Cafcass welcomes Court of Appeal judgment on family proceedings featuring allegations of domestic abuse

A judgment by the Court of Appeal* on family proceedings featuring allegations of domestic abuse has been welcomed by Cafcass, offering a revised approach in responding to such allegations in the future.

Cafcass was invited by the Court of Appeal to intervene in four named Children Act appeals, concerning the application of Practice Direction12J (PD 12J) in children’s cases where there are allegations of domestic abuse, to ensure that the voice of the child was represented. Although not representing the individual children in the specific cases, Cafcass made submissions on how the court should approach those cases where domestic abuse was alleged.

Cafcass welcomes the following findings:

  • That there is a need to review how the courts deal with allegations of domestic abuse and to move away from the expectation that evidence of abuse is based on specific incidents (although these may also be relevant and may need to be adjudicated upon) rather than on a pattern of behaviour.
  • That the risk stemming from domestic abuse may endure regardless of whether the relationship has ended, whether there is an injunction in place or whether the circumstances of the domestic abuse arose in the past.
  • That the courts should consider the experience of the relationship between the adults, the impact on the children and recognise that risk can stem from a number of incidents (and wider pattern of behaviour) over a period of time.
  • That PD 12J is fit for purpose.

The judgment refers to submissions made by Cafcass, including a proposal for early risk assessment in private law proceedings where domestic abuse is alleged. The Court of Appeal found that this should warrant close consideration at the point at which PD 12J is reviewed.

The Court of Appeal stated that it is not intending to set any legal precedents. Rather the judgement offers a revised approach to allegations which is intended to have an impact on how courts deal in future with domestic abuse, recognising that it cannot necessarily be reduced to individual incidents. This is already a feature of the training which Cafcass provides to its Family Court Advisers.

We will be accommodating the implications of the judgment into our training for practitioners. Cafcass continues to progress its Learning and Improvement Board and is represented on the Private Law Working group on wider reform, which is seeking to ensure the end-to-end design and implementation of a revised Child Arrangements Programme reflects the findings of these judgments and takes account of the findings of the MoJ Expert Panel on Harm in the Family Courts. Cafcass will continue to work with partners in the family justice sector to always improve practice such that the safety, welfare and any associated risks to children in private and public law proceedings about them are understood, recognised and effectively presented to the family court.

* Re HN and others (children)(domestic abuse: (finding of fact hearings) [2021] EWCA Civ 448

1 Comment

Will this also be applied to public law? there are similar issues where there is no concrete police evidence to substantiate the allegations of DV. Fact findings do not in my view do not always do the victim justice

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