Many describe domestic abuse as a public health epidemic. According to the Office for National Statistics, two women every week are killed by a current or former partner in England and Wales. This figure is said to have doubled during the lockdown period.
These figures are staggering, and it is clearly important that those working with families in whatever capacity do what they can to end domestic abuse. It is therefore disappointing that many victims have felt let down by the family courts. As a result, an expert panel, made up of judges, researchers and practitioners working in the fields of domestic abuse and family law, was commissioned by the Government to look at protecting survivors of domestic violence in family law proceedings.
Four main obstacles
The report, “Assessing the risk of harm to children and parents in private law children cases” was published on 25 June 2020 and in response to it, the Government also published an implementation plan. The report identifies four main obstacles to effectively tackling domestic violence in the family courts.
The first barrier, which will not be come as a surprise to anyone who practices in family law, is that there are not enough resources available. The courts are currently overstretched and overwhelmed and do not have the time or resources to properly investigate claims of domestic violence, which has led to them being overlooked or minimised.
The second barrier is the pro-contact culture in the family courts, which can lead to the minimisation of abuse. In the family courts, it is believed that it is in the child’s best interest to spend time with both parents even when domestic violence allegations have been made. There is guidance for practitioners and judges to try to protect victims when allegations of domestic abuse have been made. However, ultimately, the court is focused on contact being the outcome of a case. As such, allegations of abuse get minimised or missed entirely.
The third barrier identified by the report is the courts’ failure to co-ordinate. For example, the contradictory ways domestic abuse victims are treated in criminal and in care proceedings compared to in proceedings that are between two parents, which are called private law proceedings. The panel went so far as to say that the lack of information sharing can be “life threatening” and “available evidence of domestic abuse and its impact on children is ignored by family courts”.
The last barrier identified by the panel to protecting victims of domestic violence is the adversarial approach in the family court. It is often the case in Children Act proceedings that it is one parent “versus” the other and the focus can become one party winning rather than solving the issues that have led the parties to court. The child is rarely given a voice in these types of proceedings. The Children and Family Court Advisory and Support Service (‘CAFCASS’), are independent social workers who advise the courts on issues regarding children law matters and their role is to look after the interest of the children involved in family proceedings. CAFCASS can set out a child’s wishes and feelings in a report if that child is considered mature enough to have these heard. However, the wishes and feelings are often gleaned from a single meeting with that child and are often minimally set out.
The implementation plan in response to the panel’s findings seems very positive and includes fundamental reform of how the courts hear cases. The plan proposes that courts use an investigative approach to try to move away from the adversarial system. The courts will have a more problem- solving approach where it will try to get to the root of a problem. There will be more emphasis placed on providing and sign posting to support.
Ministers are also to launch a review into the presumption of parental involvement in a child’s life in cases where there has been domestic abuse. The review will look at how to strike the right balance between the risk of harm to a child and victims and the right of the child to have a relationship with both parents.
Other helpful proposed changes include more powers to judges so they can bar an abusive ex-partner from repeatedly issuing court proceedings and continuing to abuse victims by dragging them back to court over, and over again.
More training for judges and court staff is also in the implementation plan. The panel raised concerns about some judges not fully understanding the effects of trauma on victims. As a result, the court has decided that a victim is not credible because they were over or under “emotional”. Also sighted in the review was the lack of understanding by the court of non-physical abuse, particularly coercive control.
The implementation plan does seem very positive and those practicing in family law are hopeful that it may bring about real change. Ultimately, like all publicly funded services, there is a fear that funding may be a barrier to bringing these changes into full fruition.
To discuss this, or any family law matter, in more detail, please contact the Family Team at Pinney Talfourd. We offer a free 30 minute consultation which can be booked using the contact form on the website or by calling one of our offices.
This article was written by Yanoulla Kakoulli, Associate in the Family Law team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2020.