The key points covered in Practice Direction 12J may include:

• Identification of Domestic Abuse: It provides guidance on recognizing the different forms of domestic abuse, which may include physical, sexual, emotional, verbal, financial, psychological abuse and coercive control.

• Assessing the Impact on Children: The practice direction emphasises the need to assess how domestic abuse affects children involved in family court proceedings. It recognises that witnessing domestic abuse can have a profound and lasting impact on children's emotional and psychological well-being.

• Factors to Consider in Child Arrangements: PD12J highlights factors the court should consider when making child arrangements, particularly in cases involving domestic abuse. These considerations aim to prioritise the safety and welfare of the child and any parent or family member who has experienced abuse.

• Relevant Information and Evidence: It addresses the types of evidence and information that the court should consider when assessing domestic abuse allegations, including the credibility and relevance of such evidence.

• Protective Measures: PD12J suggests the use of protective measures, such as non-molestation orders and occupation orders, to safeguard victims of domestic abuse and their children during the court proceedings.

• Child Contact Arrangements: It provides guidance on how the court should approach child contact arrangements when there are allegations or evidence of domestic abuse.

• The burden of proving any fact lies on the party asserting that fact. The standard of proof required is the civil standard of proof, that is that the fact be proved on the balance of probabilities. The analysis is a binary analysis – each allegation is either found to be “proved” or “not proved. Baroness Hale in Re B (Care Proceedings; Standard of Proof) [2008] UKHL 35 / Re B (Minors) [2008] UKHL 35; [2009] 1 AC 11 at [70]

• Neither the seriousness of the allegation, orthe seriousness of the consequences makes a difference to the standard of proof to be applied.

• Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation. Child) (No 2) [2011] EWCA Civ 12; [2011] 1 FLR 1817.

• If a case requires the facts to be proved, the court must decide simply whether or not it happened.

• It is not for a party to disprove the allegations that have been made against them. The burden is rightly on the shoulders of the person making the allegations.

• The Family Court cannot be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.'' - In Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448

• The court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own. The court is not bound by the choice of evidence put forward by the parties, but can decide for itself what evidence it wishes to hear. Re S (A Child) [2015] UKSC 20 at para 20.

• It is an elementary feature of a fair hearing that an adverse finding can only be made where the person in question knows of the allegation and the substance of the supporting evidence and has had a reasonable opportunity to respond.  With effective case-management, the definition of the issues will make clear what findings are being sought and the opportunity to respond will arise in the course of the evidence, both written and oral. B (A Child) [2018] EWCA Civ 2127

• It is not a requirement for the court to determine every single subsidiary factual allegation that may also be raised. The Court only determines individual factual allegations where it is strictly necessary to do so in addition to determining the wider issue of coercive or controlling behaviour when that itself is necessary. K v K 20220EWCA Civ 468 Para 70.

• The Definition of Domestic Abuse is set out in Practice Directions 12J at Paragraphs 2a, 2B and 3

• Coercive behaviour as ’an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim'.

• Controlling behaviour as ‘an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour’.

• Coercion will usually involve a pattern of acts encompassing for example assault, intimidation, humiliation and threats. ‘Controlling behaviour really involves a range of acts designed to render an individual subordinate and to corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a ‘pattern’ or ‘series of acts ‘, the impact of which must be assessed cumulatively and rarely in isolation’ Mr Justice Hayden in the case of F v M 2021 EWFC 4 (para 4)

• Re H-N the court said at para 33

  ''Although the principal focus in this judgment has been on controlling and coercive behaviour, it should be noted that the definition of domestic abuse makes reference to patterns of behaviour not only in respect of domestic abuse refers to a 'pattern of incidents' not only in relation to coercive and/or controlling behaviour but to all forms of abuse including physical and sexual violence."

  At para 32’ that not all directive, assertive, stubborn or selfish behaviour will be abuse …..much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour’.

• Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):

  “Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.”

• The Lucas direction on witness credibility: A witness may lie for many reasons, and they are enumerated in the Lucas direction, such as shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. The fact that a witness may be found to have lied about one matter does not necessarily mean that she or he has lied about everything, witnesses can lie about point A but it does not mean to say they lie about point B. Local Authority v K, D and L [2005] EWHC 144 (Fam).

• The dangers of over reliance on impression in the witness box, the importance of setting out briefly conclusions drawn from lies, and the importance of making a balanced assessment of the evidence of witnesses including the reliance to be placed on contemporaneous documentary evidence as contrasted with witness box oral testimony. Judgement of King LJ Re A (A Child) (Fact Finding) [2020] EWCA 1230

• Case Law re Witness Credibility and Lying within the Family Court

• TJ v RC & Anor [2023] EWFC 189

  This was a fact-finding hearing heard by The Hon. Mrs Justice Judd in proceedings concerning RR, a 6-year-old boy.

• MacFarlane LJ in Re W (A Child) [2016] EWCA Civ 1140 [2017] 1 WLR 2415

  "Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

  • Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence;
  • Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;
  • Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness."

• Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10; [2009] 1 FLR 1145,

  A Judge is not required to 'slavishly adhere' to a schedule of proposed allegations placed before them.

• Hayden J in F v M [2021] EWFC 4: Essential Key Points The Nature of Allegations: Domestic Abuse and Coercive Control

• Re H-N and Others (children) (domestic abuse: finding of fact hearings) Key Points

• No Direct Contact: A and B (No 3)(domestic abuse – no direct contact – s91(14)), Re [2023] EWFC 192

• In Z, Re (Care Proceedings: Reopening of Fact Finding) [2023] EWFC 137, Mrs Justice Knowles concluded that she was “unpersuaded that there are solid grounds for believing that the 2016 findings [made by HHJ Orrell] require revisiting”.

  A Family Court judge has rejected a mother’s “speculative and hopeful” application to reopen findings of fact made in 2016, which found her to be the perpetrator of injuries inflicted on her child when he was a small baby.

• The Definition of Domestic Abuse and Coercive Control
• The Burden of Proof and Evidence
• How the Court Approaches and Consideres Coercive Control
• What is Gaslighting?
• The Impact of Domestic Abuse on Children
• The Case Law National Archive