Greater Protection for Victims of Domestic Abuse in the Family Court

1st July ‘20

Announcement regarding domestic abuse cases

The Ministry of Justice (MOJ) announced last week that they intend to proceed with a ‘major overhaul’ of family courts following the publication of an expert led review examining the risk of harm to parents and children in private law cases where there is an issue of domestic abuse. The panel of experts included family law professionals, the judiciary and academics who considered the views from over 1,200 organisations.

What are some of the key points raised in the review?

A number of points have been raised and been brought to the attention of the MOJ, with the most significant ones being that:

  • During court proceedings many mothers were worried about being confronted by their abuser at court and, therefore, did not feel safe upon entering/leaving the court building, the waiting area or the court chamber itself.
  • Concerned parents said, the responses of judges and magistrates to their allegations of abuse, and to their distress at court, left them feeling ‘belittled, berated and demeaned.’
  • There were reports of confidential information being disclosed, for example information about sexual assault counselling, which in the criminal setting would be prohibited under rules of evidence.
  • Family law professionals raised concerns that victims of domestic abuse have been made to feel that they are a nuisance when requesting special measures to be put in place for their hearing.
  • Whilst the family court system is set up to provide equality it was said that ‘the reality in private law children proceedings is that many parties are either unequally armed (one party is legally represented and the other is not) or unequally unarmed (both lack legal representation so power, intimidation and control in the relationship is not mitigated).’
  • With it being deemed that there is a culture of ‘pro-contact’ in the family court system this mindset was putting far too many children and protective parents at risk of suffering harm and ‘systemic minimisation of allegations of domestic abuse’.
  • The panel heard evidence about the potential long-term harm caused to children when they continue to spend time with an abusive parent.

What changes will there be consequently?

It does appear the MOJ have taken the review very seriously with the Justice minister, Alex Chalk saying the government are keen to ensure the most vulnerable are protected and not put in danger. Certainly, the review has received positive feedback from some key individuals including the Domestic Abuse Commissioner, Nicole Jacobs, Victims’ Commissioner for England and Wales, Dame Vera Baird QC, and Sir Andrew McFarlane the most senior family law judge in this jurisdiction.

As a result of the review, some of the changes we could see in the family court in the near future could include:

  • Automatic separate entrances/exits, waiting rooms and screens in court for victims of domestic abuse. Some of these arrangements are only available on request at present.
  • A review on the balance of a child having the right to have a relationship with both parents and the risk of harm to children and protected parents.
  • The introduction of a new domestic abuse court where a judge will take the lead by considering the evidence themselves and identify problem solving solutions rather than leaving it to the parents to present their respective case and challenge the other parent’s position.
  • Improved training for professionals in the family justice system on the subject of domestic abuse. This recommendation is not surprising after the controversial judgement of F v H (Fact-finding) (2019) which made its way to the national press after an appeal judge criticised the trial judge for their outdated and incorrect views on rape and consent saying they were ‘unsafe and wrong’.
  • Greater powers for judges to prevent abusers repeatedly dragging ex-partners back to court and re-traumatising victims. It will be interesting to see what greater powers will be available because s.91(14) of the Children Act 1989 is already available to judges, which prevents one party making future applications without the court’s permission.

It remains to be seen what funding will be made available by the MOJ to implement the above proposals and how they will work in practice. With the family justice system already at breaking point, which has since been intensified by the Covid-19 lockdown, only time will tell whether positive change will arise for victims of domestic abuse in the family court.

If you require support or guidance, do not hesitate to contact Naheed Taj. Naheed is the Head of Family at Calibrate Law.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice.

This article was originally writeten by Marc Etherington.

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