Failing Family Court undergoes major reform following national review
The announcement by the Ministry of Justice, Thursday, 25th June that there will be sweeping reforms to the Family Court system and process has been welcomed by many elected officials and organisations, and crucially welcomed by survivors of domestic abuse whose voices helped shaped this change.
But does this mean a transformational change in the Family Court system?
The Family Court system has become a focal point for domestic abuse organisations and campaigners over the past few years, highlighting a dangerous and inequitable legal system that perpetually fails vulnerable women and children who have fled domestic and sexual violence.
Over the years there has been some half-hearted and inconsistent attempts to trial domestic abuse courts across part of England and Wales but the majority of private family cases have been heard in local family or magistrate courts with no safeguarding measures for victims of domestic abuse.
During hearings, victims have had to sit next to or opposite their abusive partners who have been allowed to question them during fact finding and final hearings. This in itself has causes many victims to avoid Family Court proceedings, fail to attend proceedings and has disproportionately led to victims and children suffering further emotional harm.
In a study conducted by Children and Family Court Advisory and Support Service (CAFCASS), two thirds of 216 children contacts cases, 23% of cases permitted unsupervised contact orders, ignoring claims of domestic abuse by the mother.
This has led to tragic and unavoidable consequences. 21 children have been murdered by their fathers during contact ordered by the Family Court between 2006–2019.
Recommendations
Family Courts will now have to install long overdue special safeguarding measures such as protective screens and separate entrances, creating a safer space to protect the victim from physical and psychological intimidation.
There will also be a barring order in place to prohibit repeat applications to Family Court by the abusive partner — a tactic commonly employed to exploit and maintain power and control post-separation, often causing catastrophic financial fallout and deepening emotional trauma to the victim and children.
The Children 1989 Act already includes a little used clause Section 91.(14) designed to prevent “further applications to court being made in respect of the children in the particular case as it requires a permission hearing each time the parent makes an application.” This new barring order must be enforced in cases of continuous applications so the Family Court system is not clogged up with repeated challenges to a child contact order already in place and limit 24 hour emergency orders for non-urgent issues being granted.
Hearings will now take a more investigative and less adversarial approach as part of the Integrated Domestic Abuse Courts pilot. Family and criminal matters in be considered in parallel, providing a holistic context in order to make well-informed and evidence based orders that places the safety of the victim and child at the heart of decision-making.
In practice this should shift the narrative and focus from the Mother having to submit evidence of domestic abuse, eradicating the derogatory and loaded term “over-protective mother” and lead to a more rigorous challenge of evidence and accusations by the abusive ex-partner — more often than not a litany of lies.
The Domestic Abuse Commissioner and Victims Commissioner will also play a role in monitoring and reporting on private family law proceedings in cases where there is evidence of domestic abuse.
Transformational Change
In Wales victims and survivors of domestic abuse are fortunate to have direct access to elected officials by several avenues and contribute regularly to cross-party groups at the Senedd as well as invitation to round table discussions and reviews by relevant agencies.
Responding to the report Sara Kirkpatrick, Chief Executive, Welsh Women’s Aid said; “critically the report’s recognition of alignment with the Welsh devolved context is vital to ensuring the whole system delivers maximum protection, safety and support for all survivors of abuse.”
We cannot continue failing children and survivors who have experienced domestic and sexual violence. This veil of silence has been lifted to show a deeply flawed system that has unwittingly become complicit in secondary abuse.
Is this the moment we see transformational change in the Family Court system? Let’s hope so because we cannot continue with a legal system that is complicit in secondary domestic abuse.
