Domestic Abuse: Patterns of behaviour, rape and a reminder of PD12J  

Domestic Abuse

The subject of patterns of behaviour in Domestic Abuse has been raised recently in the High Court. In this short article I shall explore this topic and if you are dealing with a Domestic Abuse matter, then please read this to help you understand some of the terminology and procedural aspects.  

Domestic Abuse is defined by the UK government as being “any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence, or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. 

Please see my article which deals with the procedural aspects involving applications of Domestic Abuse. In this article I shall focus on the concept of patterns of behaviour and how Practice Direction 12J is being interpreted by the Courts in such matters.  

What is Practice Direction 12J 

Practice Direction 12J (PD12J) provides guidance on child arrangement and contact orders in the context of domestic abuse and harm to children. Section 2A(1) of PD12J provides definition of domestic abuse which includes a range of categories of forms of abuse and sets out that such behaviour can be a single incident or a course of conduct. It relates directly to the Domestic Abuse Act 2021.  

The Court in this case heard two appeals which involved the allegation of domestic abuse, sexual assault, and rape. The Court in such matters is tasked with assessing risk and harm for the children which are the subject of the proceedings, and not the criminal liability against one or more defendants. It was argued in this case that PD12J provide a framework for determining allegations of sexual abuse. However, the presiding Judge, Mrs Justice Knowles, stated that “PD12J to have one “…would inappropriately narrow the court’s focus…” and lead to box ticking rather than evaluating the evidence holistically. Rather, the framework has been established in case law in R V Lucas and Re H-N and provides the Court with ample guidance to determine such allegations.   

Sexual history and behaviour to determine allegations  

It is long established that previous sexual history with other people not involved in the proceedings is rarely relevant to determine an allegation of rape or sexual assault. However, Mrs Justice Knowles provided some guidance on admissibility of such evidence in the Family Court, namely that a written application should be made and that it is for the applicant to persuade the Court of the relevance and necessity of the evidence to the facts of the case. Whereas sexual history between partners is ordinarily admissible without the need for a separate application, further enforcing the principle that such behaviour can be reviewed in the round by the Court when determining allegations of domestic abuse.  

What does this mean for the way allegations of domestic abuse are handled in light of PD12J? 

PD12J falls short of providing substantive guidance on the impact of patterns of behaviour and allegations of rape, sexual assault, or domestic abuse, generally. The Court will review evidence of past sexual behaviour between partners, but by exception and under application, may review evidence of behaviour between other persons who are not party to the proceedings.  

The aim for the Court is to determine the extent of harm to the children of the parties and not to establish liability under criminal law. Courts will refer to key guidance about patterns of coercive behaviour which has been established in R V Lucas and Re H-N. Where there has been an allegation of coercive and controlling behaviour, this should be core focus for the Court to deal with as part of its Fact-Finding Hearings and case management. Additionally, the Court will review relevant behaviour in the context of sexually abusive, and coercive and controlling behaviour in respect of determining the welfare of the children who are the subject of the proceedings.  

PD12J, therefore, serves as a reminder to Courts to deal with Child Arrangements Orders where domestic abuse allegations have been established. Furthermore, the Court should make fundings of fact as to the nature and degree of domestic abuse and its effect in the child, parents and other relevant persons. To achieve this, it should consider, amongst other elements, “…what evidence is needed to establish the existence of coercive, controlling or threatening behaviour or other domestic abuse.”  

If you need assistance with any of the above issues or require support with your application, please contact Sima directly by calling 02073531746 or via email: