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Controlling and coercive behaviour in child arrangements cases – continued3rd June 2021 Family Law
In February 2021, JMW’s Hannah Hughes brought you her thoughts on the four appeal cases concerning the way domestic abuse is approached in cases involving arrangements for children. The judgments for these cases have now been handed down, and the discussions regarding domestic violence and how it is treated by the courts has been reignited.
Particular attention has been on Practice Direction 12J of the Family Procedure Rules. The changes to this area of the law are likely to have a significant impact on Family law practitioners and their clients. The Judges involved stressed they were not establishing ‘new law’, and that PD12J is still fit for purpose, but have provided ‘pointers’ to allow for the correct implementation of the Domestic Abuse Act. One significant change is likely to be the departure from Scott Schedules, which are currently used to detail individual allegations of domestic violence, with the court calling them a ‘potential barrier to fairness and good process, rather than an aid’.
The impact of these cases will be felt across the Family Law spectrum where domestic violence is encountered. For example, in non-molestation application proceedings, Judges are likely to refer more regularly to section 46(3A) of the Family Law Act 1996. This prevents a Judge from accepting undertakings agreed between the parties when the respondent has used or threatened violence against the applicant or a relevant child. Historically a Judge may have used their ‘discretion’ (although this is not technically afforded to them by this section) and allowed for an undertaking to be agreed so that the applicant is provided the protection a non-molestation order would give, without the need for a fully contested final hearing, and the associated costs of this. Moving forward, this is likely to be something Judges are more reluctant to do and we could see an increase in final hearings in which both parties are asked to give evidence. Whilst this issue does not relate directly to the judgments recently handed down, it shows the likely impact that it will have on the attitudes of the judiciary when dealing with domestic violence within Family Law proceedings.
To read Hannah’s blog on this topic you can click here.