There may be allegations of domestic abuse (physical and/or emotional), coercive control, financial control, drug abuse, harassment, fraud, violence or other criminal behaviour.
Allegations of criminal behaviour are serious and can be emotionally and physically exhausting. They can also have a significant impact on family law cases, especially when children are involved.
It may be relevant to who lives in the family home whilst proceedings take place and how arrangements for children are decided not only in the interim, but in the longer term.
Key differences in the criminal court and the family court
The focus within criminal and family proceedings are different. The paramount consideration in the family court is the welfare of the child. The criminal system must include wider public policy and the right to a fair trial as well as welfare issues.
Sadly, both systems do have something in common - they can be very, very, slow.
The standard of proof in family proceedings is different to criminal proceedings; it is the ‘balance of probabilities’ rather than the higher threshold of ‘beyond reasonable doubt’. Within a criminal trial a jury would need to be satisfied ‘beyond reasonable doubt’ that a defendant is guilty of the crime for which they are accused. A judge may say to the jury that they need to be ‘sure’. Within a family court hearing there is no jury and instead the judge will need to be satisfied ‘on the balance of probabilities’ that the respondent is responsible for the injuries/harm alleged – so, ‘that it is ‘more likely than not’.
The family court has a different method to the criminal court of investigating allegations (‘proposed findings’/‘schedule of allegations’) brought by the local authority in relation to how a child may have suffered injury or harm. The criminal investigation or proceedings may run alongside the family proceedings so that the same issue is being looked at by two very different courts, in two very different ways. This can sometimes lead to very different outcomes (or not).
Within care proceedings the local authority has to prove its case. In cases in which is it suspected that an injury to a child is not an accident, the court must be careful not to reverse the burden of proof by requiring the parent to prove that they did not cause the injuries, or to provide an alternative explanation.
In a criminal case the jury will, in most cases, give a verdict as to whether the defendant is guilty or not guilty. If found not guilty the jury has decided that the prosecution has not proved the case beyond reasonable doubt and the accused is free to go. If found guilty the accused is convicted and may be imprisoned. In family proceedings if the judge accepts the local authority’s evidence that a parent or carer has caused harm it will make a ‘finding’. A finding is an allegation which has been found by the judge to be true and is now considered a ‘fact’ and the court will treat them as such when making any future orders. Any allegations that were not found to be true will no longer be referred to in the proceedings.
If you are the victim of criminal behaviour
It is important that you make a report to the police if you believe you have been the victim of a crime. If you are making the allegations, the most important thing is to keep yourself and your children safe. Do not stay in a dangerous situation. You may need to satisfy Social Services and the family court that you are able to prioritise your child’s safety.
You should always call the police if you are in fear for your safety. Depending on the circumstances, it may be possible to obtain a protective order through the family court.
Where to get help
If you need to speak to somebody confidentially about your concerns for yourself or for your loved ones, you can call the Freephone 24-hour Domestic Abuse Helpline run by Refuge on 0808 2000 247.
Men’s Advice Line for male victims and those supporting them—0808 801 0327.
Galop Helpline for members of the LGBTQ+ community—0800 999 5428.
In an emergency call 999.
If you are accused of a crime
If you are going through family proceedings and find yourself accused of a criminal offence (even if it hasn’t yet been reported to the police), it is important to get joined up, strategic advice from both family law and criminal law specialists at an early stage. Allegations may affect both your personal and work life.
Thought needs to be given to the different approaches of both the family and criminal systems and how this can be best managed. A collaborative approach between the criminal and family lawyers will be crucial to minimise the potentially conflicting approaches. An important decision may need to be made at an early stage about which proceedings should take place first and what overall strategy is likely to be the most effective.
It is crucial to get early advice on appropriate gathering of evidence, either of the abuse or to defend the allegations.
We do not have a criminal department but will refer you to a criminal law specialist and liaise with them throughout the case.
Sharing information between the family court and criminal court
Whilst the criminal and family courts have very different methods of dealing with allegations of injury and harm to children, both systems are required to provide information to each other. Often this is seen in the disclosure of police information into family proceedings. Family court hearings in relation to injuries to children are often heard in advance of any criminal prosecutions and the police can apply for disclosure of documents from the family proceedings to inform their investigation.
Judges in family proceedings may (and often do) make an order for disclosure of a judgment from a family hearing to the police. The judge may also order further disclosure to the police of other material it considers relevant to the police investigation, such as medical evidence / expert reports and statements relied upon in the family hearing.
Whilst the statements from the family court proceedings cannot be used as evidence in a criminal trial, the information contained in the statements may be used to inform the police in their criminal investigation and assist them in deciding whether they would wish to re-interview an individual with a view to bringing charges.
Next Steps...
If you need advice on this or any family matter, please contact one of our team on freephone 0800 011 6666 or visit the Family Law section of our website.
