The Gazette recently reported on the case of C, born August 2022 (Children Act 1989) (see tinyurl.com/3xedsxa3). In his judgment, Deputy District Judge (DDJ) Nahal-Macdonald raised the issues caused by the parallel proceedings in the family and criminal courts investigating the same allegations: ‘It is self-evident that the parallel nature of the two processes is rather confusing for parties. Sadly, that is a function of the differences between the family and criminal courts.’
His remarks shone a spotlight on whether we need a more collaborative court system to deal with domestic abuse allegations. This is not the first time our system has faced criticism for treating domestic abuse allegations in silos. Dame Nicole Jacobs, on her appointment as Domestic Abuse Commissioner in 2024, cited research by Professor Marianne Hester on how the different agency approaches to domestic abuse, between the police, public law and the family courts – the ‘three planet model’ – are not necessarily aligned.
In this case, the fact-finding hearing in March was to determine whether the child, ‘C’, could have access to their father. The father had been accused by the mother of domestic abuse and coercive control. He had been charged in January 2025 with two offences of assault occasioning actual bodily harm against the mother in 2024. The father applied for a Child Arrangements Order in February 2025. Despite the magistrates’ court being suitable to hear the case, the father elected to have a Crown court trial, which is listed for October 2026. The judge pointed out that, given the backlog and longer time to resolve cases in the Crown court, if the case had been heard through the magistrates’ court, it likely would have concluded before the fact-finding hearing. However, he also acknowledged the father’s right to choose to be tried by a jury.
In his judgment, DDJ Nahal-Macdonald acknowledged the differing legal approaches at play overseeing the allegations: ‘… of course the family and criminal courts apply different standards of proof… Nothing I decide today has a bearing on that separate right to due process.’
Cafcass had already tried to make a section 7 report (for the court on the issues in dispute, the child’s welfare and their best interests). The judge said this ‘does remind the court that the pending proceedings in the Crown court will need to be resolved before this case can be finalised, but that in C’s interests, it ought to be finalised soon’.
DDJ Nahal-Macdonald found evidence for some of the mother’s allegations of physical abuse, but not coercive control. He determined that an order for direct contact with the father could not be made due to the risk of harm to the mother and child. While the father did not abuse the child, the judge acknowledged ‘that harm by F to M impedes and limits M’s ability to safely parent C, and is vicariously harmful to C’. It was decided that indirect contact through the maternal grandparents would be appropriate, and Cafcass was directed to conduct another section 7 report by 19 October 2026, with the parents to respond in writing by the 30th, with a short dispute resolution appointment to be listed afterwards. The judge did conclude the judgment with the hope that there could be safe contact in future so they could safely co-parent the child.
It is not unusual to have family proceedings running alongside criminal proceedings on the same (or similar) allegations, but it is confusing to parties. For the wider public, it may bring into question whether it is in the best interests of tackling domestic abuse in our society, as well as public understanding, trust and access to justice, to have different legal approaches, with differing burdens of proof, analysing the same allegations.
This differing legal approach is also evident in the financial remedies stage of a divorce case. There has been a reticence until recently to consider how conduct, which could be domestic abuse, should be factored into decisions over splitting the matrimonial pot. Previous case law has dictated that conduct must have that ‘gasp factor’ to be considered, but that is subjective and, as many family lawyers would say, hard to achieve. This can be particularly distressing to a client, who, understandably, will find it confusing why, after such violent and life-threatening behaviour of an ex-spouse, it is not considered automatically. However, the recent decision in LP v MP, where abuse was a factor which was taken into account, was a positive step.
So, what could a more collaborative court system look like? The government’s 2020 Harm Panel Report recommended that national-level mechanisms should be introduced between the family courts, the police and the Crown Prosecution Service (as well as other public services and charities) to enhance communication between them and provide consistent protection to victims between different legal proceedings. Another alternative could be that where there are parallel proceedings, the criminal proceedings are expedited, so the family proceedings always consider how the criminal courts have decided on the case before making a judgment. This would be in the best interests of the child. (Although with current backlogs in the criminal courts showing no sign of easing, this may be difficult to achieve in practice.)
Is it now time for a more radical approach? Joint case management hearings, with family and criminal judges sitting alongside, have been discussed for years but have generally been put in the ‘too difficult’ pile. No doubt they would take time to bed in, but if they worked well, they could help with delay and disclosure issues and, perhaps most importantly, improve understanding across the jurisdictions between judges and practitioners alike.
At the very least, there has to be real improvements in how disclosure is dealt with across jurisdictions. The number of court days lost due to missing evidence is a chronic problem on both sides. The combination of a new president of the Family Division and a new justice secretary may mean that the impetus for reform of these fundamental but often neglected issues returns.
Julian Ribet is founding partner at Ribet Myles Family Law, London
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