The Problem with the nuts and bolts…

How process and procedure mitigate against fairness in cases involving coercive and controlling behaviour in the family courts.

I want to take a few moments to give you my thoughts about how process and procedure (often way before cases arrive in court) inadvertently impact fairness in the Family Justice System

I acted for 2 of the appellants in Re H-N [2021] EWCA Civ 448 both of whom I took on at appeal stage. In preparing the cases I began to reflect on the journey the clients had had through the family justice system and to consider how the mechanics of our current process can often mitigate against the correct information coming to light at the right time, resulting in irreparable harm, costly litigation and, potentially unfair results.

To me, the singular most important outcome of H-N was the recognition of the importance of understanding patterns of coercive and controlling behaviour, and contextualising the other abusive behaviours within this framework.

The appeals were heard shortly after the enormously helpful judgement of Mr Justice Hayden in F – M 2021[1]in which the method of identifying CCB was explored. Para 60 of the judgement pointing out that understanding and identifying coercive and controlling behaviour required

“an evaluation of a pattern of behaviour in which the significance of isolated incidents could only be understood in the context of a much wider picture.” (para. 60)

With both coercive and controlling behavior ( CCB) and economic abuse (which is of course based on controlling behaviour) now enshrined in the statutory definition of Domestic Abuse and in light of the findings from the hidden harm review we are now in a situation where statute, caselaw and detailed observations from those who use the family justice system daily are all highlighting the importance of identifying and evidencing this dangerous behaviour.

Indeed, we need to go a stage further with CCB, rather than just recognising it as another type of abuse to be selected from the drop down list as it currently presents in the court forms (C1A and FL401)  it should be the lens through which all other abuse / allegations are considered. Its existence alters real consent; it alters the sinister nature of acts which might otherwise appear more innocuous. This was a point well made by Barbara Mills QC on behalf of the second interveners (‘Women’s Aid’, ‘Rights for Women’, ‘Rape Crisis England and Wales’ and ‘Welsh Women’s Aid’) in H-N[2]. She submitted that ‘the overwhelming majority of domestic abuse (particularly abuse perpetrated by men against women) is underpinned by coercive control and it is the overarching issue that ought to be tried first by the court.’

The Court of Appeal said,

‘Consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined.  The principal relevance of conducting a fact-finding hearing and in establishing whether there is, or has been, such a pattern of behaviour, is because of the impact that such a finding may have on the assessment of any risk involved in continuing contact.’ (para 50)

Given the centralisation of the importance of identifying CCB it follows that practitioners on the front line should really be screening for and addressing CCB before anything else.

This makes sense because it is such a dangerous behaviour…and the risks associated with it, which include murder, are at their highest at the point of trying to leave the relationship, i.e very likely at the entry point to the family justice system. According to Jane Monckton Smith[3]the cluster of CCB, violence at even a low level, and separation increases the risk of homicide by an astonishing 900%.

So, if we are cognisant of the inherent dangers of this behaviour and we recognise the importance of its early disclosure why are we failing to identify and evidence it properly in case preparation?

The difficulty we face is that process, procedure and pressure of time mitigate against early identification and evidencing these more insidious forms of abuse.

It might sound basic but an insight into the practicalities of the client’s legal journey to court will highlight some significant issues which need ironing out. By understanding these issues rather than just focussing in silo on the specific part of the journey we, in our individual roles, are dealing with will enable a fairer process whilst the reforms which will flow from the Harm Panel, the DACs office  and the private law programme can work on fixing some of the contributory issues.

Lets start with

1. Identifying the problem

Given the squeeze on all advice services and the increased isolation resulting from the pandemic there are serious concerns about the growing number of people experiencing CCB who may not identify themselves as victims or the behaviour as abusive. This is because CCB isn’t very visible, its ongoing rather than episodic and its power is cumulative.   The impact of CCB serves to undermine the victims confidence and self worth and hinders their ability to value their own right to live without fear. It ultimately results in a person being ‘trapped’ resulting in options, choices and ability to make decisions drastically diminishing effectively ‘restricting the sphere for action’. Without identifying the abusive nature of the behaviour or its hidden danger their chance of seeking help is low.

Public education programmes to raise awareness and funding for proper screening are woefully inadequate so this isn’t just a problem for now but also for the future.

Those experiencing CCB are usually controlled financially so that accessing help, or even the means to leave the house, becomes impossible. I have clients who have been physically locked in whilst their partners go out and others who have to account for every penny and every movement. Many clients have told me that they thought it was ‘normal’ to have to ask for money to buy milk or to have their phone taken away at night or to limit their calls to family.

Being in that situation you are unlikely to refuse a sexual advance?….but is that the same as consent? Of course not.

The psychology behind how this control becomes possible is well documented …I can’t count how many women have said:

‘I know it’s stupid…I know I should have done something…I know I should have left…it seems crazy when I look back on it.’

After identification, the next major hurdle is accessing early advice

2. Accessing early legal help

Even where a survivor realises they need early legal help to understand their options we are in an increasingly difficult position

Early legal advice has now largely been removed from scope following LASPOA. Although still available for survivors of domestic abuse, that abuse needs to be evidenced in one of a number of prescribed forms most of which focus on physical abuse reported to people in positions of authority, doctors/ health workers/ IDVAs . The capacity to get to these people both physically and mentally may be an insurmountable hurdle for someone experiencing CCB.

Moreover, the providers of legal help are dwindling by the day. The rates for this early intervention, which is a little bit different from the legal aid used to litigate, usually amount to less than £20 per hour. It is simply unworkable for legal aid providers to offer this service so many simply don’t. Employing even unqualified staff to do this work is more expensive than the rate received for the job!

With fewer and fewer family lawyers doing this early level legal help it is harder and harder to find support. The Law Society has identified advice ‘deserts’ all over the country with huge areas who have no firms prepared to do the work at all. This means clients who may have hardly any opportunities to seek help will be being turned away.

It takes on average 17 attempts to leave an abusive relationship, around 3 years, imagine how difficult it is if you muster the courage but then can’t get the advice. Often its just easier to ‘keep the peace ’in order to ‘stay safe’

Until that no longer becomes possible…

3. Crisis Point applications

It is therefore little wonder that cases reach a crisis point before help is sought. They often present following a ‘tipping point’ where risk is heightened in terms of threats or physical injury. Clients will often make first contact when they need a domestic abuse injunction. For this type of legal aid they don’t need to pass through the same evidential hoops but the rates aren’t much better and the existence of punishingly low fixed fees incentivises speedy applications by junior staff….both the speed and lack of seniority of the lawyers dealing with these emergency cases mitigate against the right environment to expose the more insidious and dangerous forms of abusive behaviour such as CCB. The same factors mitigate against gaining the trust and confidence needed to discuss sensitive issues such as sexual abuse.

The fee is either £500 or £600 depending on whether in or out of London. Around 20 hours of work are needed for a straightforward case. Most aren’t. Interpreters, additional needs, listing difficulties, an explosion of respondents in person mean that again the work is barely able to cover its own cost.

So the fixed fees and the speed with which the process of what is often the initial application sets the scene for the rest of the evidence

This fails the client in 4 fundamental ways:

1. There is no time to explore more nuanced abuse patterns
2. A focus on physical abuse as its easier to prove…letting the evidential tail wag the dog
3. It Invalidates the survivors experience so that she already hasn’t felt heard
4. CCB continues to be marginalised rather than centralised as an abuse pattern for the specific client and wider society.

So these initial applications often fail to plead the full extent of the abuse. Apart from anything else, it may not be needed to get the injunction over the line so a short term, a results focused view is taken.

4. Subsequent proceedings

Very often an escape from an abusive relationship will mean a break in contact arrangements. Again the removal of legal aid for early advice becomes a problem. This time it’s usually fathers who can’t get the early legal help to negotiate or consider their options because the same early help which is limited for survivors of abuse is completely denied for them. Their choices are to apply to court, walk away from a relationship with their children or, try a negotiation directly which may present considerable danger.

Any other options such as early help and advice to work on their behaviour / seek help/ negotiate are denied. This is one of the biggest economic blunders LASPOA makes. The ‘on cost’ to the public purse of denying these fathers that advice is entirely disproportionate.

So, we have a father who feels desperate, no legal advice and an application often filled in with the help of an unqualified but well meaning third party.

The application is issued and (usually) the mother will receive notice and be asked to complete a form which has a list of abusive behaviours she can cite. They appear as a tick box list but nowhere are the more nuanced behaviours explained, nowhere is CCB centralised as the lens through which other behaviours should be seen and everywhere the suggestion is that you need corroborative evidence. The form lends itself towards physical abuse particularised as incidents with evidence for each.

Of course the die is cast. The hurried statement from the non mol and the C1A focus on evidenced, particularised incidents, coupled with a rushed advisor and a traumatised victim, this will simply continue the practice of marginalising and ignoring these dangerous behaviours. …..

Where there hasn’t been an injunction but simply a cessation of contact, the litigation might begin as a private law application The Private Law Advisory Group states that “it is important that scarce resources are targeted to ensure that the most vulnerable children and court users are not disadvantaged. Identifying safeguarding concerns and issues of domestic abuse at an early stage is key to this.’  Limited resources present a real problem that needs careful management but when considered alongside the identification problems outlined the limits on resources gives rise to a real risk that unidentified or marginalised dangerous behaviours will be overlooked resulting in diverting abuse cases away from court and resulting in considerable risk.

Assuming abuse in some of its forms is recognised. Eventually we should reach a fact find. The move away from Scott Schedules is very welcome but finding an adequate replacement is hard.

It has become something of a lottery for those of us who advise. Excellent judges don’t shy away because it’s harder to prove CCB but it does require a more inquisitorial approach and a levelling of the playing field to ameliorate, at least to some extent, the impact of trauma.

Fact finding hearings are more stressful than any other because of the binary nature of case progression. The horror of failing to prove abuse and being treated as if it never occurred is unimaginably difficult. There are few very experienced counsel who will act for legal aid rates so there is rarely equality of arms for publicly funded clients.

In addition there is the enormous impact of trauma on ABE for victims at these high stake hearings.

Irrespective of the welcome measures in the DAA on special measures and the prohibition on cross examination, one of the main problems is still that many expect ‘victims’ to appear in a certain way, and when they don’t their credibility is undermined… the psychologists warn us that trauma doesn’t work like that,

Trauma victims go into flight/ fright mode, they jettison what they don’t need in pursuit of survival. This means facts/ dates / times ….essentially all the things which made their evidence credible.

One of my clients actually threw up in the court room on hearing her ex’s voice, even though she had a screen. It was involuntary.

Trauma has a bearing on proceedings in so many different ways

1. Trauma impacts how the abuse is presented in the first place so that well qualified trauma aware advisors should be on the front line
2. Trauma impacts the ability to recall and secure the details to make evidence bind together with facts/ dates and times
3. Trauma requires patience and patience requires time none of which our current system has
4. Trauma makes actually physically appearing in court almost insurmountable for some
5. Many find the experience completely retraumatising, taking them right back to the abuse
6. Our current system is NOT trauma informed at all

The Domestic Abuse Commissioner  confirms that The Family Court is the single most common issue which victims and survivors of domestic abuse mention when writing to her .The correspondence received reflects the findings in the Harm Panel Report. Key issues identified by the Harm Panel and raised by survivors to the DAC include:

1. a culture of disbelief of allegations of domestic abuse;
2. a lack of understanding or minimisation of abuse;
3. the pro-contact culture within the Family Court putting them and their children in danger due to children being forced to have contact with an abusive parent;
4. Treatment of  survivors throughout the proceedings, resulting in their re-traumatisation.

And there’s another aspect to trauma, vicarious trauma, experienced by those working with trauma victims in the system which affects the wellbeing of us all and it inhibits us doing the best job we can for our clients if we don’t identify and deal with it.

To ameliorate the impact of trauma we need time, patience and understanding. Sadly all 3 are hard to find in our current system.

We have overfull courts, long lists, litigants in person who may have failed to comply with directions, fee structures which force us to rush, funding schemes which force judges to spend time they don’t have on being case managers…the result is a very uneven playing field

A traumatised client whose lived experience hasn’t properly been validated from the outset, rushed through a process at a speed which doesn’t factor in the emotional journey at all, trying to shine in evidence which often appears inconsistent to her first hurried statement because our entire system has mitigated against her …

Her evidence may have gaps, inconsistencies. In trying to plug the gaps there may be frustration, why isn’t the case better prepped? why hasn’t she got the evidence?

When things go wrong…as they sometimes do, we have the appeal process. Except again, it isn’t accessible to all. Legal aid for appeals is difficult to secure, for privately paying parties it carries a huge cost, and a huge costs risk…and for all it risks re traumatising once again. Its far from ideal which is why the transparency review is so welcome.

Also hugely welcome is the DAC’s proposals for the national monitoring and reporting mechanism which was a key recommendation of the harm review accepted by the government..

A Monitoring and reporting mechanism  will help:

1. Secure data to improve understanding of how private law children cases involving domestic abuse are treated
2. Lift the lid on inconsistent practice and help expose training needs
3. Enable the voices of survivors and children to be heard.

We need to recognise that the problems with the system have their roots well before a case gets to court. Only a joined up approach will move this one forward. Transparency and a working together of all professionals within the system is essential. We all have our own lens through which to view failings. This isn’t the fault of judges/ over stretched courts/ underpaid practitioners etc it’s a collective problem which needs a collective solution.

That solution MUST include

1. A shared understanding of all forms of abuse and how to evidence them
2. A fundamentally improved understanding of the risk of abusive behaviour patterns to children and families
3. An understanding of the impact of trauma on evidence
4. Accountability and transparency of process and decision making. 

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[1] F v M [2021] EWFC 4

[2] Re H-N and Others (Children) [2021] EWCA Civ 448

[3] Monckton-Smith, J., 2021. In Control: Dangerous Relationships and How They End in Murder  [S.L.]: Bloomsbury Publishing.