Coercive behaviour must be prioritised in UK domestic abuse cases, court says

The family courts should prioritise the issue of coercive and controlling behaviour when considering disputes between parents in domestic abuse cases, court of appeal judges have advised.

Three senior judges set out fresh guidance on how these sensitive cases should be approached as part of a 47-page judgmenthearing four linked appeals brought by mothers over child contact.

Three of the four appeals, each involving allegations of coercive control and partner rape, were granted.

The ruling by Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde states 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”.

It highlighted that abuse does not always end when a relationship does and that, even with an injunction in place, subtle forms of abuse can persist.

The judges said regarding coercive incidents that occurred between adults when they were in a close relationship as being “in the past”, and therefore without relevance when assessing risk of harm in future, should be considered “old fashioned and no longer acceptable”.

Charlotte Proudman, a barrister who represented two of the mothers, welcomed the guidance but said there were some gaps.

“It was disappointing that judges shied away from clarifying how the family court should deal with rape cases, including the prevalence of rape stereotypes and myths.

“We are told the criminal definition of rape should not be used in the family courts but I’m left really unclear on what definition should be used instead. I’ve seen judges use terms such as ‘partial rape’ or ‘unwelcome sexual intercourse’ but what do these descriptions mean?”

The family courts received 55,253 private law applications in the last year from parents seeking resolution of child contact disputes.

Domestic abuse allegations are present in at least 40% of these, 약 22,000 a year.

Despite the high caseload, the need to identify and determine issues of domestic abuse is “rightly afforded a high level of importance” said the ruling.

A family court judge who fails to consider coercive control where it is relevant may be held on appeal to have “fallen into error”, the judgment stated.

Victims’ groups refuted the assertion that a “modern approach” to domestic abuse is already embedded in training and understood by most family court judges.

Concerns around the perpetuation of “rape myths” and a “pro-contact culture”, as described in the Ministry of Justice harm report, were raised by charities making representations to the January hearing.

Lucy Hadley of Women’s Aid Federation of England said: “We hear daily from survivors who tell us abusers use the family courts and child contact arrangements as weapons to continue control after they’ve escaped. We welcome the conclusion family judges must do more to investigate patterns of coercive and controlling behaviour and examine what harm this has upon a child.

“But we are severely disappointed the court of appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger. We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors.”

Katie Russell, of Rape Crisis England & Wales, said she was disappointed that the ruling “declined to tackle the significant problems of victim-blaming, rape myths, lack of understanding of the law on sexual consent from family court judges, and the overall minimisation and dismissal of sexual violence and abuse in the family courts”.

The three cases successfully appealed will now be heard in front of a different judge.

They included the case of a mother who challenged an order about child contact by Judge Richard Scarratt who threatened to take her child into care.

The judgment stated: “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.”

The judges said the family courts are in a “continuing process aimed at developing and improving”.

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