‘Far too often survivors and their children have been let down and retraumatised through the process and it is one of my utmost priorities to change this’

This is a quote from the website of the UK Domestic Abuse Commissioner, Nicole Jacobs, on the release of ‘Improving the family court response to domestic abuse’, a 29-page report on her work to date on establishing a mechanism to monitor the way allegations of domestic abuse are dealt with by family courts, as was recommended in the Harm Report of June 2020. The Commissioner’s Office has consulted widely on this idea before putting forward these plans. (A list of participants is set out in Appendix 2 to the report.)

This new monitoring mechanism is intended to help ensure that the family justice system has a culture of safety and protection from harm, where:

• children’s needs and the impact of domestic abuse are central considerations;
• survivors feel able to raise domestic abuse; and
• children and survivors of domestic abuse feel listened to and respected.

It aims to:

1. Increase understanding, transparency and accountability within the family court on how: allegations of domestic abuse, and children and survivors, are treated; and the longer-term impact on survivors and children.
2. Lead to more consistent and effective application of the key relevant Practice Directions and new Domestic Abuse Act measures, within each court area, and across all court areas.
3. Ensure children and survivors of domestic abuse can feed back on their experiences, and that this feedback is acted upon.
4. Ensure the particular barriers faced by black and minority ethnic, deaf and disabled and LGBTQ+ survivors are better understood and addressed, and achieve a better understanding of the different barriers male and female survivors face.
5. Draw out and share the findings and learning from the mechanism and emerging lessons learnt from the relevant family justice pilots to inform the private law reform programme.
6. Help to ensure that all family court professionals have the training and support they need to make the safest possible decisions, based on the increased information and understanding from the mechanism, including dissemination of best practice.

There will first be a scoping exercise of current available data and then a pilot phase across three court areas. It is envisaged that this pilot will begin in spring 2022.

What does this mean for families going through proceedings?

The proposals are ambitious and will need to be carefully tested, so we won’t be seeing big changes anytime soon, although we hope that practice in general is improving since the publication of the Harm Report and its messages are being taken on board.

The proposed monitoring and reporting mechanism is not about regulation or inspection and does not mean that anyone extra will be turning up to check on a court hearing or will able to help with individual complaints.  What is proposed is that information is made available on how courts are actually addressing the issues that came up in the Harm Report, and that we see constantly being raised by aggrieved parties and concerned observers in research and in the media. The benefits to families through review and improved practice may therefore be in the longer term, but there should also be benefits in the near future through awareness of these new systems of scrutiny.     

What do we need to know?

The priority areas that were identified during the consultation are:

1. Access to legal representation, use of special measures (participation directions), what happened about cross examination; access to support from advocates, interpreters etc.
2. Pathways to court: who is applying and what for; whether mediation was attempted and if so, what happened?
3. The conduct of proceedings. This is a lengthy and detailed list, including safeguarding concerns, the nature of allegations; the type of evidence; whether there was a fact finding hearing held; whether interim contact was ordered; use of expert witnesses; whether any interventions were ordered or attempted.
4. Final orders: together with any outstanding concerns; return to court etc.
5. Experiences of parties and children: this is where people going to court may notice the mechanism operation because their feedback before and after proceedings will be sought.

Transparency

We are pleased to see specific reference in the report to the importance of generally improving the data collected and made available about the justice system and the President’s recommendation in his Transparency Review for a scheme of compulsory data collection at the end of each case. The report notes wider open justice discussions by active researchers like Natalie Byrom and TP member Judith Townend.   

As the former President of the Family Division of the High Court, Sir James Munby, now Chair of the Nuffield Family Justice Observatory has said, without reliable data from the family justice system, we are working in the dark . This new monitoring and reporting mechanism will be one step forward in working toward an open and fairer system for children and families in private law proceedings, through gathering and analysing evidence on one of the most conroversial aspects. Perhaps it will lay the way toward ways of providing better public information on other areas of confusion and alleged injustice.

Image of Nicole Jacobs from the Domestic Abuse Commissioner website.

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The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

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