Survivors of domestic abuse and the Family Justice System

Earlier this year, King’s Legal Clinic invited Jenny Beck KC (Hon) to speak at a panel event alongside Nicole Jacobs, Domestic Abuse Commissioner for England and Wales, and Mandip Ghai, Senior Legal Officer at Rights of Women, to discuss survivors of domestic abuse and their journeys through the Family Justice System. Here, Jenny explores some of the points touched upon, in more detail.

Jenny Beck KC (Hons)

Our Family Justice System is in trauma, yet we don’t admit it. We continue to operate as if it is a functional and fair system, but it isn’t. Underinvestment, work overload, chaos and burnout have become the norm. The journey for children and families through the system is far from ideal. There is:

• Unequal access to justice
• Lack of transparency, consistency and accountability for decision making
• Siloed systems which do not speak to each other
• An adversarial framework imposed on what should be an inquisitorial, problem-solving, trauma informed process
• Ineffective mechanisms to hear children’s voices

Against this broken system, survivors of Domestic Abuse experience even greater difficulties. They are likely to be experiencing trauma and need additional protection to ensure their rights are upheld – yet the issues raised above disproportionately impact them.

 

Legal aid and access to justice:

Unequal access to justice results from a number of issues which disproportionally impact survivors of domestic abuse. One is the impact of the destruction of any proper legal aid scheme. Prohibitive bureaucracy (including gateway and unnecessary means testing) and challenging eligibility rules mean many survivors of Domestic Abuse are denied representation. But this isn’t the only problem.

Unmanageable rates mean that legal aid lawyers are dwindling in number, meaning that survivors who are eligible for legal aid find it increasingly difficult to find a solicitor to take their case on. Many report calling dozens of lawyers before finding anyone with capacity to help.

Intersecting complexities, such as individuals with complex needs, language barriers or additional communication needs find getting help even harder under legal aid as their cases will potentially require more time against a fixed fee regime. Black and minority women are even more marginalised.

Those who can get help have mixed results. There are some amazing legal aid lawyers out there but there are also those who operate under models which do not deliver the time and or expertise needed for survivors.

Representation at court is the next hurdle. With private cases commanding fees ten times greater, it is often difficult to secure much more than a very junior barrister at court for legal aid clients. Yet these are complex cases. Evidencing abuse, its impact on children and the associated danger against a culture of ‘contact at all costs’ takes persuasion and experience.

Given that men usually earn more than women, an uneven playing field emerges. Domestic Abuse is a gendered crime disproportionately impacting women. Men are often more able to afford expensive and experienced barristers leading to inequality of arms which undermines justice.

Where alleged perpetrators cannot afford representation, the situation is no better. This is also unjust and encourages a new route for post separation abuse via the court process itself – the process which is supposed to be keeping survivors and their families safe.

In short, the impact of cuts to legal aid and the lack of commitment to a workable system has dealt survivors a real blow. It has made an already fragile system even more unfair and dangerous.

 

Inconsistency:

Our current siloed system allows poor practice to hide, and inconsistency and unfairness to prevail with little accountability. This has led to a postcode lottery of justice.

Having noticed that the process for securing protection orders seemed to vary depending on location, I undertook some informal research. Starting at the beginning of the legal journey, I called every court in the country to ask how to issue a protection order. Responses included:

• Send an application by e-mail to the judge who will consider it on the papers
• Turn up with a representative and be prepared to wait in case the judge wants to see you
• We cannot tell you because that would be giving legal advice which we cannot do
• Send us an e-mail but we cannot look at it for five days
• A very inaccessible selection of recorded choices and the phone being cut off

These alarming inconsistencies are in respect of just issuing. This does not begin to cover the inconsistencies within decision making, participation directions or timeframes.

This nation-wide inconsistency prevents me from helping my clients understand the process and the likely outcome, which helps clients navigate their stress and trauma. I’ve done this job for 35 years and I used to be able to say what would happen. Clients found this reassuring and we could plan a route through the process. Now, I cannot be sure.

 

The inadequate framework:

Domestic Abuse victims are clearly the most impacted by the absence of a system which allows them to give their best evidence. Survivors are usually in trauma, yet our processes are not trauma informed.

Siloed systems which do not speak to each other impact survivors of Domestic Abuse more as they need to revisit their trauma, repeating their story and having to justify themselves time and again. This compounds traumatisation in an uphill struggle to justice against the backdrop of a process which appears to minimise the existence and impact of Domestic Abuse because its fragile system cannot manage it properly.

We expect evidence to be clear, corroborated and for witnesses to be able to explain and forensically dive into their memory of facts to confirm dates, times, facts and feelings which support what they say. Yet the expert psychologists tell us that the impact of trauma on the brain is to shut down the part which acts as the filing cabinet of facts – the exact part survivors need to access to prove what has happened to them. We know the courts need to be trauma informed to be fair, yet they aren’t.

Even statutory efforts to balance this playing field have failed due to underinvestment. The Domestic Abuse Act prohibits cross examination. Qualified legal representatives were meant to stop the barbaric practice of allowing perpetrators to cross examine their victims. Yet the lack of funding for qualified legal representatives has resulted in a stalemate and either judges stepping into the breach or protraction of proceedings or worse, a temptation to avoid even getting to the facts because the process is so difficult.

 

The missing voice of the child:

A child’s right to participate in decision making about them and the importance of considering their wishes and feelings when making decisions are enshrined in international and domestic law. Yet, research by the Nuffield Family Justice Observatory revealed we are only hearing the voices of children in 50 per cent of cases concerning them. Worse still, only five per cent of children had more than one marker of participation. This is plainly wrong.

In short, the system isn’t designed to get to the truth. It:

• Minimises abuse and its impact on survivors and children
• Undermines a supportive framework which would allow best evidence
• Permits the silencing of survivors and children by allowing abusive litigation
• Fails to provide a safe mechanism to expose more nuanced but no less dangerous forms of Domestic Abuse like coercive control and emotional abuse.

 

The positives:

Many of the above issues were highlighted in The Harm Review now five years ago. The harm review, the Domestic Abuse Act and some pivotal cases, have resulted in some positive steps – but it isn’t enough to turn the tide.

Provisions in the Domestic Abuse Act have been helpful, but progress has been hobbled by a lack of commitment, resources and education.

My frontline observations are that there have been three significant positives resulting from the act.

The creation of the Domestic Abuse Commissioner’s role, and the Domestic Abuse Commissioner herself have pivotally kept a focus on Domestic Abuse at a policy level. This sustained pressure is critical if there is to be real change.

Wider remedies and obligations, however, several are awaited, and I can’t honestly say there has been a resulting change in experience for families. My worry isn’t about having more remedies, it’s about access to them and how we use them. 

The third positive has been the raising awareness of the wider definition of Domestic Abuse by placing it on a statistical footing. This has allowed a spotlight to shine on more nuanced and hidden, yet highly dangerous abuse such as coercive control and emotional abuse.

I am conscious that, of the 20 or so women contacting me weekly for protection, an increasing number recognise that they have been experiencing coercive control and emotional abuse. I do not think we would have had this recognition 10 years ago.

Flowing from that, screening tools and processes are being adapted. SafeLives and other training programmes are promoting awareness. On the basis that recognition of a problem is one of the first steps towards a solution, this is a good thing. 

It must follow that society is starting to see and reduce its tolerance for Domestic Abuse in all its manifestations, but this need to be backed up with action.

 

Recommendations:

Prevalence must be effectively calculated

Better calculation will reveal not just a higher prevalence but also the highly gendered nature of Domestic Abuse. We don’t currently measure the Domestic Abuse Act accurately: it’s based on Crime Survey for England and Wales and fails to account for coercive control or multiple reports, thus skewing the data by underplaying prevalence and gendered nature.

I’m afraid the Domestic Abuse Act has let us down here. It is written in gender neutral terms, yet Domestic Abuse is a highly gendered crime. This isn’t to say men can’t be affected but overwhelmingly, Domestic Abuse is perpetrated against women. A piece of legislation designed to tackle it should not have been written in gender neutral terms. 

 

Domestic Abuse and Violence Against Women and Girls must be tackled together

Sadly, the hiving Domestic Abuse off from the main Violence Against Women and Girls strategy has served to minimise Domestic Abuse. More scrutiny and pressure need to be placed on the state’s minimisation of Violence Against Women and Girls including Domestic Abuse. It needs to move right to the top of the agenda.

The commitment to halve Violence Against Women and Girls in the next decade is encouraging. But it needs proper focus and investment because society, the state and is agents are failing to use the existing remedies, especially in the private Domestic Abuse space where Violence Against Women and Girls finds a fertile breeding ground.

For instance, its 10 years since coercive control was made an offence under the Serious Offences Act. Yet, arrests, charges and prosecutions for coercive control have been woefully low. Two women still die every week and the hand of a violent partner or ex. That stat also hasn’t changed.

This is because we are still not recognising safety in the home as a significant issue. We are failing to see Domestic Abuse as an issue of human rights and afford it proper prioritisation. Education, resourcing and investment are critical to make sure that this shift in awareness actually turns into something real.

Until the harm of Domestic Abuse to children and families is centralised, the framework under which we operate is hard to change.

 

Pathfinder

There are some green shoots. Although not without its challenges, the Pathfinder pilot heralds a change in approach: moving from an adversarial position to a problem-solving approach which better hears children’s voices and identifies and seeks support for survivors of abuse at the outset. This is a definite step forward.

The recent guidance published by the Family Justice Council on alienating behaviours is also refreshing as it recognises the minimisation of abuse, the devastating impact it has on children and takes a step towards challenging one mechanism used to silence survivors and children.

 

In summary:

We need to work harder together, and across all our silos. We need to hold each other accountable to press the following points forward:

• The ‘contact at all costs’ culture must be addressed
• Children’s safety must be properly prioritised
• Children’s voices should be better heard
• Applications for protection orders should not be means tested
• The courts need to be trauma informed
• Survivors need easier routes to proper help
• Legal aid needs proper funding

 

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