Domestic abuse has always been a major social problem. Lawmakers and family law professionals have grappled for generations with how to tackle it effectively.
Parliament brought together the hotchpotch of statutory and common law rules into the Family Law Act 1996 and the Protection from Harassment Act 1997. At the same time local agencies and professionals were starting conversations about how communities could respond to domestic abuse incidents in a more effective way that survivors would find easier to navigate.
The Croydon Domestic Violence Survivors Forum was a pioneer in bringing together community groups, charities, lawyers, police and local authority teams. It set up an early one-stop shop where those suffering from domestic abuse could meet with police, housing and benefit teams, social services and lawyers all in one place. The seeds were sown for change that continues to this day.
Fast forward 25 years or so and, for some time now, government and the courts have been aware that the way in which family courts address domestic abuse is not fit for purpose. A review in June 2020 of the family courts in private law children cases highlighted problems such as allegations of domestic abuse being ignored, dismissed or disbelieved, traumatic court processes, children’s voices not being heard, inadequate assessment of risk and perpetrators exercising continued control of victims through repeat litigation.
There are of course existing measures designed to combat some of these issues, such as the guidelines in Practice Direction 12J of the Family Procedure Rules 2010. This sets out the rules courts must follow in domestic abuse cases, including a bar on perpetrators cross-examining victims. However, evidence from the review indicates that PD12J is often not implemented as intended. There is therefore clearly much more that can, and should, be done to protect survivors of domestic abuse.
The government’s new pilot, recently launched in north Wales and Dorset, attempts to address some of these problems. It is aimed at improving the way in which local authorities, the police and the courts share information on those that have suffered domestic abuse at an early stage. The government website summarises one of the key principles: ‘The pilots work by allowing judges to review gathered information and request more documentation before a case gets to court. It avoids the circumstances of the case being debated in court, which can often exacerbate conflict between parents. The pilot will also encourage proceedings to be less adversarial so that more emphasis can be put into investigating and addressing allegations of domestic abuse and other harmful behaviours – rather than allowing confrontation in court to take place.’
This information-sharing may include the sharing of risk assessments produced by local domestic abuse professionals so as to avoid the trauma of victims forced to retell their experiences.
It is hoped that the pilot will encourage less adversarial court proceedings that have been found to worsen conflict between parents and have a prejudicial or damaging impact on victims and their children. Better support for victims should be provided as the pilot allows judges time to investigate and address allegations of domestic abuse with the opportunity to review information and request documentation before a case even comes to court. It is anticipated that this process will prevent that difficult confrontation between perpetrator and victim in court; something which victims within the review process described as re-traumatising and making them feel unsafe.
Currently the onus is on parties to bring matters back to court if decisions made by the court are not working. However, the pilot provides that there should be a review between three months and a year after a ruling is made to ensure that those decisions are working. The review is to include an assessment of whether parties are complying with court orders or whether additional support is needed. To address one of the failings identified by the review, focus will be placed on the voice of the child at every stage of the process, rather than perhaps just at the Cafcass or social worker section 7 investigative stage. This is to ensure that children have the opportunity to explain how they feel once a court order is made, and the determined arrangements are actually put into practice.
This pilot builds on the government’s strides towards alternative and pioneering court processes designed to put families and children at the forefront. Some may remember the introduction of the Family Drug and Alcohol Courts (FDACs) piloted in 2008 that were designed to offer an alternative approach to ordinary care proceedings. The FDAC, introduced by District Judge Nicholas Crichton, aimed to provide parents struggling with drug and alcohol misuse or experience of mental health problems or domestic abuse access to a multi-disciplinary team that would work with a judge on an informal fortnightly review basis to provide intensive treatment in an attempt to help them to turn their lives around.
The last 30 years have shown that collaboration is effective as a protective tool but that innovation is essential. Multiple reforms to primary and secondary legislation have made the law easier to understand and the legal system easier to navigate. And yet survivors’ experiences of accessing justice remain traumatic. This pilot challenges the limitations of our adversarial court system and gives the judge a much more inquisitorial role, able to gather evidence from multiple agencies direct. Taking some or all of the evidential burden away from the survivor is not only sensible, but also a natural extension of the multi-agency collaboration initiatives started years ago.
The family justice system is on a long journey, searching for the best way to address one of our most pernicious social ills. We clearly have a long way yet to go but innovative projects such as this have the potential to be transformational and speed our travels.
Alex Davies is a partner and Camilla Hooper a senior associate at Cripps Pemberton Greenish
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