The Christmas and New Year break should be a blissful rest from the ceaseless bombardment of family law news. At least, that’s my theory. However, the break from which we are all now reluctantly emerging was rudely interrupted courtesy of a series of articles by The Guardian newspaper.
It all began on 22 December when the paper ran a piece (which I understand appeared on the front page of the ‘hard’ copy of the paper, possibly the next day) revealing, as the headline told us, “how the family courts allow abusers to torment their victims”. The piece was the culmination of a ‘Guardian investigation’, which “shows how women are often cross-examined by violent ex-partners in secretive civil court hearings”. There are, of course, a few issues with this statement.
Firstly, the statement (and the rest of the article) suggests that only women are victims of domestic violence. Domestic violence victims are, of course, predominantly women, but there are also a large number of male victims. If the idea of men being tormented in court by their abusers is hard to grasp, I’ll give a couple of examples that might make it clearer. What about the man in a same-sex relationship who is abused by his male partner? Or how about the woman whose abuse of her male partner is backed up by threats of violence from her family? The issues highlighted in the article can apply to men as well as women.
Secondly, the statement refers to “secretive” court hearings. It is particularly disappointing that a so-called ‘quality’ newspaper should use the mistaken and misleading language of the “corrupt family courts” brigade. As I have explained here previously, the family courts are not ‘secret’, they are ‘private’. There is a big difference, and The Guardian should know it. It does state later in the article that “Family courts cases are held in private in England and Wales”, but then goes on to say that not just the evidence but also the judicial decisions are “mostly still secret”. Anyway, more on the subject of opening the family courts in just a moment…
The third issue I have with the statement is that it assumes that all of the ex-partners are ‘guilty’ of violence. Obviously, the court will not decide the matter until after it has heard all of the evidence. The court may, of course, find that the allegations of violence have not been proved.
The final issue I have with the statement is the use of the word “often”. Now, I am most certainly against the idea of victims being cross-examined by alleged abusers, but just how often does it actually happen in practice? This is very difficult to quantify, but the anecdotal evidence that I have heard suggests that it is actually quite rare. In many cases the alleged abusers are represented by lawyers who do the cross-examining. Where they are not represented, they may choose not to cross-examine the alleged victim, or the judge may undertake, or at least very closely oversee, the task.
Whatever the numbers, this is still a problem and, as The Guardian reported on 30 December, and the President of the Family Division confirmed on the same day, he remains concerned about the fact that alleged perpetrators are able to cross-examine their alleged victims. However, as he points out, reform is a matter for the government, not the judiciary. Quite what form any reform would take is not clear. Would it be simply that the task of cross-examination is given solely to the judge? That is not exactly desirable, for obvious reasons. Of course, the real answer would be to enable alleged perpetrators to get legal aid so that they are represented in court, but somehow I can’t see this penny-pinching government bringing back legal aid, whatever the need.
Not satisfied with this interruption of Christmas, The Guardian had another card to play. On 23 December it reported that the President is to pursue a ‘radical trial’ this year, whereby certain family court hearings are to be held in public. This came as news to most family lawyers, who were not aware of any such pronouncement by the President. Perhaps the President now communes with the media before informing the profession of his intentions, as The Guardian is insistent that a pronouncement is imminent. Whether it is, and what exactly it contains, we will have to wait and see.
Anyway, so much for that Christmas break…
Photo by observista via Flickr under a Creative Commons licence.