Working with separating couples or helping parents navigate a new co-parenting relationship, we often encounter high-conflict cases. We are used to the animosity and the anger, and we do our best to help clients reach settlements and arrangements with the least possible damage to their relationship with each other and with their children.
But what is often not understood or appreciated by family lawyers is the impact of trauma, which can infiltrate every aspect of a client’s experience of the family justice system. Trauma experienced in childhood, or within relationships (including domestic abuse) can impact the client’s current presentation, affecting their decision-making ability and judgement, their ability to parent, their presentation when giving evidence, their general demeanour and their ability to cope with everyday life tasks.
Acknowledging trauma
According to academic research published last year, while 93.5% of barristers and solicitors in England and Wales working in criminal practice said they work with traumatised people, only 8.7% have attended trauma-informed practice training. The figures are likely to be similar in family law.
Recognising and understanding the signs of trauma is the first step in being able to provide a more holistic and trauma-informed service to better support clients. This will not only enable us to provide a better experience to clients as they navigate the process of separation, but may also have a significant impact on the outcome of a case.
There are four main types of trauma response:
- fight: feeling angry, tense or on edge;
- flight: trying to avoid conversations, shutting down or feeling overwhelmed;
- freeze: feeling stuck, disconnected or unable to focus; and
- fawn: saying yes to everything, even if it is not what you want, just to keep the peace.
The object is to keep clients within their ‘window of tolerance’, away from these trauma responses, which is the best state in which to function.
Without being able to recognise and understand the signs of trauma and how it may affect a client, particularly during pressure points in the legal process, there is a real risk that justice will not be served. For instance, a client who has been emotionally controlled by their spouse during the marriage may shut down during financial negotiations and agree to a deal which is not favourable, in order to avoid further conflict with their abusive spouse. Following that client’s instructions, without a true understanding of what they are experiencing and why they are giving those instructions, may lead to a settlement that is not in the client’s best interests.
To take another example, there may be evidence in a children hearing of the mother writing tender messages to the father which he relies on in court as evidence of their good relations. These, however, could be examples of a ‘fawn’ response designed to protect the mother from further abuse, rather than a message reflecting how she was actually feeling.
Furthermore, experience of abuse often triggers post-traumatic stress disorder. The way PTSD manifests can often be misinterpreted, leading to an individual’s testimony being unfairly dismissed as weak or unreliable.
Trauma’s link to injustice
Without a clear understanding of how trauma affects behaviour, legal professionals risk overlooking the truth, resulting in unjust decisions with far-reaching consequences. This is a crucial access to justice issue, and one which we believe all family practitioners – as well as Cafcass and the judiciary – need not just to be aware of but also properly trained in.
The current system is quite simply not fit for purpose and fundamental change is long overdue. Recognising that trauma-awareness and trauma-informed practice are at the heart of a fair justice system, the Law Society of Scotland has already collaborated with the Scottish government and other stakeholders to develop a Trauma-Informed Lawyer Certification Course for solicitors working across multiple practice areas.
We believe that such training in trauma-informed practice should be mandatory for all family law professionals in England and Wales. For, until everyone involved in the family justice system is fully aware of the potential role that trauma can play in cases, there is a real risk that justice will not be served.
Natalie Sutherland is a partner at Burgess Mee, London. Hannah Budd a divorce consultant at Rosefield Divorce Consultancy, London. The firms have designed and undertaken bespoke trauma training and have launched a trauma resource to support clients, www.withinthewindow.com.
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