The recent case of H-N (Children) (Domestic Finding of Fact Hearing)  EWCA Civ 448 highlighted the growing problem of domestic abuse within children cases.
Over 40% of the private law children cases that currently come before the family Courts have elements of domestic abuse.
In four separate appeals, heard together involving allegations of domestic abuse by one parent against the other, the Court of Appeal gave general guidance about how the Family Court should approach cases where domestic abuse was alleged to be affecting the welfare of children.
The Court said that Finding of Fact hearings to determine whether domestic abuse had taken place was not always necessary. The Court needs to consider if a hearing is proportionate to determine contact issues.
Whilst the Court in the above case indicated that these hearings were not always needed, they play an important part in cases involving domestic abuse. Unlike the criminal courts, the level of proof is lesser in the family courts. The criminal courts have to prove matters beyond reasonable doubt. The family courts have to deal with matters on the basis of balance of probabilities. This means the Court can, if needed, make findings to protect the victims of domestic abuse and children from further abusive behaviour.
Further, the definition of domestic abuse has been widened to also include abuse against children, and, also, shifted from purely looking at physical abuse, to also consider other patterns of behaviour, such as coercive control and threatening behaviour.
The Court also stated that Judges have to be alive to the fact that coercive or controlling incidents from the past might be relevant to a risk of future harm. The Court has further stated that Judges who fail to expressly consider this, might find their decisions overruled on appeal.
This guidance is incredibly important in family cases, and should help to provide some reassurance that domestic abuse issues will be taken seriously by the courts.