The Domestic Abuse Commissioner for England and Wales (DAC) this week published a report, Everyday Business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism by Mandy Burton and Rosemary Hunter, Loughborough University, on the DAC’s ‘monitoring mechanism’ of the way family courts deal with allegations of domestic abuse in cases about arrangements for children. The report’s title reflects the fact that domestic abuse is routinely a factor in child arrangements cases, in a system that was not designed and is not resourced to deal with this.
Here’s some of the media headlines:
The Bureau of Investigative Journalism: Family courts’ failure to tackle domestic abuse laid out in damning new report: Dismissiveness towards victims, ignorance around abuse and pervasive pro-contact culture found to be putting children at risk
You get the picture, and it may not look like ‘News’, so we’ll draw out some highlights here.
Context, aims and methods
The Harm Report in 2020 recommended the establishment of a national monitoring mechanism by the DAC office to maintain oversight of and report regularly on the family courts’ performance in protecting children and adult victims from domestic abuse and other risks of harm in private law children’s proceedings.
A pilot began in late 2023 comprising (1) a scoping study of what relevant data was available and (2) an intensive study at three court sites, to test the design and research methods for future rollout of the monitoring mechanism and provide baseline data.
As is well known (see Why we don’t know what’s going on in family courts) current systems for recording and collecting data from family courts are wholly inadequate and unsatisfactory, and this new report confirms this.
The three-court study collected data as follows:
- A review of 298 files in child arrangements cases from the three courts – 147 finalised by magistrates and 151 finalised by judges in a 12 month period.
- Observations of hearings in a sample of 95 ongoing child arrangements cases at the three courts over a two-week period.
- Focus groups (total 35 women) with domestic abuse survivors in each court area and interviews with judges (9), magistrates (7) and two Cafcass/Cafcass Cymru officers working in each of the three court areas.
The three courts selected are not identified for ethical reasons – two were in England and one in Wales. The research plan was that other groups would be asked to participate e.g. children; perpetrators; male survivors. For a range of reasons these samples couldn’t be recruited.
What the report tells us
In the case file study, 57% of cases mentioned two or three types of domestic abuse. In the observed hearings, domestic abuse was identified as an issue in 73% cases, but only considered to be relevant to the outcomes for children in 42% of the observed cases. In interviews, judges and magistrates said that where allegations were made these were typically denied by the party subject to them; the file study showed that there were responding cross-allegations of abuse in about 1/4 of cases. Interestingly, this study showed quite low numbers of allegations of ‘parental alienation’, almost all of which were responses by fathers to allegations of domestic abuse.
Most survivors in the focus groups felt they’d been made to feel that domestic abuse was irrelevant to child arrangements and had been discouraged from raising allegations. Judges and magistrates interviewed believed that contact should continue with both parents unless there were exceptional circumstances and that a ‘no contact’ order would be a last resort. They said they made it clear to parties early in proceedings that domestic abuse is not a barrier to contact and that everyone had to be ‘child focused’.
Despite the high rate of abuse allegation, fact finding hearings had been held in only 3% of the observed hearings and only 4% of the case files. Interviews with judges and magistrates suggested that fact-finding hearings were to be avoided if possible, despite the court rules and case law. Lack of resources put pressure on judges and magistrates to deal with cases as quickly as possible and on Cafcass staff to limit their inquiries.
The small number of fact-finding hearings found in the case files (12) and for observation (3) mean that there was little evidence for the researchers on the effect on outcomes of allegations being found to be true or not. They noted several shortcomings in the fact-findings exercises they did identify. For example, in Re H-N, [2021] EWCA Civ 448, the Court of Appeal had advised courts to seek narrative statements from the parties rather than Scott Schedules (in which individual allegations of abuse are itemised) in preparation for a fact finding. However, the study showed that courts still tended to reply on Scott Schedules, even after Re H-N was widely publicised.
Another limitation on making safe arrangements was the lack of supervised contact services and domestic abuse perpetrator programmes.
The report concluded that, although there had been some developments – e.g. in case law – the minimisation of abuse, trauma of court proceedings, silencing of children’s voices, and unsafe orders that exposed children and parents to continuing harm – as identified in the harm report in 2020 – continues.
A comparison of interim and final orders showed a shift between relatively protective short-term arrangements to final orders for joint residence, unsupervised overnight contact, or quite rapid progression to unsupervised contact. The file data showed no relationship between the types of orders made and whether or not domestic abuse had been raised as an issue in the case.
There were some examples of improved practice since the Harm Report, for example, special measures in the courtroom being used more consistently However the overall picture is one of almost all cases going to court involving some issue of domestic abuse and, while there may be some initial recognition of risk, the structural factors of the pro-contact culture result in most allegations being treated as marginal or irrelevant. The Executive Report says (p 24) that
By the time final orders are made, issues of domestic abuse have fallen by the wayside and there is no discernible relationship between domestic abuse allegations and the final ‘live with’ or ‘time with’ orders. As the Harm Panel documented and survivors affirmed in focus groups, however, abuse has often not fallen by the wayside for the children and survivor-parents concerned. In many cases they will continue to live with, have contact with and be harmed by the abusive parent pursuant to the court’s orders.
In an interview on BBC Radio 4 Woman’s Hour on 14 October, Nicole Jacobs did not (as suggested by the interviewer) attribute the ‘antiquated’ approach only to a lack of knowledge and understanding by judges and professionals but said this was just one aspect of a wider systemic problem. Family courts were not set up to deal with the prevalence and impact of domestic abuse on children and protective parents.
The future
The authors recommend several improvements to the recording and collection of relevant data by the courts. They want the monitoring mechanism to continue and to be expanded to include the Pathfinder courts and financial remedy cases.
They want further research into areas of particular concern:
- identifying domestic abuse as an issue in safeguarding reports
- the process prior to, during, and after fact-finding hearings
- Section 7 reports
- the supportive role of lawyers
- the intersection between domestic abuse and ethnicity; immigration status; disability; health.
The next phase of the monitoring mechanism should include active participation by children and further interviews with court professionals.
We assume there will be a response to the recommendations by the Ministry of Justice.
Image: Ministry of Justice building – Google Streetview
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