This is a post from Sophie Smith-Holland, who tweets as @SSmithHolland.

The question of how the Family Court deals with domestic abuse has had a huge amount of public and media attention recently. Concerns have been raised that the system is placing children and victims at unacceptable risk and that there is a ‘culture of contact at all costs’. The concerns have been raised by campaigners including survivors and MPs who have described a disconnect between the Practice Directions and best practice guidelines and what actually happens in practice at courts around the country. A government led review is underway.

In these circumstances, a ‘snapshot’ look at recent published judgments featuring domestic abuse seemed timely, looking at the decisions made and how they were reached. Since we are looking at published judgments, the majority of the cases are care proceedings rather than ‘private law’ disputes between parents, which are less often published. Two earlier blogs in the ‘snapshot’ series can be read here and here.

O and Y (Children: Care Order)[2019] EWFC B22 (24 May 2019)

This blog post considers the case of O and Y (Children: Care Order) [2019] EWFC B22 (24 May 2019). It’s a sad case, with adults and children seen as functioning in a complext way as a result of overlapping factors. It illustrates other interesting points, including decisions about transparency and children speaking directly to a judge, but we are interested in the approach to domestic abuse. In particular, the judge was critical of the approach taken by magistrates in previous care proceedings in not making detailed findings on (disputed) allegations of serious domestic abuse perpetrated by the father.

The court was concerned with two children – a girl, “O” who was 13 years old and a boy, “Y” who was 9 years old. The local authority sought care orders for both children with a plan for them to be removed from their mother’s care to foster carers. O and Y had not had contact with their father for 3 years and he made an application to re-establish contact which the mother opposed, alleging that he had been abusive both to them and to her.

There had already been care proceedings in 2017 which had ended with the children staying at home with the mother under a supervision order (an order requiring the local authority to advise, assist and befriend the children). There had been a cognitive and psychological assessment of the mother which (broadly) said she had a learning disability and that there was an interaction between her personality, some clinical aspects of her presentation and that learning disability, resulting in complex issues for her in relating to and trusting people. Therapy had been recommended, and a detailed written agreement listing things that were expected to happen to help the children and the mother get the help and support they needed was drawn up.

It’s not clear why the first court didn’t make specific findings on the disputed allegations of abuse. The only relevant finding that had been made was a general one that: “the children suffered emotional harm from witnessing domestic violence between their parents.”

After those proceedings finished the local authority became concerned that the mother was not sticking to the written agreement and so they were back in court again 6 months later.

The judge looked at the things that the local authority was saying had happened since last time. The mother had not accessed the therapy the psychological report from former proceedings had said was needed, nor engaged with services or consistently enabled the children to, and so there had been no meaningful change. The children were still suffering harm, with evidence suggesting the impact on them had worsened.

The judge broadly accepted the findings the local authority sought about harm caused by the mother’s parenting except for the allegation that “the children’s views about contact with their father have been significantly negatively influenced by the mother” where he found the picture was more complex. Whilst the mother had, to a degree, projected her own feelings about the father onto the children, the overwhelming driver for their rejection of him was more likely to have been his abuse.

He considered the allegations of domestic abuse in detail and noted that:

“It is regrettable that despite the mother having consistently made allegations about domestic abuse perpetrated by the father, and the father consistently denying those allegations, the previous proceedings before the Lay Justices concluded without any findings being made on those disputed facts, save a finding that the children witnessed domestic violence between their parents and that in June 2017, the child, O, was kicked.”

The mother had made six allegations to illustrate the kind of abuse that she and the children suffered. She relied on recordings to prove that she was telling the truth and the judgment says that in them, amongst other things, the mother is heard telling the father not to kick O in the stomach, the father is heard saying that he had done it as O is an “arsehole” and the father is heard being verbally abusive by threatening to “ram” a whip or stick around O’s head so that it was “smashed”.

The Cafcass children’s guardian was clear that the recording evidenced severe domestic abuse with words and language used towards the children that would have impacted on their behaviour and caused them physical and emotional harm. Additionally, O had directly told the guardian that her father had strangled her, hurt their pets and broken their Christmas toys by stamping on them. She expressed the very clear view that she did not want to see or hear from him. O also told the guardian that she had overheard her mother’s conversations about her father’s abuse.

The only allegation the father accepted was the allegation of kicking and after hearing the audio recordings, he also accepted an allegation of “general abuse”. The judge decided:

In my judgment, the evidence before the Court is of a pattern of incidents of threatening behaviour, verbal and emotional abuse perpetrated by the father against the children and the mother. Furthermore, the behaviour of the father falls plainly within the definition of coercive behaviour, having regard to the pattern of acts of threats, humiliation and intimidation used to harm, punish, or frighten the victim. 

Having regard to the schedule of allegations and set against the background of those findings, I find on the balance of probabilities that: 

(a) on 16th or 17th July 2016, the father was abusive towards the mother and/or the children; and 

(b) in March 2016, the father kicked the child, O; and 

(c) on 16th or 17th July 2017, the father punched the child O on the head; and

(d) on 25th December 2015 and/or 16th or 17th July 2016, the father broke the children’s toys; and 

(e) On or about 16th July 2016 the father lashed out at the child, O; and

(f) On or before 16th July 2016, the father pushed the child, Y against a radiator and Y hurt his head.

Returning to the Local Authority’s pleaded threshold statement at 1(d), set against the background of those findings, in my judgment, the father’s own conduct and actions towards the children and the mother is likely to have caused the children, particularly the child O, to hold significant negative views towards their father. Both children now express extremely negative views of their father and say they do not want to see him. I note also the evidence of the Allocated Social Worker, Miss Fourie, who told the Court that, if the mother has been the victim of domestic abuse, there might be justification in the mother not promoting the relationship between the children and their father. 

Whilst I accept that the mother projects her negative views of the father onto the children and whilst I find on the evidence that the children’s negative views about contact with their father have been reinforced by the mother, it is plainly the case that the father’s abusive behaviour towards the children and towards the mother in the presence of the children will have been a hugely significant cause of the children holding negative views about him. Having regard to paragraph 1(d) of the Local Authority threshold statement, I do not find that the children’s views about contact with their father have been negatively influenced by the mother significantly.

Neither the mother, nor the local authority or guardian supported an order being made for the children to have contact with their father. His application (which he no longer sought to progress in any event by the end of the hearing) was dismissed on the basis that neither direct nor indirect contact was in the children’s interests.

Comment

Judges in final hearings in care proceedings are required to identify the issues that need to be determined for a final decision to be made – Are there facts, which if found, are sufficient to satisfy the threshold criteria for making of a care or supervision order? What findings of fact are required in respect of the key issues identified? Given that the magistrates had made 19 findings in the original care proceedings and were satisfied that the threshold had been met, they may have considered that specific domestic abuse allegations did not need to be determined to make the final decision. 

There’s limited information in this judgment about the former proceedings but it seems clear that the question of contact would have been before the magistrates in the first proceedings as the father had applied for a child arrangements order seeking visiting time, in October 2017, shortly before the first set of care proceedings. That contact application continued, without findings being made, even after the first care proceedings ended with a supervision order. And were still ongoing when the second set of care proceedings were issued as they were joined with them.

Practice Direction 12J clearly applied then, and the revised version (2017) would have been in force too. It applies to “any family proceedings” in which an application is made for child arrangements order, “or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made”.

We can speculate perhaps that it was assumed the allegations would/should be determined in the continuing private law proceedings after the first care proceedings ended. In the absence of any care order, contact would have been a matter for the mother’s exercise of her parental responsibility (upon advice of the local authority holding the supervision order), subject to the making of any order. An unsuccessful attempt at indirect contact had been made at some point (the new judgment makes this clear in determining that by May 2019 neither direct nor indirect was in the children’s interests). But we don’t really know from the published judgment why the allegations were not properly dealt with at that earlier stage. 

What was the knock-on effect of this, if anything? Well, by the end of the second care proceedings the father was no longer pursuing his application for contact as he realised that the professionals were saying that he would need to have done work to develop insight into his own behaviour and the children needed therapy, before any further consideration of future contact.

Leaving aside the issue of the work he would need to do for any change to be achieved, the children had not accessed therapy, partly due to the mother’s lack of engagement with the written agreement. Her view was that the failure of social work professionals to respond adequately to her allegations of domestic violence was the main cause of her inability to work with the local authority and other services. This was specifically rejected on the totality of the evidence by the judge who decided it didn’t explain adequately “almost a complete reluctance to assist the children accessing the support they needed”, or her failure to appreciate the support she needed to ensure meaningful change to the way she cared for them. 

Even so, it seems plain that detailed findings earlier in support of what she was saying about abuse, would have provided at least a chance of significantly altered engagement with professionals in time for the children, in light of her known difficulties trusting people and obtaining the right support from professionals who were operating (at least partly) in the dark.

All the professionals had to work with was the fact that the father had kicked O on one occasion and a pretty unsatisfactory finding that the children had “witnessed domestic violence between their parents” – plainly implying they were both as bad as each other. The audio recordings painted an entirely different picture.

Had the second set of care proceedings not been issued, can we rule out the possibility that the court originally dealing with the father’s private law application might have determined that a fact-finding hearing was not necessary due to domestic abuse having already been considered in the first set of public law proceedings? Or assume that the (limited) finding that was made by the magistrates would have operated effectively to prevent an order for contact being made?

Image with thanks to StephanieLePointon at Flickr Creative Commons