Reform is needed to protect victims of domestic abuse in the family courts

There have been great strides in the understanding of domestic abuse in recent years, and in the way that this is dealt with by professionals and the justice system. This has been a gradual process, including the introduction of Practice Direction 12J (originally in 2008, but updated in 2014 and 2017), the implementation of the ‘Clare’s Law’ Domestic Violence Disclosure Scheme in 2014 and the enactment of the Domestic Abuse Act 2021.

This act brought in new measures aimed at protecting survivors, including creating new protective orders, preventing perpetrators from cross-examining their victims in court, providing a statutory basis for the Clare’s Law scheme and creating a statutory presumption of eligibility for special measures for survivors of domestic abuse.

The act also reflects the development in wider understanding of the different types of domestic abuse, creating a new statutory definition of domestic abuse which recognises the many different forms that this can take, including:

• physical, sexual, emotional or psychological abuse.
• violence and threatening behaviour.
• controlling and coercive behaviour.
• financial abuse.

Case law has also continued to develop as understanding in this area has grown, with notable cases such as F v M and Re H-N and Others providing guidance on the definition of controlling and coercive behaviour and when Fact-Finding Hearings are appropriate, as well as addressing the limitations of Scott Schedules and the implementation of PD12J (albeit that the case law has also arisen from the need to address issues regarding how domestic abuse has been dealt with in the family justice system).  As part of the measures introduced by the Domestic Abuse Act, the role of the Domestic Abuse Commissioner was created.

The July 2023 report by the Ministry of Justice, titled "The Family Court and domestic abuse: achieving cultural change," addresses issues from the June 2020 Harm Panel report and highlights advancements in family court procedures for domestic abuse cases. Subsequent developments include new Court of Appeal guidance, the creation of Cafcass boards and training plans, the trial of Pathfinder Courts, and protective measures from the Domestic Abuse Act. Additionally, there is a push for increased data transparency and mandatory domestic abuse training for judges. The report also notes improvements in managing intimate image cases, the allowance of IDVAs and ISVAs in family courts as of April 2023, and the implementation of the Qualified Legal Representative (QLR) scheme.

However, it is clear from the July 2023 report that there is still a long way to go in respect of the treatment of allegations of domestic abuse within proceedings in the family court. Indeed, the Commissioner raised concerns about the “re-traumatising” nature of proceedings for survivors. She sets out in great detail the concerns raised with her by both survivors and legal professionals, under overarching themes of “a lack of understanding, a practice of minimising, and an experience which is re-traumatising within the family court” and “a lack of consideration of the risk and harm to the child from the presence of domestic abuse”.

She cites a lack of transparency, lack of understanding of domestic abuse and the ‘voice of the child’ being ignored as major issues to be addressed, among others. She notes reports of issues around stereotyping, interpreting issues and a lack of cultural understanding.

She further raises concerns about a ‘culture of disbelief’ and the presumption in favour of contact, which does not adequately consider the traumatic nature of the abuse suffered by both children and survivors. This also includes the issue of survivors being fearful of raising allegations of domestic abuse due to the likelihood that they will then face counter-allegations of alienation, as well as the arising difficulties concerning the use of experts in cases where alienation is alleged.

The Commissioner makes a number of recommendations in her report which would certainly greatly assist in dealing with the wider gaps and issues in the law that enable perpetrators of domestic abuse to prevail. However, there are some concerns that the recommendations do not address.

One such consideration follows on from the recommendation that all of those who allege domestic violence should be provided with an IDVA. While IDVAs provide invaluable support for survivors, there is often a gap between the approach taken to a case by IDVAs and that taken by the family justice system, which needs to critically weigh allegations and may not consider all allegations to be made out.

One would hope that this gap could be closed by the commissioner’s recommendations in relation to system-wide training and a change of culture, but there will inevitably remain cases where the family court will not consider there to be sufficient evidence that certain allegations are made out, and survivors do not have realistic expectations of how their allegations will be evaluated. Care needs to be taken and IDVAs need to work in conjunction with legal practitioners to ensure that survivors continue to feel supported while also being fully prepared for the court process.

Another relates to the recommendations regarding the QLR Scheme and Legal Aid which, while certainly helpful, may not go far enough. Instead, a strong case could be made for the reintroduction of full Legal Aid for alleged perpetrators as well as their victims. While not an attractive policy at first glance, this would in fact greatly contribute to making the process considerably less traumatising for survivors.

Alleged perpetrators who are not represented can often use the court process to try to continue to perpetrate abuse against their victims, with the Commissioner’s report noting at p63 that “When asked about behaviour of litigants in person more generally, three quarters of legal practitioners confirmed that litigants in person use excessive communication in family court proceedings.

Just over half of participants who answered the question around communication style felt that the communication style of litigants in person ‘sometimes’ was used to intentionally cause stress to the other parent.” If both sides are represented and given proper legal advice, this greatly reduces the volume and temperature of communications, and would further prevent the making of spurious applications in an attempt to continue to perpetrate abuse due to practitioners’ duties to the Legal Aid Agency.

Compliance with court directions would likely increase, reducing the need for judicial case management and additional hearings. And, consequently, less delay – something even more vital as ongoing court backlogs mean cases are often waiting months to be heard,

Finally, while the recommendations regarding training across the family justice system are welcome, the use of magistrates for cases involving domestic violence should perhaps be reconsidered.

Domestic abuse cases often involve complex issues, including the nature, extent, or scope of the allegations, as well as the potential for counter-allegations such as alienation. While magistrates make a valuable contribution to the justice system, they are not equipped in the same way as judges to deal with cases of complexity, which can lead to further delays or ongoing issues when these cases are contested, as they so often are. I would suggest that all such cases should be allocated to the judiciary at first instance, with simpler cases to then be allocated down if this is considered feasible.

Charlotte Image-Flower is a senior associate at Dawson Cornwell