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Serious allegations of domestic abuse

A recent private law appeal dealt with issues relevant to all Children Act cases where domestic abuse may be involved, writes Anne Chavasse.

In JH v MF [2020] EWHC 86 Fam the court was concerned with C a child who had been born in January 2015. Prior to his/her birth F, who was 6 years older than M, had a significant history of violent behaviour and familial abuse.

During 2015 and 2016 there were several occasions when M contacted the police complaining of his domestic abuse. The records of these complaints were before HHJ Tolson QC.

In late 2016, M left F taking C with her to a refuge, after a violent incident of sexual assault by penetration. Her ABE inter-view was available to Judge Tolson. There was also evidence from neighbours who had reported to the police, threats and harassment by F.

F reported to the LA that M was unable to care for C. The matter was investigated and no concerns in M’s care of C were found.

Two years went by and then F applied for a CAO, seeking contact. He was acting in person.

M’s case was that F was aggressive, intimidating, controlling and emotionally abusive during the relationship and that she was subjected to domestic abuse including verbal abuse, physical and sexual assaults, at times when C was present in the house.

Accordingly a fact-finding hearing was ordered.

Ms Justice Russell found the following problems with Judge Tolson’s decision:

  1. There was significant evidence before Judge Tolson that M was a vulnerable witness as a result of her experiences. However he refused M’s application for screens and ordered that she give her evidence from Counsel’s bench, which meant that she was proximate to where F was sitting in court, contrary to Part 3A of FPR 2010
  2. Judge Tolson permitted F to give evidence from the same location, and did not prevent F receiving assistance from his McKenzie friend during evidence. M’s Counsel’s concerns about this arrangement were dismissed without reasons.
  3. The Judge failed to apply the relevant definitions in FPR 2010 PD 12 J of DA including, coercive and controlling behaviour; eg dismissing the throwing of objects as characteristic of controlling and coercive behaviour.
  4. The Judge dismissed or ignored the police evidence concerning the F’s previous violence and the complaints of the neighbours and others and concentrated only on the oral evidence that he had heard.
  5. Counsel for M was restricted by the Judge in making her final oral submissions.
  6. The Judge made findings about M’s psychological state of mind without any forensic expert evidence.
  7. The Judge attributed M’s anxious demeanour in court to her being neurotic, and failed to consider the impact of the F’s proximity in court and his previous abuse of her.
  8. The Judge’s attitude to M’s sexual assault allegations and the issues of consent were completely at odds with current jurisprudence and what is currently acceptable socio-sexual conduct. The logical conclusion of the Judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of her enjoyment or willingness to participate.
  9. The Judge’s finding that C had not been harmed by F was unsafe when he also found that F had used “more force than normal” when changing C’s nappy.
  10. The Judge found that M had been guilty of aggressive behaviour herself, when this was never put to M in cross-examination and did not appear to be part of F’s case.
  11. The Judge ignored threatening text messages from F to M, which occurred during the hearing, dismissing them as “sexting”.
  12. During his judgment, the Judge ordered a section 7 report and invited the CAFCASS officer to consider a CAFCASS managed contact intervention, when this issue had not been addressed at all during the fact-finding hearing and M’s Counsel had not been given an opportunity to address the court on the issue.
  13. At a later hearing the Judge directed CAFCASS to investigate child protection issues in M’s care of C. Again this was never raised as an issue during the FF hearing. The evidence in the safeguarding letter stated that there were no welfare concerns about M’s care of C.

It is clear from the above that this mother was badly let down by the way in which the judge conducted the hearing. As a result Russell J ordered a re-hearing.

Ann Chavasse is a barrister at St Ives Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..