Domestic abuse allegations in family proceedings
Speech to charity helping litigants in person
I mentioned here the other day a speech that the President of the Family Division Sir Andrew McFarlane gave a couple of weeks ago to a conference held by the Support Through Court charity, formerly known as the Personal Support Unit, which provides free support and guidance to litigants in person. I thought I would have a closer look at what he had to say.
The theme of the conference was actually the conduct of private family law proceedings relating to children, following the abolition of legal aid for such matters in 2013. However, as that is a hot (-ish) political issue in the run-up to the general election, the President chose to avoid it (a pity – it would have been interesting to hear what he had to say), instead giving an overview of domestic abuse allegations in family proceedings.
Domestic violence, not abuse
He began by looking back at his early days as a young barrister forty years ago, when we used the term ‘domestic violence’, rather than ‘domestic abuse’. As he explained, ‘domestic violence’ then meant just that: “No physical assault; often no injunction.” Any other type of behaviour that took place ‘behind closed doors’, such as coercive control, was not considered to be the concern of the state or the courts. And the physical assault had to be reasonably serious to merit the protection of an injunction. I remember those times well, and I have to admit that I don’t recall seeing too much of a problem with the law as it then stood. Thankfully, we have all moved on since.
And the President explains how that began, with the 2000 Court of Appeal case Re L, “which established authoritatively that which we all now take to be blindingly obvious, namely that children can be profoundly negatively affected, in short, ‘emotionally abused’, by simply living in a household where domestic abuse takes place whether or not they have directly witnessed any particular incident of violence.”
As an example of where we are now, he mentioned the recent speech to the House of Commons by Rosie Duffield MP, in which she explained her personal experience of domestic abuse, describing the humiliating and controlling behaviour she suffered at the hands of her partner. As the President said, those listening were given a first-hand account of circumstances that will be familiar to every family judge and magistrate in the country. He went on:
“Ms Duffield’s important speech and the significant reaction to it demonstrated to me that society as a whole still has a distance to travel in understanding and accepting the corrosive harm that can be done to individuals who find themselves drawn into a coercive controlling relationship. I am equally clear that our understanding of these matters today is no more than that; it is our current understanding. We are bound to learn more and gain further insight in the years to come, just as we have done in the forty years since my time in the county court applying for ‘domestic violence’ injunctions.”
Full confidence in the courts
The President explained how he had full confidence that every judge and magistrate hearing family proceedings will be applying the wider definition of domestic abuse, which includes coercive control. That confidence stemmed from two things: firstly, the family judiciary has since 2008 been obliged to approach issues of domestic abuse in accordance with a Practice Direction 12J (which I referred to in this post that I wrote back in 2017), and secondly the sheer volume of cases that are heard.
But the President is not complacent. “These are difficult cases.” He says. And in any event, a finding of domestic abuse does not, of itself, in every case determine whether the perpetrator should or should not have any further involvement in the life of his or her children. This is important to understand. Indeed, there are those who believe that a finding of domestic abuse should automatically mean no direct contact between the child and the abusive parent.
On the subject of not being complacent, the speech concluded with something I have also mentioned here: the President’s suggestion that researchers investigate perceived failures by the family justice system mentioned in the media, to see whether any lessons can be learned.
You can find the full speech here.
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