In the 2021 landmark case of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings), the Court of Appeal tackled concerns surrounding how allegations of domestic abuse are handled within private law children proceedings.
In the 2021 landmark case of Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings), the Court of Appeal tackled concerns surrounding how allegations of domestic abuse are handled within private law children proceedings.
By consolidating four separate appeals containing issues of abuse, the court sent a robust message: the family court must take a more sophisticated, trauma-informed approach when dealing with conduct or patterns of abusive behaviour, which may not always be visible.
One of the main critiques in this judgment was of the widespread reliance by the courts on Scott Schedules. These tables set out limited allegations of abuse which tend to lean towards the physical. Following the judgment, courts are now urged to look holistically at the relationship dynamic between the parties, particularly where allegations of domestic violence involve emotional abuse, intimidation, or psychological control. This marked a significant shift in how the legal system historically interpreted abuse, with an emphasis on victims suffering long-term harm without having had any visible bruises.
A shift towards a pattern-based analysis
In one of the four cases reviewed by the Court of Appeal, the father admitted to violent and aggressive behaviour. Even though the lower court ruled that this conduct did not warrant a finding of ongoing risk, having isolated the incidents from the overall relationship pattern—the Court of Appeal disagreed.
It emphasised that such findings should not be viewed in isolation. Where one incident exists, it is likely there will be others; perhaps more importantly, it may be part of a wider course of conduct designed to control or intimidate the victim. The Court of Appeal judgment urged courts to consider these wider behavioural patterns and their impact on both the parent and the child.
The impact of domestic violence on children
One of the most important contributions of this judgment is the strong recognition of the effect of domestic violence on children. Even when children do not directly experience violence, those who live in households where one parent exerts control, manipulation, or violence over the other are still significantly affected.
The court recognised that children are not passive bystanders in abusive households. They absorb the emotional climate, develop coping strategies, and may suffer trauma, behavioural issues, and developmental delays as a result. This shifts the court from viewing abuse as a couple’s issue to recognising its full implications for child welfare.
Coercive control as a legal concept
For years, family case law and practice struggled to effectively incorporate the concept of coercive control. Traditionally, the legal system often prioritised physical evidence and individual acts, but coercive control is far more complex.
The Court of Appeal gave clear directions that coercive and controlling behaviour is a form of domestic violence and it does not have to be accompanied by physical harm to be considered abuse. Behaviour such as monitoring movements, isolating a partner from their family and friends, and controlling finances were all highlighted as significant forms of abuse.
This is important given that previously such conduct was often minimised or overlooked during fact-finding hearings. Victims may struggle to describe the full extent of their experiences, and perpetrators may appear co-operative or plausible in court, masking the abusive dynamic. The court should always take this into consideration.
Call for a cultural shift
The Court of Appeal judgment didn’t just critique the legal system; it also called for a cultural shift. Judges and legal professionals must be trained to recognise the signs of abuse that fall outside the traditional norms. Trauma-informed practice, understanding the psychology of abuse, and considering the long-term effects on both victims and children are now deemed to be central to good legal decision making.
In addition, the judgment recommended that the courts should not automatically direct a fact-finding hearing unless it would help to determine the child’s welfare. The goal should be to avoid re-traumatising victims through unnecessary hearings and to refocus on child safety and wellbeing.
This case sets a powerful precedent in family case law. It reinforces the idea that abuse must be assessed in the full context of a relationship and not just looking at isolated incidents. This approach supports the Domestic Abuse Act 2021, which also defines abuse in broader terms including emotional and economic abuse and controlling behaviour.
Practical takeaways for family lawyers
Although the decision was based on specific appeals, the scope and clarity of the judgment make it a touchstone for how courts and family lawyers should approach allegations in future private law proceedings, in particular:
- Avoid sole reliance on Scott Schedules: Family practitioners should present evidence in a way that tells the story of the relationship, rather than provide the court with a checklist of incidents.
- Frame allegations as patterns: Use language and evidence that reflects sustained behaviour and coercion rather than treating each allegation as an independent isolated incident.
- Highlight the impact on children: Always assess how the alleged abuse environment has affected the child, even where the abuse was not directed towards them.
- Be trauma informed: Recognise that victims may struggle to articulate their experiences or behave in ways that don’t necessarily align with traditional expectations.
Legal guidance arising from this family law judgment suggests that future decisions must:
- Recognise coercive control as a serious form of abuse
- Include psychological and emotional abuse in safeguarding assessments
- Place the child’s experience at the centre of proceedings
- Refrain from ordering contact when a parent poses emotional or psychological risk
The Re H-N and Others case is arguably a watershed moment in family case law. It reframes how we think about domestic violence, offering new ideas and frameworks to ensure that victims are heard and children are protected. This family law judgment reinforces the need for the legal system to move away from outdated models and embrace a more nuanced approach. Ultimately, it asks the courts and lawyers to rethink not just how they assess abuse, but how they prioritise the safety, dignity, and welfare of families affected by it.
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