Hannah Gomersall, barrister, and Srishti Suresh, pupil barrister, both of Coram Chambers, review the government’s proposed changes to the family courts in response to the experiences of domestic abuse victims.
On Thursday, 25 June 2020, the government published the much anticipated panel report Assessing risk of harm to children and parents in private law children cases. It is a lengthy document, running to some 216 pages and was accompanied by the government’s short “implementation plan“, setting out responses to the recommendations made. The panel’s undertaking was the result of overwhelming concerns from MPs, women’s groups and domestic abuse charities.
Over 1,000 consultation responses were considered by the panel. The vast majority (nearly 70 per cent) came from mothers, many of whom considered they and their children had been failed by the family court. Some aspects of the report will make for uncomfortable reading by all who practise in this area (indeed Cafcass has pointedly noted that they “do not agree that the criticisms in the report reflect [their] current practice”). However, even if practitioners are not able to recognise every failing identified, we must surely concede that faith in the family justice system, particularly in how it handles issues of domestic abuse, is worryingly low.
The four obstacles
The report identifies four main obstacles to effectively tackling domestic abuse in the family courts. First, there are constraints on resources in the family justice system (including Cafcass), which has become over-burdened with the increasing numbers of public law cases. The report cites the striking observations of one judge: “the system’s just crumbling now, we just can’t cope with it”. It was noted that if they are to be undertaken with the required care, domestic abuse cases (including fact finding hearings) require judicial time and adequate court facilities: resources which are all too scarce. Post-LASPO, the steep rise in the number of litigants in person has also placed further demands on the judiciary.
The first obstacle identified by the panel – resource constraints – is likely to be immediately recognised by all practising in the family court. The frustration of private law cases being vacated the day before the hearing; magistrates, legal advisers and Cafcass Officers working their way through lists of seven or eight FHDRAs in a day, each listed for a wholly unrealistic time slot of 30 minutes; skeleton safeguarding letters by Cafcass attempting to make recommendations on the basis of a 20-minute telephone call with each parent; and lengthy waits for fact-finding hearings to determine allegations of domestic abuse (a 12-month wait in one of the writer’s recent cases), will be common occurrences for family practitioners. It is within this “crumbling” system that a careful and thorough risk-analysis of domestic abuse issues is required, nuanced power-dynamics must be addressed, participation directions actively raised, and distressed litigants in person assisted to put their case. Many might see it as disappointing, therefore, that this question of resources (for the family court, Cafcass, therapeutic provision, perpetrator programmes and supervised contact centres) is somewhat brushed over in the government’s implementation plan in response to the panel concerns.
The second barrier is labelled by the panel as a “pro-contact culture and minimisation of abuse” in the family courts. Recent Court of Appeal authorities were cited to assert the presumption of parental involvement in a child’s life, as well as the 2014 amendment to the Children Act 1989. It was noted that the Association of Lawyers for Children and the Transparency Project both considered there was an appropriate balancing of the desirability of contact against management of risk by the family courts. However, many victims and domestic abuse specialists perceived that establishing contact was the dominant consideration, rather than other welfare considerations, and this had led to a pattern of minimisation and disbelief of allegations of domestic abuse and child sexual abuse.
In response to this concern, the implementation plan commits the government, under the leadership of the Family Justice Board, to review the ‘presumption of parental involvement’. This will include investigating further how the balance is being met between the welfare of children and parent victims, and the rights of children and parents to a family life. It remains to be seen how any ‘rebalancing’ in this area would impact in practice on the court’s evaluation of a child’s welfare, and on issues such as interim contact in cases where there are allegations made of domestic abuse or coercive control.
The third obstacle considered by the panel is ‘silo working’: that the system fails to co-ordinate and at times works in contradictory ways. One example is the significant disparity in attitudes towards domestic abuse victims in criminal law, public children law and private children law. The panel considered that MARAC risk assessments were often ignored by the family court, and the protection afforded by a non-molestation order would be at odds with an order around contact arrangements. The lack of information sharing could be “life-threatening” and the panel went so far as to express a concern that “available evidence of domestic abuse and its impacts on children is ignored by family courts”.
Fourth, and finally, the panel identified the adversarial process as a barrier to tackling domestic abuse. The panel expressed the concern that the small number of children directly represented in private family proceedings meant children had little involvement in the process. As such, the process centred around “each trying to win the case”. Further, the panel considered that the family courts appeared to struggle to understand and address power dynamics between the perpetrator and victim, and how this might affect the fairness of the process.
The implementation proposals, in response to the report’s concern about these final two barriers, include piloting an “integrated domestic abuse court” with two strands: first, a ‘one family one judge’ approach where family and criminal proceedings involving domestic abuse are heard concurrently by the same judge. Second, an ‘investigative approach to the family courts’, moving away from the current ‘adversarial’ system, will be explored. This “problem-solving approach” would have judicial continuity as a key feature, and be comprised of three phases: initial investigation and information exchange, an adjudication phase, a follow-up phase.
Further details are awaited as to how this investigative approach pilot would be practically different from the present progression of a private law case. The return to follow-up hearings may remind practitioners of the family court’s previous practice of listing ‘review’ hearings in private children cases, a habit that was strongly discouraged on resources grounds, upon the advent of the CAP programme and its tripartite hearing structure. Many practitioners might be particularly sceptical about the court’s ability to ensure judicial continuity beyond any small pilot scheme in light of the President’s June 2019 “The Road Ahead” guidance which identifies the current “high volume of cases with radically reduced resources in sub-optimal court settings”. Beyond funding the integrated domestic abuse court pilot scheme, no further resources are proposed by the government to assist the family justice system in providing this more considered approach and judicial continuity.
The panel also notes a number of structural disadvantages within the family court process, which impact on victims of domestic abuse. The lack of access to legal representation (economic disadvantage) is a key issue, with most private law children cases now involving at least one litigant in person. Access to legal aid in rural areas was marked as a particular problem. These are also areas where other interventions and support are in short supply. Women with uncertain immigration status were under particular pressure to reconcile or agree contact, and some participants felt ‘othered’ and belittled by the court and identified their experience as racism.
The panel raised concerns about some attitudes within the magistracy and judiciary, identifying a particular lack of understanding of the effects of trauma on victims and how they might impact on assessments of credibility (judgments of alleged victims appearing ‘over’ or ‘under’ emotional when giving evidence), as well as a lack of understanding around coercive control. The implementation plan makes some reference to further training and notes that new materials for family judges are being piloted by the judicial college. There is also a commitment to trial improved guidance and training on beliefs and cultural issues.
The panel also noted that where a party was not legally aided, the costs of obtaining police disclosure could be prohibitive, risking important evidence not being before the court. In response, the government has stated that it will review guidance for police forces on fees for disclosure of evidence in cases involving domestic abuse, alongside the National Police Chiefs Council.
The voice of the child
The report expresses the view that children’s voices are not given due weight within private children proceedings. This conclusion is drawn through the lens of the four barriers outlined above: depleting resources leads to insufficient representation and support of children in private law children’s proceedings; the ‘pro contact culture’ may leave children feeling unable to refuse contact with an abusive parent; children’s needs, wishes, and safety are lost in the adversarial process where there is ‘excessive’ focus on adult allegations, the burden of proof, procedure, and suspicions of parental self-interest. Finally, the report suggests ‘silo working’ results in important evidence about what is happening to the child being overlooked. The child’s recovery from trauma, and supportive mechanisms therein, may be withheld or undermined.
Practitioners are well aware of the balancing exercise between giving due credence to the voice of children in proceedings, and having contextual regard to the preservation of their best interests without further drawing them into familial conflict. This, too, is the dichotomy drawn out by the report; working groups largely formed of mothers and social workers have suggested the views of children are side-lined in proceedings. Contrastingly, working groups centred on the rights of fathers and therapists indicate that children risk being overburdened when asked with whom they would like to live. The report cites the Children Act 1989 and Article 12 of the UNCRC – persuasive, but not binding – to remind of the need to accommodate children’s voices in the litigation process.
To this end, the report suggests reforms such as Cafcass being given more time to build relationships with children, greater separate representation of children, more independent therapeutic support, and greater cooperation with services supporting children outside court. It is notable, however, that these propositions are resource led, a trend that the report itself identifies.
What is unclear, then, is to what extent these changes are in the remit of the family court. In line with the recommendations, the implementation plan describes revising methods of child engagement to better understand how children can engage with the litigation process. Experts will also be instructed to inform measures for diversified advocacy, representation, and support for children. The 2015 recommendations of the Vulnerable Witnesses and Children Working Group are given particular credence in the report, and are addressed in the plan.
However, the points over which the court may have control – such as the appointment of 16.4 guardians – is never expanded upon. The report rightly notes that Section 7 reports are the key way in which children are involved in private litigation. The issues with this approach are given limited coverage in the report, with which Cafcass has openly disagreed. However, short of calling for the court to be ‘more vigilant’ in considering the appropriateness of separate representation, there is little to no substantive guidance on how to move forward.
Safety and experiences at court
The panel has identified the practical difficulties for victims of domestic abuse attending court. Namely, victims report concerns for their physical and mental wellbeing at each stage of the proceedings; from travelling to court, to being in the court building, to being present in the courtroom, to the prospect of attending court for multiple hearings to achieve an outcome. Practitioners will no doubt recognise the difficulties in obtaining private spaces for their clients within busy courts, compounded by the often elusive process in obtaining special measures for those cases in which they are needed. Absent of these measures, victims report often feeling physically vulnerable to intimidation and attack, and psychologically vulnerable to recounting their experiences within proceedings. The report suggests that these consequences are not properly considered, particularly in the case of litigants in person, who, without the benefit of legal advice, do not know what measures are available to them. Victims face the possibility of either cross-examining or being cross-examined by their abuser, depending on how each party is represented.
The implementation plan has adopted many of the special measures recommended by the report. In any event, the cross-examination of victims by perpetrators and alleged perpetrators of abuse is due to be prohibited as part of the Domestic Abuse Bill, although it is not indicated whether or not victims who are LIPs will still have to put questions to their alleged perpetrators. The prohibition will also apply in circumstances in which certain offences have been committed, such as child abuse and sexual abuse and other violent crimes. Alleged victims of domestic abuse will be automatically eligible for special measures in the family courts, with the MoJ and HMCTS reviewing the data to ensure that parties are better aware of their rights to these measures. Additionally, the President will be invited to consider amending practice directions to ensure that IDVAs, domestic abuse advocates, and mental health support workers always be allowed to accompany parties in need of support into court.
Although these propositions are also resource led, they are welcome changes that provide direct practical support to victims. However, there are notable gaps between the implementation plan and the proposals of the report. Chiefly, there was a suggestion that IDVAs, domestic abuse advocates and mental health support workers be consulted in assessing a party’s vulnerability pursuant to PD 3AA; this was not addressed in the implementation plan.
Operation of 12J on orders made
The panel broadly analyses the orders made in cases involving domestic abuse, summarising the belief that progressive contact and co-parenting are promoted, whereas dependence on the court is discouraged. There is particularly widespread sentiment that PD 12J makes no discernible difference to the types of orders made, with contact “almost always” being ordered. Professionals may be uneasy at this blanket assertion in an area where the court’s discretion is highly circumstance/case specific (indeed the panel itself had highlighted inconsistent approaches by the courts). In response to the concerns expressed, the implementation plan promises a review of the practice direction.
Barring orders – s.91(14)
Perhaps the biggest source of frustration relates to s.91(14) orders, which the panel concludes are unsuccessful in protecting victims from further abuse through repeated attempts by perpetrators to litigate. Broadly, the threshold for 91(14) orders to be made is considered too high, whereas the threshold for leave to apply once 91(14) orders are made is too low. Coupled with the extant confusion around special measures and the availability of specialist support for victims, there is a clear feeling that victims are somewhat at the mercy of perpetrators in terms of the length and persistence of applications for child arrangements orders.
The recommendation of the report is conclusive in stating that measures to “reverse the ‘exceptionality’ requirement for a section 91(14) order should be included in the Domestic Abuse Bill”, amending, replacing, or supplementing section 91(14) of the Children Act 1989 in an Article 6 compliant way, with specific policy objectives to be reflected in statute 1. In addition, there is a recommendation that the CAP incorporates a procedure for identifying and summarily concluding abusive applications 2. The implementation plan commits to clarifying the law on 91(14) orders in two ways. First, the effective implementation of 91(14) will be reviewed alongside PD 12J. Second, a (slightly vague) statement that the government will commit to exploring the best way for parents and children to be protected, where further proceedings can risk causing them harm or continuing abuse.
However, the implementation plan somewhat broadly suggests that this exploration will form a view on whether this aim is “best achieved [as] an amendment to the Domestic Abuse Bill, through other primary legislation, or through non-legislative means.” Until the implementation plan makes transparent the route towards applying the recommendations of the report, it is difficult for practitioners and the family court to anticipate any imminent changes arising from a proposed review of s.91(14).
The implementation plan may inspire debate among professionals as to whether the family courts require a “major overhaul”, or simply better training, facilities, time, and resources. Regardless, the report evidences the undisputable reality that victims of domestic abuse feel that they and their children are let down by the present functioning of the family courts.
It remains to be seen whether the government’s response will be sufficient to bring the change needed to restore trust in the family justice system, or whether continued under-resourcing will render this little more than a ‘re-branding exercise’.
1 The wording should ensure that 91(14) orders are made; when in the best interests of the child to do so; when the court concludes that bringing or prolonging proceedings by one parent constitutes domestic abuse against the other; as repeated applications are not necessary before the court can properly make the order sought; as the court can make orders of its own motion; and that leave to apply following the imposition of a 91(14) order only be granted where there is no risk of harm to the other parent or child, and when circumstances have materially changed.
2 The report calls for judicial continuity between prior and subsequent applications, and between section 91(14) orders and leave to apply applications; where there have neem previous findings of domestic abuse, the court having cautious regard to new applications; the court actively considering whether to make either a section 91(14) order, or additional orders granting protection from continuing harassment or abuse, of its own (e.g. non-molestation and prohibited steps orders); and the court managing leave to apply applications in order to minimise their collateral effects on the other parent and children.