This is the conclusion of the Domestic Abuse Commissioner for England and Wales who has published a report about family courts which, unsurprisingly, criticises the lack of government action on the commitments it made in 2020, following the ‘Harm Report’. The report also analyses what positive progress has been made to date.
The report is 72 pages long and very comprehensive. It is based on research from:
- Analysis of correspondence from people who have been through court (acknowledged as not being a representative sample of all court users)
- A series of roundtable discussions by professionals, support services, court users, and campaigners.
- A survey of 133 lawyers
- A review of existing evidence
- Surveys following the Channel 4 ‘Dispatches’ programme in July 2021 (again acknowledged as self selecting samples).
There is an executive summary published alongside the report, so we are not going to attempt to summarise it here. Highlights are in news coverage by Hannah Summers here. It’s worrying to see that many lawyers believe that family courts retraumatise victims.
We will look at the ten final recommendations made by the Commissioner:
R1) The monitoring mechanism recommended by the Harm Panel that is being established within the Office of the Domestic Abuse Commissioner and in partnership with the Victims’ Commissioner must be allocated sufficient funding both for its pilot phase and, subsequently, for its national roll out.
This is a scheme that is due to be piloted in three courts during 2023-2024 that will analyse family courts’ approach to domestic abuse. It includes studies of closed files; observation of hearings, and focus groups. Although funding is in place for the pilot, the DAC is calling for a commitment to subsequently fund a monitoring mechanism in all courts.
R2) The government should establish, and provide appropriate funding for, a new HMCTS role of Domestic Abuse Best Practice Lead in every Family Court area.
The vision for this role is set out in detail and sounds like a terrific idea. The DAC has estimated it would cost £4.7 million per annum.
R3) The Commissioner recommends the Ministry of Justice develop and deliver an ambitious plan to consolidate the best learning from the Pathfinder Courts, as well as from strong local practice elsewhere in England, Wales, and internationally to inform future practice, delivery, and policy development. The Commissioner also recommends Pathfinder Courts should be resourced appropriately as part of wider efforts to roll out nationally.
The Pathfinder Courts are in North Wales and Dorset and have been operating for just over a year on the basis of more joint working between the courts and local services. Feedback from them has been positive, as described by the President in his recent ‘View’. An evaluation is being undertaken which, it is hoped, will find that these arrangements are cost efficient and can be extended to other courts.
R4) The Commissioner recommends for the Ministry of Justice and Family Justice Board to work with the Commissioner to capitalise on existing work, such as the Pathfinder Courts, to further strengthen the consideration and understanding of the voice of the child when domestic abuse is raised by drawing from the principles presented in this report.
Chapter 7 – ‘Centring the voice of the child’, that leads to this recommendation, makes interesting reading and is recommended. The report is quite positive about progress being made in Cafcass and Cafcass Cymru on listening to children’s views on reluctance, resistance or refusal of contact. Two main problem areas are identified where perpetrators of abuse turn these situations into allegations against the other parent. First, where the perpetrator tries to deflect attention from the abuse by blaming the other parent for the child’s reluctance etc. The second is where the perpetrator is using the child as a means of further coercion and control.
R5) The Commissioner recommends greater transparency and consistency across the whole family justice system, so that a full culture-change programme of training on domestic abuse is provided.
By ‘transparency’ here, the DAC is saying she wants organisations responsible for training in the courts, legal profession, Cafcass and local authorities to be more open about the nature and take-up of the specialist training they are currently running.
R6) Funding should be made available by the Ministry of Justice for specialist domestic abuse training. This training should include the impact of domestic abuse on adult and child victims and survivors.
Current arrangement are not consistent in providing trauma-informed training. The DAC especially calls for more consistent training for magistrates and legal advisers.
R7) Every survivor going through the Family Court should have access to a specialist domestic abuse support worker. The Ministry of Justice should explore options for investment into these roles for both the delivery of the role, but also for the professional development of the role.
The DAC is understandably promoting greater use of support workers for domestic abuse victims. The main problem, apart from there not being very many, is that support workers can usually only work with clients for a few weeks at crisis point, whereas family proceedings can last for years.
R8) The Qualified Legal Representative scheme should be fully and appropriately resourced in order to ensure effective implementation.
The QLR was established by the Domestic Abuse Act 2021 to provide a service whereby (where parties were acting in person) an independent lawyer could be brought in cross examine an alleged victim instead of this being done by the alleged abuser or the judge. The DAC notes that this scheme has been unsatisfactory, mainly because of low pay rates and no reimbursement of travel expenses. We have written another blog post about this topic here.
R9) The Government should remove the means test for legal aid for all victims and survivors of domestic abuse going through private family law proceedings.
This recommendation is largely based on the survey of lawyers, who indicated that the complexity of legal aid assessment was one of the major problem areas. The lack of legal aid has led to more parties acting in person which is usually inappropriate in domestic abuse cases.
R10) The Commissioner recommends the Ministry of Justice consult with her Office, the specialist domestic abuse sector, the relevant regulatory bodies, NHS England, NHS Wales, the specialist children’s sector to develop a stricter definition of psychologist. The Ministry of Justice should identify an appropriate legislative opportunity to implement this definition.
This recommendation arises from the ongoing controversy of non-regulated and poorly qualified psychologists being commissioned by courts to write reports on ‘parental alienation’. There is a useful analysis of the deployment of this term on pages 26-28.
The report was launched at the House of Commons today.
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