The panel led an insightful discussion which explored the progress made since the Domestic Abuse Act 2021 and the ongoing challenges survivors face when navigating family courts. The event highlighted the pressing need for reforms that truly prioritise survivor safety and access to justice. Nicola Thomas, an MSc Law and Professional Practice student at The Dickson Poon School of Law and volunteer with King’s Legal Clinic, sets out her ‘key takeaways’ from the event.
What barriers do those who have experienced domestic abuse face when accessing family courts in relation to children and other family law proceedings?
There was no dispute during the discussion that the length of family court proceedings can negatively affect survivors and their families. Additionally, the absence of previously widely available legal aid has led to many representing themselves in court. This unequal access to legal representation has only deepened the gendered nature of domestic abuse and ultimately serves to undermine justice. It was also highlighted that many survivors feel unsafe in the family court due to national inconsistencies when applying for special measures e.g. separate waiting rooms, use of screens.
Jenny Beck explored the detrimental effect that legal systems have created for survivors. Those who have experienced abuse have to frequently revisit trauma during proceedings, and that the effects of trauma are often not properly understood in legal settings. She explained that the part of the brain that remembers factual accounts shuts down when experiencing trauma and can make that person look less credible. It is clear that the system is not designed to uncover the truth of domestic abuse and currently fails to provide a safe mechanism to prevent abusive and damaging cycles of behaviour. Our court system must continue to create a trauma-informed approach to litigation to avoid survivors feeling invalidated, silenced and re-traumatised.
The panel explained that it is not uncommon for the perpetrator to utilise court proceedings to manipulate and abuse further, particularly using counter-allegations of ‘parental alienation’, a disputed term used to suggest that a parent has significantly influenced a child against the other parent. Therefore, the facts and issues left to the court to determine can often be subject to high levels of distortion, which makes it increasingly difficult to understand, in sequence, the complexity of domestic abuse and its effects.
A strong theme that emerged was the family court’s inability to hear children’s voices efficiently. The courts have continually shown their resistance to placing the child at the centre of proceedings. Jenny Beck stated that only 50% of children are being consulted during legal proceedings, regardless of their ability and age. Children who are entangled in domestic abuse are victims in their own right and the legal system needs to adopt change to combat this inconsistency.
Mandip Ghai discussed the importance of shielding survivors and children from further harm. Legal proceedings can pose a reoccurring risk, as the threat of court proceedings may worsen the reality for many. Mandip reiterated the importance of acknowledging the system’s shortcomings, in order for problems to not become further entrenched in the system.
How do you evaluate the progress of the Domestic Abuse Act 2021, and do you think the provisions go far enough?
The Domestic Abuse Act 2021 (‘the Act’) outlined specific provisions to help those who have experienced domestic abuse to access the courts. The Act has generated a wider understanding of coercive control and highlights the concept that children are victims in their own right. The Act has certainly created a momentum for change. It introduced the role of the Domestic Abuse Commissioner, who is dedicated to reform and offers clear methods of accountability.
The Domestic Abuse Act 2021 aims to make it easier for survivors to access ‘special measures’ in court proceedings such as separate waiting rooms, screens and video links. Whilst resourcing proves challenging, courts are becoming increasingly able to facilitate these measures. Furthermore, the Act prohibits survivors and perpetrators from cross-examining one another. The Qualified Legal Representative scheme was introduced by the Ministry of Justice so that lawyers can cross-examine a witness on behalf of someone who is otherwise self-representing. Whilst this appears beneficial, it has proven challenging to implement as the fees for such work are comparatively low.
Mandip Ghai also discussed a new protective order which has been piloted in Greater Manchester and several London Boroughs. Unlike Non-Molestation and Occupation Orders, Domestic Abuse Protection Orders (‘DAPOs’) are cross-jurisdictional and can be made in criminal, family and civil courts. DAPOs can be applied for by the police, friends and family as well as the person experiencing abuse. The new order can also force the perpetrator to take action, potentially in the form of behaviour change programmes. However, DAPOs require perpetrators to attend a police station and provide their name and address within three days. Therefore, perpetrators may be increasingly likely to contest DAPOs due to the accountability that comes with them. There are also questions about whether DAPOs will address concerns related to current protective orders, particularly regarding enforcement when breaches occur. The pilot is being evaluated and may offer valuable insights into whether DAPOs provide more effective protection for survivors compared to the existing range of orders.
The panel agreed that limitations of the provisions in these circumstances does not necessarily centre around the remedies themselves, but access to them. The Act has brought increased public and institutional awareness and widened the definition of domestic abuse. The Act has certainly made progress in the right direction; however, funding is a clear barrier to the provisions being successfully implemented and so the correct resources must be allocated with haste.
What more can be done within the family justice system in England and Wales to improve support for survivors of domestic abuse?
The panel reinforced the need for trauma informed practice, as practitioners taking an interdisciplinary approach will allow survivors to receive the most appropriate support in the face of debilitating abuse.
The panel’s insights reinforced that while important steps have been taken, there is still a long way to go in ensuring the legal system provides meaningful protection and support for those affected by domestic abuse. The speakers were hopeful regarding reform but noted continuing issues when identifying and understanding the nuances of coercive and controlling abuse, inadequate data collection and the lack of communication between systems.
Nicole Jacobs discussed pathfinder court pilots occurring in North Wales and Dorset which, amongst other measures, provides an early child impact assessment during family proceedings, undertaken by the local services. The assessments aim to understand the individual situation for each child and act as a base line for abuse to be understood in a family context. The pilot also aims to eventually create a requirement for a picture of the child to be at the front of every court paper. It was encouraging to hear about the reforms that have been made to centre the child through pathfinder court pilots. However, it is unclear that enough is being done to actually empower children to use their voices, which may require a more creative approach to be taken.
What is the main thing you took away from the event?
It is crucial to continue to think creatively and advocate for wider cultural reform surrounding domestic abuse and its impacts. The panel were keen to illustrate that, while legislation provides an important grounding for legal proceedings, this will only yield success if professionals are open to being educated on the reality of abuse and its impacts. Transparency, consistency and accountability for decision-making will continue to be important focus points for legal professionals and the system as a whole.