Two days ago, we saw the announcement that, under Jade’s law, parental responsibility will now be automatically suspended for parents who have been sentenced for killing someone they shared parental responsibility with. We welcome this announcement and what it represents for children’ safety but we recognise that there is still a long way to go in the protection of victims of Domestic Abuse.
In Domestic Abuse Awareness month, we question whether enough progress is being made within private law proceedings concerning children to protect survivors of abuse and ensure that they can take the necessary steps to protect their families from harm.
The Harm Report is now three years old. It explored how effective the family courts were in identifying and responding to allegations of domestic abuse within private law proceedings concerning children concluding that family courts fail to provide adequate protection from further harm, rendering victims equally, if not more, vulnerable. They Harm panel identified four systemic barriers that play a role in the court’s inability to respond consistently and effectively to domestic abuse:
- Resource constraints affecting all aspects of private law proceedings.
- The pro-contact culture in the courts and the minimization of abuse.
- The problem of silo working and a lack of coordination between the courts and other agencies, and
- The problem of an adversarial system.
The panel proposed a number of sensible recommendations aimed at addressing these barriers, including i) making the Child Arrangements programme have a safety-focused, trauma-aware and problem-solving approach; ii) increasing investment in all areas involved in the protection of victims; iii) implementing measures to ensure victims’ safety at court; iv) training delivery for all participants in the family justice system; and v) implementing mechanisms to enhance communication, coordination, continuity and consistency between all agencies involved.
In response to these, the government issued an implementation plan setting out a range of measures designed to address some of the concerns raised in the report. Some of those measures provided cause for optimism however continued resource constraints threaten to hobble progress.
To start with, the Pathfinder Court pilots are very encouraging. They are trialling a new approach to child arrangements in Dorset and North Wales with the aim of breaking down silos within the family justice system and improving information sharing between agencies. As a result, early indications show that victims are better protected at an earlier stage, litigation is reduced, and the voices of children are listened to sooner and at every stage of the process.
Other government-supported measures will allow a deeper insight into the challenges. For instance, the critically important monitoring and reporting mechanism commenced by the Domestic Abuse Commissioner should increase transparency and accountability within the family court by exploring how allegations of abuse are treated across the country.
However, as acknowledged by the Harm Report, the lack of resources in the sector directly impacts the effectiveness of these and every other measures proposed. The reality is that, if real systemic change is to be achieved by, for example, adopting the fresh Pathfinder Court approach, a change in resource allocation will need to be made.
The enactment in 2021 of the Domestic Abuse Act was another step forward in the sector. It included several measures which had the potential to improve the experiences of survivors and children in court. For instance, victims and witnesses in court became automatically eligible for special measures and perpetrators, or alleged perpetrators, of abuse were automatically prohibited from directly cross-examining their victims. However, examples of sensible strategies like these being undermined by a lack of investment are all too obvious at the coalface. This nod towards a more trauma-informed approach has been, once again, undermined by penny-pinching.
The Qualified Legal Representative Scheme (QLR) was established to address the automatic prohibition of perpetrators, or alleged perpetrators, of abuse from directly cross-examining their victims. Lawyers (solicitors and barristers) were invited to put themselves forward to be qualified legal representatives at rates a little over those offered under the Family Advocacy Scheme. Unsurprisingly, with these derisory rates and the absence of any freely available training, there has been little take-up and, therefore, the scheme designed to ameliorate the impact of direct cross-examination is doomed to failure. Judges are placed back in the role of having to step in to prevent direct cross-examination and proceedings have been adjourned and protracted, prolonging the trauma and exacerbating the potential for abuse before a resolution. This is a direct consequence of resource constraints and the absence of a properly funded system.
Meanwhile, the removal of DAPPS and the failure to replace them with any workable, accessible and safe alternatives for perpetrators where findings are made leaves a huge gap and highlights the lack of any real focus on victims’ protection and a worrying disregard of the risk domestic abuse cases have.
Other measures like the deep dive into the presumption of parental involvement contained in sections 1 (2a) of the Children Act have not reported as planned and the pro-contact culture continues to raise questions about how risk is appropriately prioritised in the best interests of children.
A further threat, linked to an increase in parents resorting to court proceedings, has been an unprecedented increase in allegations of so-called ‘parental alienation’. Although the concept has no evidential basis, it has been increasingly raised as a reason why a child may be reluctant to see a parent. Reliance upon it within litigation has provided an effective weapon for perpetrators to silence their victims, who have lost trust in the system to protect them.
The entire focus of funding has driven a more litigious approach to dispute resolution within family law with the misguided removal of huge areas from the scope of legal aid and the consequential removal of safe, regulated child centric legal advice at the outset of cases. Desperate families resort to court where there may have been other solutions. The overcrowded courts should have been preserved for cases where no alternatives were possible in light of the risk of harm. Instead they are overcrowded resulting in dangerous risk to families and victims of abuse.
Nobody should live in fear of abuse and the courts must provide a haven where allegations can be raised, safety assessed and where the protection of families and children are prioritized. Undoubtedly, we have taken positive steps forward since, and because of, the publication of the Harm Report and, unquestionably, the latest news re Jade’s law shows good progress. However, we are nowhere near where we should be. Effective resourcing and a fundamental understanding of the real risks posed by all types of domestic abuse must provide the bedrock of a safe system and, until we see them taking place, we will keep persevering.
Jenny Beck KC (Hon)
Anna Neira Quesada LAPG
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. In 2021 Jenny was made an Honorary Kings Counsel (KC Honoris Causa) in recognition of her contribution to changing the law of England and Wales