Introduction by Harriet Wistrich
In January this year, the Court of Appeal considered appeals in four cases which raised similar issues concerning family court judgments on child contact cases where there are allegations of domestic abuse. On 30th March, the court handed down judgment
We are pleased to include with this blog a detailed analysis of the judgment and outcome prepared by Charlotte Proudman, junior counsel for the appellants in two of the four cases. She contextualises this analysis against current practice in the family courts and beyond.
As Charlotte writes in her 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.”
The judgment was delivered at a time when the Domestic Abuse Bill continues to be debated in parliament and following the Ministry of Justice publication of the ‘Harm Report,’ which outlined significant concerns about the family court’s approach to domestic abuse in private law childrens’ cases. The court also received submissions from four third-party interveners, including a coalition of women’s groups on the one side and the men’s rights lobby group, ‘Families need Fathers’ on the other.
The Centre for Women’s Justice focuses primarily on accountability around violence against women in the criminal justice system. However, there is considerable cross-over with the family courts, and we continue to receive many pleas for help from women experiencing prejudice and discrimination in the family justice system. It is quite apparent that many victims of domestic violence are not getting justice within the family courts, sometimes with heart-breaking accounts of women losing custody to abusive fathers or being disbelieved about their allegations of sexual violence.
Many of the stories about the attitude of judges and others in the family courts echo those we regularly see in the criminal system, which arise in the context of a misogynistic culture, which allows the prevalence of victim-blaming, myths and stereotypes, and poor outcomes for victims.
“This appeal was an important opportunity to expose the outdated, sexist attitudes that are deeply embedded in the family Court.” Charlotte Proudman writes, but “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.”
The main positives arising from the judgment included a recognition that so-called ‘Scott Schedules’ commonly used in such cases led to a focus on isolated incidents of domestic violence, which prevented a true presentation of the nature of the abusive relationship, including understanding patterns of coercive and controlling behaviour. The court also recognised the importance of not disregarding historical allegations of abuse particularly relevant to understanding coercive and controlling behaviour
Disappointingly the court did not accept that a ‘modern approach to domestic abuse’ has yet to become embedded in the training and experience of magistrates and judiciary and most alarmingly, the court refused to accept that a criminal definition of rape and consent must apply in family law proceedings.
Charlotte’s analysis highlights a number of missed opportunities and identifies further key challenges for the family justice system going forward. What is clear across both the family court system and the criminal justice system is that assumptions that most professionals now understand the nature and dynamic of domestic abuse are not borne out in the experience of survivors and frontline practitioners. Until there is an understanding of the underlying structural inequality between men and women in a society still steeped in misogynistic myths, grave miscarriages of justice will continue in both the family and criminal courts.
Charlottes analysis can be read here in full - Analysis of Historic Court of Appeal case on the Family Court and Violence against Women