Family Law Hub

H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448

The Court of Appeal (the President of the Family Division, King LJ and Holroyde LJ) was concerned with four appeals in ongoing Children Act 1989 proceedings involving allegations of domestic abuse by one parent against the other. The decisions on the appeals, the court explained, turned on long-established principles of fairness or the ordinary approach to judicial fact-finding, and none purported to establish new law, or to establish any legally binding precedent. However, the court noted, at least 40% of private law children cases now involved allegations of domestic abuse, about 22,000 cases each year, and so the court took the opportunity to give more general guidance about such matters, such as the proper approach to deciding whether a fact-finding hearing was necessary, and whether, where domestic abuse was alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour rather than specific incidents. It noted that there had been effective unanimity in submissions to the court that the value of Scott Schedules in domestic abuse cases had declined to the extent that they were now a potential barrier to fairness and good process, rather than an aid. Reducing the focus to a limited number of events created the risk of the court losing the vantage point needed to consider whether there had been an overall pattern of coercive and controlling behaviour. The appeals in Re B-B and Re T were allowed, and the matters remitted to different judges. The appeal in Re H-N was allowed and the matter was remitted to the Designated Family Judge at the Central Family Court for further case management. The appeal in Re H was dismissed.


Published: 31/03/2021

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