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The abuse had ended six years earlier, and she had never reported it. Now her former partner had asked the court for alternate overnight weekends and half the holidays. Could historical domestic abuse still count, she asked us, or would his six years of Saturday visits be all the court saw?
Six years on, an application for overnights
They separated when the children, now 10 and 13, were four and seven. Since then he had seen them every other Saturday by agreement, never overnight, and most visits went well.
Over nine years, he read her phone each night, kept her bank card and decided when she could see her sister. On her last night in the house, he smashed the bedroom mirror with his fist while she held their younger child.
She worried that bringing up historic domestic abuse so late would seem a ploy to block the overnights, and with no police report it would be her word against his.
Does historical domestic abuse count under Practice Direction 12J?
It can. Practice Direction 12J takes its meaning of domestic abuse from the Domestic Abuse Act 2021. The two people must be “personally connected”, which includes those who “are, or have been, in an intimate personal relationship with each other”. Under the Act it “does not matter whether the behaviour consists of a single incident or a course of conduct”. The Practice Direction sets no time limit.
The harder question was whether it mattered now. In deciding whether a hearing is needed, paragraph 17 asks whether the allegations, if proved, “would be relevant to the issue before the court”. After any findings, paragraph 37(e) looks at the capacity of the parents “to appreciate the effect of past domestic abuse”.
We advised her to link each incident to the overnights: what the children saw or heard, and how he reacted when crossed.
Nine years of memories, three allegations
We helped her describe the historic domestic abuse on form C1A, which she returned with form C7. At the first hearing, the judge directed that a fact-finding hearing take place before any overnights and asked for a Scott schedule of her allegations.
Her first list ran to two pages. We helped her keep three: the night of the mirror, years of phone checks and the bank card, and the night, years earlier, he shoved her against a radiator. Insults and old arguments came off; they would not change the decision.
Cutting the list upset her, but a long schedule can bury the strongest incident, and each extra allegation is one more thing to prove. The phone checks and bank card went in as one pattern of control.
Evidence of historic domestic abuse, six years later
We helped her find anything made at the time. Her sister still had the text from that night: “He’s smashed the mirror with his fist. The kids are crying. Can we come to you?” A dated photo of the shattered mirror sat in an old cloud backup. Her GP notes from weeks later recorded she had just left a controlling relationship.
Paragraph 19 lets the judge direct documents from third parties such as health services, and statements from others who may give evidence. Her sister’s statement covered the text and the years he controlled their meetings.
She could not say which year the radiator incident happened. We advised her to say so plainly. In historic domestic abuse cases dates get tested, and one that shifts does more harm than an honest gap.
Two findings, and a slower start to overnights
He admitted breaking the mirror but said the children were asleep. Relying on the text sent minutes later, the judge found it proved, with the children present. So was the pattern of phone checks and control of her money, on her sister’s evidence and the GP note. The radiator allegation was not proved: her word against his, with nothing from the time.
In the Cafcass welfare report, he still called the broken mirror a moment of temper the children slept through. With the findings of historical domestic abuse and that answer in front of it, the court ordered overnights in stages: one night every other weekend, rising to two after a review hearing. Holidays waited for that review.
Raising historic domestic abuse: what to do this week
Find the first hearing date in the court papers, and return form C7 with form C1A setting out the harm.
Write down each incident with whatever helps you date it, such as a birthday or house move, and mark what you are unsure of.
Search old phones, emails and cloud backups, and ask anyone you told whether they kept messages. Keep the originals, unedited. Note any GP or support service you saw, and when.
Until you have advice, change nothing with the other parent, and leave the court case out of anything you post. Our guide to attending court with a domestic abuse history covers support on the day.
“Years on, a judge often has two accounts and little from the time, so fairness to the other parent counts. Say what has gone well, such as smooth visits, and briefly why you never reported it: unexplained silence invites the other side to explain it for you. Keep the children out of your preparation; questions about the past can colour their account. The court can ask Cafcass for their views.”
Hannah Overton, Complex Children Specialist & Client Support, Kabir Family Law
Unsure whether the past still matters?
A first talk with our family law specialists is free and confidential. Tell us what happened, and we can help you decide whether to raise historic domestic abuse and what to put first. Read how we write up these accounts.
She was happy for us to tell her story, with details changed. Her result turned on her evidence and predicts nothing about yours.
The legal issue
Six years had passed since she left an abusive relationship, and she had never told the police. Since then the father had seen their two children, now 10 and 13, on alternate Saturdays, by an informal arrangement and only in the daytime. His application asked the court for alternate weekends from Friday to Sunday and half of each school holiday. She did not know whether abuse that old and never reported could still be raised, or whether bringing it up now would seem an attempt to keep the children from him.
The law this rests on
- Practice Direction 12J para 2A: "domestic abuse" has the same meaning as in the Domestic Abuse Act 2021.
- Domestic Abuse Act 2021 s.1(2) and (3): behaviour of one person towards another is domestic abuse if both are aged 16 or over, they are personally connected and the behaviour is abusive; it does not matter whether the behaviour consists of a single incident or a course of conduct.
- Domestic Abuse Act 2021 s.2(1)(e) and (f): two people are personally connected if they are, or have been, in an intimate personal relationship with each other, or each have, or have had, a parental relationship in relation to the same child.
- Practice Direction 12J para 16: the court should determine as soon as possible whether a fact-finding hearing is necessary.
- Practice Direction 12J para 17(g) and (h): the court considers whether the nature and extent of the allegations, if proved, would be relevant to the issue before it, and whether a separate fact-finding hearing would be necessary and proportionate.
- Practice Direction 12J para 19(c), (f) and (g): where a fact-finding hearing is necessary, the court should consider whether the key facts in dispute can be set out in a schedule or table that includes any pattern of coercive and controlling behaviour, so the judge can consider the alleged abuse as a whole, and that focuses on the issues to be tried, whether documents are required from third parties such as health services, and whether oral evidence may be required from third parties, with written statements from them.
- Practice Direction 12J para 29: the court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child's parents and any other relevant person, and must record its findings in writing in a schedule to the order.
- Practice Direction 12J para 36(3): the court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.
- Practice Direction 12J para 37(e): the court considers the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.
- Practice Direction 12J para 38(c) and (d): where domestic abuse has occurred but the court considers direct contact safe and beneficial for the child, it should consider whether contact should be for a specified period and whether it will be necessary, in the child's best interests, to review the operation of the order; if so, it should set a date for the review.
- Children Act 1989 s.7(1): a court considering a question about a child may ask an officer of the Service (Cafcass) to report on matters relating to the child's welfare.
- Children Act 1989 s.8(1): a child arrangements order regulates arrangements about with whom, and when, a child is to live, spend time or otherwise have contact.
- Form C1A (GOV.UK): used when making or responding to allegations of harm and domestic violence, to tell the court about harm that you, a child or children have suffered or are at risk of suffering. Form C7 is the respondent's acknowledgment; the guidance notes in form C1A say that if no C1A came with the application, the respondent completes form C1A to be returned with form C7.
How we approached it
We explained that Practice Direction 12J adopts the Domestic Abuse Act 2021's meaning of domestic abuse, which includes people who have been in an intimate relationship in the past, and that neither sets a time limit. The judge would decide whether findings were needed and whether the allegations, if proved, were relevant to the overnights.
With our help she completed form C1A and sent it to the court alongside her form C7 acknowledgment. We then helped her reduce a two-page list to three allegations for the Scott schedule, with the phone checks and control of her bank card set out as one pattern.
We helped her find records made at the time: her sister's message from the night he smashed the mirror, a dated photo in an old cloud backup and her GP notes. Her sister gave a written statement. Where she could not remember the year of an incident, we advised her to admit the gap rather than guess.
The outcome
Two of the three allegations were found proved: the night he smashed the mirror, with the children present, and the years of checking her phone and holding on to her bank card. The third, an earlier incident with no record from the time, was not proved.
Once Cafcass had reported on the children's welfare, the judge set a stepped plan: a single night on alternate weekends at first, two nights after a review hearing, and holidays only once that review had taken place. That plan fitted the facts proved in this case, and a court hearing different facts could decide differently.
What to take from this
- Abuse that ended years ago can still be raised. Practice Direction 12J borrows its definition from the Domestic Abuse Act 2021, which covers former partners and has no time limit.
- Whether to hold a fact-finding hearing is the judge's call. It turns partly on whether the allegations, if proved, would matter to the decision being made now.
- Put forward the few most serious incidents that bear on the children. Every allegation you add has to be proved, often with little left from the time.
- Look for anything made at the time: messages, dated photos, GP notes and the people you told.
- If you cannot remember a date, say so. Do not guess.
- Use form C1A, returned with form C7, to tell the court about the harm.
Checked and approved for publication by Iblal Iqbal.
Last reviewed .
