Law set to change for Domestic Violence
It looks as though things may be set to change in the Family Courts with regards to their approach to domestic violence.
The Court in Children Act proceedings where there has been domestic violence has to consider the welfare of both the person to whom the violence has been inflicted as well as the children.
Mr Justice Cobb, Senior Family Judge has sent a review of this direction to the President of the Family Division and asked the Family Division to be more robust in the way that domestic violence is handled.
The Government is being called upon to review the treatment and experiences of victims of domestic violence in Family Law Courts.
This was as a result of a report made by Women’s Aid and the APPG who raised with the Government the fact that at least 12 children in 7 families of 19 children who were killed had contact arranged through the Family Courts. For 6 families, this contact was arranged by in family Court hearings and for 1 family, contact was decided as part of the arrangements for dealing with the Non-Molestation Order and Occupation Order.
Essentially, the recommendations from Mr Justice Cobb are:-
- The assumption contained in the Children Act 1989 that there must be an assumption of shared parenting in child contact cases, should not be the case where domestic abuse is a feature and that contact should be based upon an informed judgement of what is in the best interests of the child.
- The President of the Family Division must ensure that Family Judges do not allow contact in supported contact centres, where a risk assessment has found that the abusive parent still poses a risk to the child or non-abusive parent.
- The Practice Direction needs to be amended to ensure that there is a requirement for the Court to ensure that the Court process is not being used as a means to continue coercion, control or harassment by an abusive parent. So for example where an abusive parent is uncooperative or obstructive in the hearing and in relation to the Child Arrangements themselves, Family Court Judges need to be alert to that and to deal with them robustly.
- The Courts needs to consider more carefully the waiting arrangements at Court prior to the hearing and arrangements for entering and exiting the building. Women’s Aid reported that a staggering 55% of Respondents to their survey which took place in 2015, who had been to the Family Courts had no access to any special measures. 30% were physically abused by their former partner in the Family Court.
- Protection has to be offered to an alleged victim of abuse from cross examination by the other side.
- Where domestic abuse has been proved, a Court must obtain a safety and risk assessment conducted by a specialist domestic violence abusive practitioner working for an appropriately accredited agency.
- It needs to be made clearer what the test of protection from risk of harm is.
As an experienced family lawyer, I have in recent times become extremely concerned at the way the Family Courts enable alleged victims of domestic abuse to be questioned by the alleged perpetrator. If for example, there are contested proceedings where the victim has applied for a Non-Molestation Order, and the alleged perpetrator is defending those proceedings, both will have to give evidence through the Court. Because of the changes to Legal Aid which took place in 2013, quite often one, or both, are not legally represented and can ask questions of each other.
I have certainly had some experience in the Family Courts and the Judges do vary in their approach to this. I have had Judges who will ask the alleged perpetrator to ask the questions of the Judge and the Judge will then re-frame those questions as necessary. I have had Judges who will allow the alleged perpetrator to ask the questions directly. This can be an extremely distressing experience for victims of domestic abuse.
In criminal cases, provision has been made for the perpetrator to be given some legal representation if they are going to have to cross examine their victim. The recommendation from Mr Justice Cobb is for that to be adopted in the Family Court and I very much welcome those recommendations.
It seems to me that the Court has had, at best, an inconsistent approach to domestic violence at worse, a rather unsympathetic and dismissive view to domestic violence which, in the light of the statistics obtained from Women’s Aid, is staggering.
Let us hope that the President of the Family Division now implements those changes and that action is taken quickly.
If you have suffered from domestic abuse, and need some advice or protection, contact Vicky Medd on 01484 538421. Vicky is an accredited specialist with Resolution in domestic violence.