Against a backdrop of a wider court reform programme, the government has just announced (in June 2020) a radical change to the family justice system following the conclusion of a year-long review by an expert panel commissioned by the Ministry of Justice. A central part of the reforms, encapsulated within the Domestic Abuse Bill, is to introduce special measures to make attending court a safer experience for the victims of domestic abuse and their children in private law children proceedings.
What the panel found
The panel of experts heard evidence from over 1200 respondents, both individuals and organisations, about the difficulties experienced by those trying to navigate the family law system. Much of that evidence focused on the plight of those in former, as well as current, abusive relationships. The report referred to ‘deep-seated and systemic issues’, identifying four main problems in the way in which family courts dealt with cases involving domestic abuse. Some of the evidence heard by the panel makes for uncomfortable reading and exposed:
- the difficulty those experiencing abuse have in making their voices heard;
- the pro-contact culture with the emphasis on children retaining contact with both parents overriding fundamental safety issues;
- the adversarial nature of the justice system giving the abusive party an unfair advantage, particularly where cross-examination is involved;
- a lack of coordination between the various agencies working with affected families; and
- lack of resources affecting all aspects of private law proceedings
Children’s voices go unheard
One surprising aspect highlighted by the report was the extent that abuse within families has been routinely underestimated by those involved in child arrangement cases. Many respondents felt that the courts, when making contact orders, did not differentiate sufficiently between ‘ordinary’ cases and those featuring domestic abuse. The way in which children are dealt with was also covered some detail – the report revealed how little influence children have within the court system to have their views heard as well as lack of coordination with those agencies with a more detailed understanding of the child’s situation. Unsurprisingly, the report also noted the difficulty experienced by those representing themselves in court without recourse to legal advice.
Proposed changes to the family court system
The changes being introduced are designed to tackle the physical and psychological safety of those attending court. Contained within the Domestic Abuse Bill, which has reached the House of Lords, the proposed reforms include:
- the introduction of separate waiting areas and entrances to court, as well as screens in court, to ensure that abuse victims do not have to come into contact with their abusers;
- greater powers for judges to issue barring orders to stop abusers continuing their abuse of ex-partners by repeatedly bringing them back to court;
- the removal of the assumption that a child’s contact with both parents is the preferred position;
- removal of the ability for one parent to cross-examine the other;
- introducing a pilot of ‘Integrated Domestic Abuse Courts’ to ensure a joined-up approach to providing more effective and consistent support for victims. This will include the judge reviewing the evidence rather than the parents presenting their cases; and
- better training for those involved in the family justice system.
The report has shone a light on the extent of the problems faced by domestic abuse victims and their children once they enter the legal arena. There is no doubt that the courts have been under increasing pressure for many years and lack of resources has certainly played a major part in the way such cases have been handled. As family law practitioners we have reported in the past of the negative effects of the adversarial process when trying to reach a resolution between two parties where there is no common ground, particularly where children are involved. Once abuse is factored into the equation, a difficult experience becomes deeply and overwhelmingly traumatic. This Bill will hopefully pave the way for much needed radical change to help those negotiating the family justice system.
