A closer look at the latest call for a family justice inquiry

Family Law | 3 Jun 2019 0

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In my weekly review post here last Friday I mentioned the recent call from a group of 37 “concerned family and human rights lawyers, working in-house in women’s organisations, in private practice and at the Bar”, who are asking for an independent inquiry into the treatment of domestic abuse in the family courts. As I said, they do not think that the twelve-week review into how the family courts protect children and parents in cases of domestic abuse and other serious offences, that was recently announced by the Ministry of Justice, provides “enough time to properly evaluate the reasons why the system is currently placing children and victims at unacceptable risk”, and they therefore ask for a full public inquiry. I thought I would have a closer look at what they said in their letters to David Gauke, the Justice Secretary, and Paul Maynard, Parliamentary Under-Secretary of State for Justice, in particular their twelve-point plan of possible improvements to the family justice system for their proposed inquiry to consider.

Before I begin I should explain for the benefit of the lay reader that the system does already include rules to deal with child arrangements cases “in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.” This is Practice Direction 12J (‘PD12J’), which sets out what the court must do in such cases. You can find PD12J here. The problem with PD12J, say the authors of the letters, is that it is inconsistently applied by courts across the country, with some courts ignoring it, or ‘nodding it through’, “without any proper risk assessment, leaving women and children vulnerable.”

OK, on to the twelve-point plan, and my comments (where sequential points deal with related issues, my subsequent comment covers all of those points):

1. “Improved procedures for early notification and identification of abuse within the wider definition.”

Comment: They do not elaborate upon what ‘improved procedures’ they seek, so I’m not quite sure what they mean here, but the wider definition refers I assume to the proposed statutory definition of domestic abuse contained in the government’s Domestic Abuse Bill. As to early notification, the application form for a child arrangements order (which you can see here) already requires the applicant to state whether domestic abuse is an issue, and if so requires them to complete a form (see here), giving details of the alleged abuse. I don’t know how much earlier the court can be notified.

2. “Triaging of domestic abuse cases to be undertaken by an independent body properly qualified to understand and identify abuse and risk.”

Comment: Does this mean a specialist court, as suggested at point 6 below, or something else? Surely, consideration of the truth of domestic abuse allegations, which must be done before any further steps are taken, is a function of a court? If so, then isn’t this already how the system should work (subject to proper training of the judiciary – see point 9 below)?

3. “A review of whether the current approach to fact-finding hearings (including decisions by courts on whether to hold a fact-finding hearing, the fact-finding hearings themselves and what happens after findings are made or not made) is the best approach for survivors of domestic abuse and children.”

4.“Fast-tracking cases with disputed allegations of domestic abuse to a fact-finding hearing so the nature, extent and impact of the abuse can be identified. Where findings of domestic abuse are made, decisions made by judges following findings of domestic abuse should prioritise child safety and take into account risk assessments completed by accredited domestic abuse experts. Sufficient resources will need to be made available for risk assessments.”

5.“The fact finding must offer a fair process with:

a. A consistent national approach to special measures

b. Legal aid for both parties where financially eligible up to  the conclusion  of the hearing

c. National guidelines for timely police disclosure

d. A domestic abuse coordinator in each court appointed in order to specifically ensure that victims going through the court process are properly protected and all necessary measures are in place, to try to minimise the risk of further abuse through the court process.”

Comment: It seems to me that point 3, which suggests that fact-finding hearings may not be the best approach, is inconsistent with points 4 and 5, which suggest improvements to fact-finding hearing. Or maybe I’m just being pedantic. Whatever, I’m not sure that much of this actually goes that much further than PD12J, assuming PD12J is properly and consistently applied. In other words, we just need to make sure that the present system actually works as intended. As for getting more resources, including for legal aid for both parties, good luck with that.

6. “Explore alternative justice models for domestic abuse cases, for example:

  • Specialist domestic violence problem solving courts similar to the FDAC model adopting a multi-agency approach to domestic abuse.
  • Trauma informed models such as the approach taken by the Family Violence Courts Division of the Magistrates Court of Victoria, Australia).
  • Involving independent domestic violence advisors and independent domestic violence advocates during the process to assist the court and survivors.”

Comment: OK, I’m all for looking at alternatives. Of course, if they require further resources then that may be a problem.

7. “There should be a court recorder collating data which is made publicly available and reporting good and bad practice to the Domestic Abuse Commissioner to embed better practice and instil greater confidence in the court process.”

Comment: Agreed, provided it does not overburden already hard-worked court staff.

8. “Where domestic abuse is established (through a fact-finding hearing or otherwise) protective measures must be considered expeditiously.”

Comment: See my comment to points 3 – 5 above.

9. “Training for the judiciary to better understand domestic abuse, particularly the nuances and subtleties of abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.”

Comment: Agreed, although the judiciary already receives training in this area. Is there such a thing as too much training?

10. “More accredited perpetrator programmes which should be both clearly accessible and better resourced so that if a referral is made the outcomes are easier to predict and timescales are clear in order for sensible case management to take place.”

11. “Both survivors and perpetrators spend too long waiting for support or change programs. This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.”

Comment: That old issue of resources again…

12. “Legal aid for early legal advice needs to be reintroduced for ALL separating parents who are financially eligible. Cases that do not involve domestic abuse or safeguarding issues could then be diverted from the court system to mediation.”

Comment: Again, and as I said on Friday, good luck with getting legal aid reintroduced. As for the second point, this seems to suggest compulsory mediation, which I always thought was something of a non sequitur. The process of mediation involves encouraging the parties to agree a settlement, not imposing a settlement upon them. To agree matters, the parties must engage with the process. If they are forced into such a process against their will, then they are surely unlikely to engage.

You can read the full text of the letters here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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