Domestic abuse bill
Divorce  |  Domestic Abuse

Family courts to be overhauled to protect abuse victims

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Walker Family Law
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It has been another big week for family law news. Following the passing through parliament last week of the Divorce, Dissolution and Domestic abuse billSeparation Bill (which has now received the Royal Assent), the government has this week announced a major overhaul of the family courts, aimed at protecting victims of domestic abuse.

The reforms will include new protections for victims of abuse when they go to court, stronger powers for judges to prevent abusers repeatedly dragging a victim back to court, and the trialling of a new investigative court process aimed at reducing conflict.

The reforms follow an expert-led review into how the family courts handle domestic abuse and other serious offences, which raised concerns that victims and children were being put at unnecessary risk.

Looking at some of the reforms in more detail:

Protection for victims at court

The review found that regardless of the outcome of the case, victims generally reported not feeling safe at court and the evidence submitted suggested that they often found that the court proceedings themselves had been re-traumatising.

The review therefore recommended that victims of domestic abuse going through the family courts be given an automatic entitlement to special measures in the courtroom, such as separate waiting rooms, separate building entrances and protective screens to shield them from their alleged abuser in court.

Stopping abusers repeatedly bringing cases back

Under the present law the court may, when disposing of a children application, order that no further such application may be made with respect to the child concerned by any person named in the order, without leave of the court. The idea behind these ‘barring orders’ is to prevent parents continually taking cases back to court, at least for a set period of time, set out in the order.

As barring orders restrict a person’s right of access to the court, they can only be made in exceptional circumstances.

However, the review, concerned to stop abusers repeatedly bringing cases back to court, recommended that this ‘exceptionality’ requirement be reversed. In particular, it recommends that barring orders may be made where the court concludes that the bringing or prolonging of proceedings constitutes domestic abuse against the other parent.

Looking at the presumption of parental involvementparental alienation child with parents

In 2014 the ‘presumption of parental involvement’ was enacted, requiring any court dealing with a children application to presume, as respects each parent, and unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. The idea behind the presumption was to emphasise the importance of a child having a relationship with both parents.

However, the review received evidence to the effect that in some cases the presumption further reinforces a ‘pro-contact’ culture, and detracts from the court’s focus on the child’s individual welfare and safety.

It was therefore recommended that the presumption be reviewed, to see whether the right balance is struck between the risk of harm to children and victims, with the right of the child to have a relationship with both parents.

Trialling a new investigative process

At present family cases are usually dealt with using an ‘adversarial’ process, whereby each party presents their case against the other, and the court adjudicates between them.

The review felt that this process often worsened conflict between parents, which could re-traumatise victims and their children.

Accordingly, the review recommended the trialling of an investigative, or ‘inquisitorial’, problem-solving approach in private family law proceedings, in order to reduce conflict. Such an approach could see judges decide what evidence to investigate, rather than both parties simply presenting their cases. Emphasis would be placed on getting to the root of an issue and ensuring all parties are safe and able to provide evidence on an equal footing, without the re-traumatising effects of being in court with an abusive ex-partner.

Further information

You can read the full report of the review panel here.