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Fri 17 September 2021

The Court of Appeal heard four cases relating to domestic abuse and the family courts – but campaigners fear that the judges missed the chance to encourage real change, reports Sian Norris

Feminist organisations have accused the Court of Appeal of missing an opportunity to bring about a change in the culture of family courts after it published its judgment on four cases involving domestic abuse. 

The appeals were brought following the publication of the Harm Report last June by the Ministry of Justice, which concluded that there are systemic problems with how family courts deal with the issue of domestic abuse.  

In its response to the cases, the Court of Appeal provided guidance that outdated views of controlling and coercive behaviour are no longer acceptable in family courts and that judgments which fail expressly to consider the relevance of coercive control may therefore be appealable.

Dr Charlotte Proudman, a barrister who provided legal representation for two of the women involved, tweeted that the judgement included “progressive guidance on how family courts address allegations of rape, domestic abuse and coercive control”.

Coercive control was made a crime at the end of 2015. It is defined by the Crown Prosecution Service as “controlling or coercive behaviour in an intimate or family relationship which causes someone to fear that violence will be used against them on at least two occasions; or causes them serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities”. The offence carries a maximum sentence of five years’ imprisonment and/or a fine.

Olive Craig, senior legal officer at legal charity Rights of Women, echoed Proudman’s praise, telling Byline Times that “the positives in the judgement are the comments made about coercive control. This is a vital step in getting the family courts to really take it seriously and start to recognise the harm it causes”. 

However, Rights of Women, Women’s Aid, Welsh Women’s Aid and Rape Crisis England and Wales have criticised the judgment for failing to send a clear message that a change in the culture is necessary to protect women and children from the cycle of abuse that can have life-long, and sometimes deadly, consequences.

“We are frustrated that, despite hearing clear examples of the family courts minimising male violence, the judges still didn’t make that clear link between what they saw in the cases, the evidence in the Harm Report, and what we’ve been saying for years about the minimisation of domestic abuse and the prioritisation of contact [with children] over women’s and children’s safety,” Craig added.

Failing to make this link misses an opportunity, according to Rights of Women, “to address the deeply entrenched pro-contact culture identified in the Harm Report”.

The coalition of women’s organisations also criticised the Court of Appeal for failing “to grapple with the procedural flaws in the way victims of sexual violence are treated in the family court”. The Court of Appeal stated that this was “beyond the scope of this judgment”.

Craig told Byline Times that “all these cases raised issues of sexual violence and we heard lots of submissions on the ways in which the family courts respond to allegations of rape. We don’t think it an adequate response to say that sexual violence is not in the scope of the judgment”.

Approximately 40% of the 50,000 private law applications made to family courts in 2019/20 involved an allegation of domestic abuse. 


‘No Room for Complacency’

The Court of Appeal judges were “satisfied that the modern approach to domestic abuse” – which among other things recognises the impact of violence in the home on children’s welfare – “is well understood and has, through experience and training, become embedded with the vast majority of judges and magistrates sitting in the family court”.

However, they warned that there is “no room for complacency and the family court is engaged in a continuing process aimed at developing and improving its procedures”.

A family barrister, who spoke to Byline Times anonymously, said that they “do not agree with the comment that judges are well-trained on these matters”. They said: “It’s all very well having the guidance but the lower courts do not have a consistent approach to domestic abuse”. They recognised that this variable approach is partly “about training but part of it is resources”.

However, the barrister praised guidance in the judges’ summary that recognised that more needed to be done to understand patterns of abusive behaviour. 

“From a practical point of view,” they told Byline Times, “it’s important to recognise that patterns of incidence relate not just to coercive behaviour but all forms of domestic abuse. In some cases it might not be possible to establish every individual event of abuse, but it can be possible to establish a pattern of behaviour. So I do think this aspect of the guidance is really important.” 

The barrister also praised that the guidance sets out how domestic abuse impacts on children, saying that “it’s really important, especially understanding the impact on children who are learning a set of values that says women are inferior to men”.


A History of Poor Judgement 

The Court of Appeal considered four cases, upholding three.

In every case, Craig explained, it heard how judges “minimise male violence”. She cited an example where a man put a plastic bag over his victim’s head, but where the judge stated: “I am not satisfied that it represented an attempt to kill, a threat to kill or that the mother felt threatened… It may be that it was some sort of prank by the father that he now denies because of the allegations made against him.” 

“That is a clear example of the courts minimising domestic abuse,” said Craig. “We need an understanding that male violence is pervasive. Minimising the impact it has is letting men get away with it.”

In the fourth case heard by the Court of Appeal, the family court’s Judge Robin Tolson was found not to have looked at a “pattern of control and the abuse which were demonstrated even on the basis of the father’s admissions alone”. In that case, Tolson commented that allegations of rape are “increasingly common” and expressed his belief that “it is necessary to factor in the effects of a system which encourages allegations of domestic abuse”. The Court of Appeal found that Tolson had “discounted the father’s admissions of domestic abuse perpetrated over a significant period of time”.

Last year, the judge hit the headlines after comments he made about sexual violence caused controversy. During a case in which a woman alleged rape, he claimed that, as she took no physical steps to prevent the violence, the incident “did not constitute rape”. The woman’s case was reviewed in November, when it was ruled that her ex-partner had been “sexually and emotionally abusive”. 

“We wanted to see a clear culture shift in the way family courts deal with domestic abuse,” Craig explained. “The evidence is that we need this culture shift. And the Court of Appeal didn’t send that clear message.”

Katie Russell, of Rape Crisis England and Wales added: “We will continue to highlight the real and urgent need for culture shift in the family courts.”

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