By Emma Fielding
Emma Fielding is a criminal barrister who practices at the 36 Group. She was called to the bar in 2021 and prosecutes and defends across a broad range of criminal offences, with a particular focus on RASSO work and organised crime. She is a grade 3 prosecutor on the RASSO and regulatory panel. She is also Chair of the Young Criminal Bar Association and Secretary of the Kalisher Trust which supports underrepresented groups at the criminal bar.
Where criminal trials and family court proceedings collide
As a criminal practitioner who prosecutes and defends cases involving violence against women and girls, it is frequently the case that family court proceedings precede or run alongside the criminal proceedings. Allegations of domestic violence or rape can be dealt with by the family court in the form of a fact-finding hearing, so sometimes there can already be a family court decision before the criminal trial even begins. This is particularly true in the current climate where it can take years for the criminal case to come to trial and where matters involving the children need to be decided without delay.
In rare cases, the family court might stay the proceedings whilst awaiting the outcome of the criminal case, but the delays in seeing a criminal case to its conclusion can leave the parties in a state of limbo. In the meantime, important decisions are being made about child custody arrangements.
In the family courts, judges will often order fact-finding hearings to determine the truth of allegations of domestic abuse. Magistrates or judges make findings on the balance of probabilities, meaning 51% more likely than not. In criminal cases, juries decide whether the defendant is guilty or not guilty on a much higher standard of proof – beyond reasonable doubt.
As a prosecutor, I represented the Crown Prosecution Service in a case where a victim had alleged domestic abuse perpetrated by her ex-partner. The family court had made findings that the abuse had not taken place on the balance of probabilities. Amongst other things, the judge did not find the complainant credible, that she had exaggerated, and relied on victims stereotypes about how a genuine victim would behave. The defence expected the Crown Prosecution Service to drop the charges against the defendant. The Crown Prosecution Service did not drop the charges simply because there was a negative family court judgment. We assessed the complainant as credible and believed on the evidence there was a realistic prospect of conviction. The evidence relied upon in the criminal trial and in the family court fact-finding hearing were largely the same – it was a he said she said case. We secured a conviction on one of the assaults. That allegation was identical to the one heard in the family court proceedings which was roundly rejected by the family court judge. It is quite extraordinary that the family court failed to make findings on the lower standard of proof, yet in the criminal court, a jury found him guilty. It raises numerous questions about the family court’s poor approach to domestic abuse.
Now that the defendant has been convicted of an offence in a criminal court, there are grounds to reopen the family court decision. A criminal conviction is considered as persuasive evidence of wrongdoing in the family courts because it is to that higher standard. The case I dealt with is undoubtedly not the only one which has exposed perverse family court decisions. There will be cases which are not reaching the point of charge due to an unfavourable decision in the family courts, which may have resulted in a conviction in the criminal courts, had they been pursued.
To highlight the dilemma of parallel proceedings, I will outline a scenario. The mother makes allegations of rape against the father in the family courts and to the police. The Crown Prosecution Service charges the father with rape including rape resulting in the conception of the child. The family court proceeded to a fact-finding hearing in the interim and concluded that the rape allegations were not proven. The father spends time with the child. The question is, will the Crown Prosecution Service now proceed with the trial knowing full well the father was found not to have raped her on a lower standard of proof? If the father is convicted of rape resulting in the conception of the child, a criminal judge could, in the future, restrict his parental responsibility upon sentencing him. This follows a recent announcement by the government that they intend to strengthen the law to prevent rapists from exercising ‘parental rights’ over children conceived through rape via the Victims and Courts Bill, which is currently making it’s way through parliament. If this were to happen, it will mean that the family court placed a child with a father who raped their mother resulting in the conception of the child. The consequences therefore when the family court is in misstep with a jury decision can put victims at serious risk of harm.
This article will consider the interaction between the family court and the criminal courts and the impact that one set of proceedings may have on the other.
Disclosure
The first question is, how do the parties in one set of proceedings know about the existence of the other?
In criminal trials, this is usually uncovered through the disclosure regime. There is a duty on the prosecution to obtain all material which may be relevant and admissible for the criminal trial and ensure that the trial is fair, provided that it is proportionate. At the investigation stage it is incumbent on investigators to obtain this third-party material.
It may also be requested as disclosure by the defence teams. It is common in criminal trials for the family court proceedings to feature in the evidence: a defendant will often say that the complainant is motivated by a desire to gain an upper hand in the family court proceedings, or a complainant might raise divorce proceedings as a factor in the offending behaviour.
You can see more in the CPS guidance ‘Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol’.
Impact of a family law judgment in a charging decision
As discussed above there is a duty on investigators to obtain the documentation from the family law proceedings, if relevant. Once obtained it will be factored into the two-stage charging decision test:
- is there a reasonable prospect of conviction; and
- is it in the public interest to prosecute.
There are two main ways in which a family court judgment might be decisive in a charging decision (usually made by the Crown Prosecution Service in serious cases). The first is an adverse decision, e.g. one of identical or similar allegations being found as unproven in the family courts. A prosecutor should consider the reasons underpinning the decision as this could foreshadow the likelihood of a criminal conviction and therefore have a bearing on the reasonable prospect of conviction test. For example if there was some undermining evidence or if they found that the complainant was an unreliable witness.
Secondly they will consider any inconsistencies between the evidence in the family court and allegations made in the criminal case. In some cases they might also take into account whether the complainant pursued certain allegations in the criminal courts that they did not include or detail in the family courts.
There are pitfalls however in this review process. Criminal specialist prosecutors may not be well versed with the ins and outs of family court proceedings and the challenges that complainants often face, for example a lack of special measures or poor representation. Family Court judges do not always make the correct decisions. The Ministry of Justice’s Harm Report (June 2020), the Domestic Abuse Commissioner’s recent family court report (October 2025) and the Ministry of Justice’s Presumption Report (October 2025), all conclude that parent and child victims of domestic abuse are suffering harm because of family court failure to recognise and address the gravity of abuse. They outline that domestic abuse allegations are minimised and victims can be disbelieved and suffer further trauma during the process.
The question of consistency is also problematic. Prosecutors may not be fully considering the impact of trauma on domestic violence victims and how that might lead to inconsistencies. It is imperative that professionals are trauma-informed where possible. It is understandable that a complainant may not want to have a rape allegation litigated in the family court (where victims might fear the outcome in the family justice system which is described as systemically failing victims), but they might disclose rape allegations to the police. These decisions are nuanced, and case specific. The concern is that a knee jerk decision may be made by prosecutors to drop a case which might result in conviction.
How can disclosure from the family courts be deployed in criminal trials
Outside of the impact on a decision to charge, once that decision has been made and a case has come to trial, any disclosed family court documents can only be used in a limited way. Hearsay evidence is strictly controlled within criminal trials and can only be admitted in specific circumstances. It would not be admissible for the defence to put to the jury that there was a decision made against the complainant in the family court. The jury can only consider evidence that they have seen and heard during the course of the trial – as they did not sit through the evidence in the family court proceedings, that would be inadmissible hearsay. If the jury heard during the course of a trial that a family judge had decided that the same allegations were unproven, that family judge would then be assuming the role of the jury in deciding guilt – and that decision is for them alone. Similarly, they will be directed that the trial judge’s opinion on the evidence is irrelevant, it is their view of the evidence which counts.
The witness statements or matters said in evidence in family court proceedings may however be admissible in a criminal trial, if it amounts to an inconsistent statement, as a hearsay exception. For example, if the account made by a complainant in a domestic violence trial was inconsistent with an account they made on oath or in a signed statement in the family court proceedings, a defence barrister would be entitled to cross examine that witness on the basis of those inconsistencies. The jury could infer that the witness is being untruthful (either previously, or now) and that could therefore have an impact on their credibility. In a criminal trial that lives or dies by the complainant’s credibility, any inconsistency could be fatal to the Crown’s case and result in an acquittal.
Conclusion
Prosecutors should consider all relevant evidence when deciding to charge and defendants should have disclosed to them any evidence which meets the test – supporting the defence case or undermining the prosecution case. This must continue to ensure a fair trial.
However, miscarriages of justice may occur when adverse family court judgments are taken at face value by prosecutors, when the true picture may be more complex. There runs the risk of a victim being treated unfairly: initially by the family court resulting in a judgment against them and then that unfairness being compounded by a decision by the Crown Prosecution Service not to charge due to that family court judgment.
How can prosecutors ensure they are not falling into this trap? It seems to me that expertise from family court practitioners, sharing best practice and experiences, would assist and could feed into charging decisions where a family court judgment is in play. Some guidance would also be welcome in how to deal with cases where there are parallel proceedings and potentially an adverse decision in family court proceedings – this should not mean a criminal trial must fail.
Posted on 11th November 2025