Beck Fitzgerald are proud to be representing two of the Appellants in the seminal case before the Court of Appeal, where the court are considering important issues concerning the treatment of domestic abuse in private law proceedings involving children including: the application of practice Direction 12J; the impact of trauma on achieving best evidence; the treatment of coercive control and sexual consent in the Family Court.
I have taken a moment to reflect on some of the less obvious but nonetheless significant issues arising while we await judgement.
Firstly, the treatment of coercive control itself within family justice process is not just about recognising this abuse and ensuring appropriate training is put into practice, but more about developing a system which allows and encourages coercive and controlling behaviour to be disclosed, understood and actioned in both the family and criminal courts. We need a better way to ensure those systems work together to help keep families safe.
Coercive control should not be simply seen as another type of abuse alongside a ‘drop down’ list, with a requirement that it is evidenced in the same way as other forms of abuse. It’s impact is all-pervasive, fundamentally impacting sexual consent, risk and risk to children within all cases where it features. We need a much better way of identifying coercive control early and assessing its impact on other aspects of the case.
Secondly, the appeal process itself presents a number of very real hurdles. It is clear that certain aspects of the family justice system have been failing women without a process for challenge: Publicly funded clients often suffer for want of a transcript and high quality advice on appeal; those paying privately will be deterred by the cost risk against the backdrop of already having felt let down by the court; litigants in person may struggle to grapple with the points of law or procedural deficiencies they wish to appeal. All would-be appellants will run the risk of being re-traumatised by the process. There needs to be a better way of checking the system is delivering fair outcomes than resorting to individual appeals to identify system failings.
Thirdly, criticism of the handling of cases should not sit solely with judicial decisions. The low fixed fees andconsequential difficulties of securing expert representation leaves many accepting representation which lacks the attention both procedurally and in respect of evidence gathering, that should be hardwired into case preparation. There is very little comeback for clients and we should explore the impact of this and what should be done across the profession.
Finally we need proper training and a proper common understanding of important issues including coercive control and sexual consent. We need to understand the training that is given across the family justice system regarding proper screening and evidence gathering, otherwise the application of a fair, considered process will inevitably fail.
Jenny is a founding director and an award-winning family lawyer committed to accessible justice and the rights of the individual. She specialises in complex financial disputes and helping resolve arrangements for children. She is an accredited Resolution specialist and an Advanced Family Law Panel member.