A new research report paints a very alarming picture of the way in which some family courts are dealing with cases where there is domestic abuse, ignoring the procedures put in place by court rules.  Academics at the University of Sussex conducted a survey of 88 lawyers who act in private law proceedings in Sussex.  You can read the report, by Professor Michelle Lefevre and Dr Jeri Damann here. The survey asked about the application of Practice Direction 12J, the procedure that all family court courts are required to follow when there are allegations or evidence of domestic abuse. 

The key findings were:

1. Most lawyers thought that many cases were not being dealt with at correct tier (i.e. level  of court). Most cases were being heard at Tier 1, the lowest level, by magistrates.
2. There was low adherence to Practice Direction 12J by magistrates courts, and a lack of knowledge about the nature of domestic abuse and the relevant law.
3. Only half the lawyers in the survey said that where special measures (such as being allowed to use  a separate entrance or being screened from a perpetrator in the court room) were requested, these were actually in place on arrival at the court.
4. Reasons for deciding against fact finding hearings were not always accurately recorded; nor were actual findings made of abuse always clearly recorded.
5. In disputed cases, there were concerns about magistrates allowing some parties to flex power in court and paying insufficient attention to children’s and victims’ wellbeing. There were instances of confidential information being shared in court and of alleged perpetrators  cross-examining the other party.  A substantial minority of Cafcass reports were criticised as unclear or potentially unsafe.
6. Only a quarter of applications for interim contact were refused, with the apparent application of a presumption of contact even when children were distressed. Cafcass recommendations on interim contact were often unclear.
7. Court delays had a substantial adverse effect.
8. Overall, these problems identified by the lawyers had an adverse effect on families.

The report concludes that the use of Tier 1 for these complex cases is thrown into question by this survey. There appears to be evidence (from lawyers) that magistrates in the region are not consistently able to understand the mechanisms of coercive control, the impact on victims, and how to manage risk.

The co-convenor of Quality Circle (who commissioned the survey with Resolution and Kent and Sussex FLBA), Martin Downs, said, “I am concerned that this survey provides evidence that the very measures the family justice system designed to address domestic abuse are being ignored when cases are heard before magistrates. This is especially worrying as most such cases are allocated to magistrates to be heard. Additionally, this survey does not capture the experience of the majority of cases which go before the courts without a lawyer. We have obviously got a lot of work to do.”

Here are a few quotations from the lawyers in the survey, to give a flavour of the report:

I have assisted on a case in the…family court which has been shocking in the complete failure of the Magistrates, legal adviser and CAFCASS to understand and apply 12J…I was left deeply worried about the approach of this tier, particularly as most parents are unrepresented and would not know the extent to which the Court is making fundamental errors in law.

In this case CAFCASS appeared to be anticipating the approach of their local Magistrates and failed to apply even their own toolkits in providing any analysis of risk.

A case of serious domestic violence in the presence of the parties very young daughter. CAFCASS did not appear to consider Practice Direction 12J when preparing their report and recommendations and did not refer to it. Their recommendations were for contact to be supervised for 6 months with a view to contact moving to unsupervised in 6 months, despite the regular injuries mother had suffered at the hands of father. Their daughter had been exposed to father’s threats to kill, threats of violence and aggression.

I have never seen a client receive any information in advance about using a separate entrance, so they have to go in via the main entrance where they are very likely to run into their alleged abuser, they are then required to sign in with the relevant usher who is normally near the Court they will be in, so again it is quite likely they will be seen by the alleged abuser.

The Court refused a fact finding notwithstanding the history outlined on the response form even before it had ordered the parties to file any evidence on the allegations in the C1A, and then refused to review the decision after significant evidence was filed. The court 20

even initially resisted directing the police reports of an incident which involved allegations of an attempt to strangle the Mother in the presence of the child, on the basis that this was historic. The court then EXCLUDED all evidence of DA and coercive control at the final hearing, refusing to hear from relevant witnesses, and interrupting testimony on the abuse.

The magistrates and many judges always seem to apply a presumption in favour of direct contact regardless of 12J which is very difficult to rebut even when there are very serious allegations.

was once asked by a DJ in a contested injunction application why the mother had attached bank statements to her written evidence. I had to explain the definition and concept of financial control. The mother’s confidence in the justice system was severely damaged by the judicial comment.

The approach of the court has significantly added to the emotional harm and fears of the victim. It has emboldened the perpetrator who has now developed a false narrative that he was vindicated by the court which has added to his ability to harass the victim in an ongoing way. The victim was even challenged when she requested special measures by the bench and made to feel she was making a fuss which would count against her. The court gave no active consideration as to how the case was to be managed in terms of the alleged perpetrator to cross examining the victim despite being repeatedly invited to do so.

Unsurprisingly, the researchers call for more and improved training on these issues. We understand that the report has been welcomed by the Local Family Justice Board and an action plan likely. However, there is no reason to think these findings are atypical – they reflect anecdotal  evidence from all over England and Wales.   We at The Transparency Project had hoped by now to be able to observe and report on some of these issues via the legal blogging pilot; this report has spurred us on, as transparency in these cases is even more important than ever.

One interesting recommendation by Professor Lefevre and Dr Damann is that the findings from the survey should be publicised to enable other regions to take the findings and recommendations into account and to consider conducting their own survey.   The survey is attached as an Appendix to the report so could easily be used in other parts of the country.