Revisiting fact-finding in child arrangement cases where there are allegations of domestic abuse

Abstract

ABSTRACT This case note considers the appellate court’s guidance on fact-finding in child arrangement cases where there are allegations of domestic abuse in light of an earlier appellate decision on how to approach allegations of ‘coercive control’ which may, or may not, include physical or sexual abuse. On the particular facts, allegations of sexual abuse, which at the original fact finding hearing were upheld on the ‘balance of probabilities’, were overturned on appeal. The appellate court were not convinced that there was sufficient evidence of rape, or of a broader pattern of coercive control. Nevertheless, they confirmed the importance of looking for a ‘pattern’ of behaviour rather than focusing on specific incidents. The judgment is significant because it highlights the policy of trying to avoid litigation, even where there are allegations of domestic abuse. The alternative of mediation, incentivised with public funding, which not available for legal advice and representation in many instances, is strongly promoted. Undoubtedly, this may be because of the flaws of the adversarial approach, one of which may be unfounded allegations of ‘parental alienation’ to counter allegations of domestic abuse. However, mediation is not a panacea and holds its own dangers in domestic abuse cases, and these are not addressed in the judgment. The new pilots of an alternative ‘investigative’ approach to child arrangement cases, perhaps hold greater promise of a breakthrough in an area which continues to present significant problems for the legal system and risk of harm for children and ‘protective’ non-abusive parents.