their own lives in contexts that might indicate perpetrators’ liability for suicide. In particular, drawing on interviews with professionals across both jurisdictions, we highlight the precarity of recognition of the effects of coercive control and the need to engage in more complicated discussions about when and why context matters