A Thanet mother who was one of four at the centre of a landmark hearing concerning domestic abuse cases in the family courts, has won her appeal after the presiding judge at her original case was heavily criticised for his ” wholly inappropriate comments” and attitude.
The young mum’s case centred around her child and a contact agreement with the father which the Royal Court of Appeal accepts she did not make freely.
Her appeal to the Royal Court was against the ruling made by HHJ Richard Scarratt on 5 August 2019 which resulted in a consent order setting out time to be spent between the father and the child.
The mother’s representation said the judge was wrong to make an order by consent when there were unresolved allegations of serious domestic abuse, including rape. The appeal highlighted ‘wholly inappropriate comments’ made by HHJ Scarratt during an earlier hearing in March 2019 where the mother was threatened that: “if this goes on the child will be taken into care and adopted’.
During the appeal court hearing a tape of proceedings was played to judges, President of the Family Division Sir Andrew McFarlane, Lady Justice Eleanor King and Lord Justice Tim Holroyde, where the mum could be heard sobbing following the judge’s comments.
The mum, who cannot be identified for legal reasons, was then pressed over claims she was a drug addict and, despite insisting she had taken drugs on only one occasion and then by coercion by the father, HHJ Scarratt again said he might report the matter to social services.
In the Judgement issued by the Royal Court of Appeal today (March 30) it says: “Counsel for the mother submitted to the judge that the case was not about drugs, but about the allegations made by the mother of abuse, to which the judge responded: ‘Well how’s that going to affect contact’.
“Further attempts by counsel to highlight aspects of the mother’s case were to no avail. The judge said that the parties should ‘sort it out’ and that ‘you should have had the riot act read to you months ago’. The parties were then sent out to see if they could reach an agreement as to contact.”
‘Waste of time’
At the close of that hearing the judge said fact finding hearings – in this case to examine allegations including coercive control, and counter allegations from the father- were often ‘a complete waste of time’ as the father would eventually gain access to the child.
At the hearing five months later, before the same judge, the consent order for contact was made. However HHJ Scarratt said if agreement was not made he would not hear any evidence on allegations of coercive and controlling behaviour.
Argument put forward for the father said the comments made in March would not have impacted on the hearing results five months later.
But the Royal Court of Appeal judges disagreed.
In their judgement they say: “The judge’s unguarded comments, made to the mother, not only to have her child taken from her but to have her adopted and, on two further occasions, to refer the case to social services, have to be regarded as having had long lasting repercussions for her.
“It is clear that the parties were discussing settlement before they came into court in August 2019; that was hardly surprising given the appalling litigation history and the judge’s attitude towards the mother as demonstrated in March. It is hard to see how the mother, faced with the prospect of a hearing in front of the same judge, would have felt herself to have retained any real negotiating boundaries about contact.
“ One can understand that the mother may have felt that she had little option but to settle, particularly given the judge’s opening remarks questioning the point of a fact-finding hearing and his refusal to hear the allegations of controlling and coercive behaviour.
“It is with reluctance that we reach this conclusion. It is well known that judges sitting in the Family Court are, and have been for some considerable time, over-worked. There was good reason for the judge to express frustration that none of the essential case management preparations for the hearing had been undertaken.
“There was however no justification for the judge to say that ‘if this goes on the child will be taken into care and adopted’. Nor was there any justification for the judge twice referring to the possibility of reporting the case to social services.”
Procedural irregularity of such seriousness
The appeal judges ruled that the impact of HHJ Scarratt’s comments “cannot be underestimated.”
In the judgement they add: “It is hard to imagine a more serious and frightening prospect for any mother, let alone a young, single mother, than that of having her child taken off her and placed for adoption.”
In the ruling they say: “We have concluded that the consent order was made in circumstances where there had been procedural irregularity of such seriousness that the appeal must be allowed.”
The case will now go before a different judge who will consider any application for a fact-finding hearing.
The Royal Court of Appeal – the second highest court in operation –held the review in January to consider how the four family court cases, where rape, domestic abuse and/or coercive control allegations were involved, were dealt with.
During the hearing the appeal court was told Judge Scarratt had failed to consider red flags raised in terms of safeguarding which included three separate females making allegations of sexual assault against the child’s father, including one of “ inappropriate sexual relations with a patient – who was 16- at a mental health clinic where the father was working at the time.” He was later dismissed from his role.
Ms Weston said failure to consider the mother’s rape allegations in light of the sexual assault claims was one issue that led to an ‘error in law’ in the order made by Judge Scarratt.
Family courts are bound to consider under Practice Direction 12J whether a child is at risk due to abuse in a relationship and apply this knowledge when making orders for child access.
Three of the cases were upheld for appeal and one case was not determined.
The Court of Appeal has also given guidance that old fashioned views about controlling and coercive behaviour are no longer acceptable in the family court and that judgments that fail expressly to consider the relevance of coercive control may be appealable.
But the Rights of Women organisation says the court failed to use the opportunity to address deeply entrenched pro-contact culture and send a clear message that culture change is necessary to protect women and children from the cycle of abuse that can have life-long and sometimes deadly consequences.
The group says the appeal judges also failed to grapple with the procedural flaws in the way victims of sexual violence are treated in the family court stating this was “beyond the scope of this judgment”.
Katie Russell, national spokesperson for Rape Crisis England & Wales said: “The Court of Appeal’s recognition today that understanding of coercive control and the harms it causes must play more of a role in family courts proceedings is really positive.
“We are nonetheless extremely disappointed that the ruling declined to tackle the significant problems of victim-blaming rape myths, lack of understanding of the law on sexual consent from Family Courts judges, and the overall minimisation and dismissal of sexual violence and abuse in Family Courts.”
Amendments to the Domestic Abuse Bill currently being made in Parliament.
The bill is in the final stages with the next step being Royal Assent.
A number of amendments to the bill include making misogyny a hate crime, which would give tougher sentencing where misogyny is a factor; a “stalkers’ registry” which would require serial domestic abuse and stalking perpetrators to be registered, monitored and supervised; making non-fatal strangulation a specific criminal offence, punishable by up to five years in prison.
Amendments will also include strengthening legislation around controlling or coercive behaviour (CCB) – no longer making it a requirement for abusers and victims to live together – and widening ‘revenge porn’ laws to include threats to disclose intimate images with the intention to cause distress.
Further amendments tabled are to:
provide special measures in civil courts similar to those available in family courts. This could include the use of protective screens in court or the ability to give evidence via video links to support vulnerable courts users.
make it easier for victims who may prefer not to report abuse to avoid being cross-examined in person, by widening the list of evidence to prove abuse has occurred to include things such as a letter from a doctor or an employer.
clarify the use of ‘barring orders’ in the family courts to prevent abusive ex-partners from repeatedly dragging their victims back to court – which can be used as a form of continuing domestic abuse.
require public authorities conducting domestic homicide reviews to send a copy of their completed reports to the Domestic Abuse Commissioner – strengthening the opportunity to learn lessons and prevent future deaths.
Amendment 44 introduces a new clause requiring the Secretary of State, in consultation with training bodies, to publish a strategy for providing specialist training on domestic abuse for Magistrates and Judges hearing cases in family proceedings. This is as a result of the appeal review.