APPENDIX 39
Memorandum submitted by the Family Justice
Council
INTRODUCTION
The Family Justice Council (FJC) is an
advisory non-statutory Non-Departmental Public Body sponsored
by the Ministry of Justice. It is responsible for advising Government
on the operation of the family justice system and for making proposals
for reform and improvement. The FJC is chaired by Sir Mark Potter,
the President of the Family Division. It is an inter-disciplinary
body with representatives of all the key professions that work
in the family justice system including doctors, social workers,
cafcass officers, family judges, family lawyers, police and officials
from relevant Government departments and agencies.
EXECUTIVE SUMMARY
The FJC submits that:
— an effective strategy
to combat DV requires leadership at ministerial and senior judicial
level and Government commitment to appropriate levels of funding;
— more finding of
fact hearings are required in child contact cases where there
is a history of DV;
— more supervised
contact centres are needed;
— urgent legislative
action is needed to enable cafcass to routinely carry out CRB
checks in all private law cases;
— the criminalisation
of breaches of DV injunctions has been a retrograde step;
— a properly funded
public information and media campaign on DV is required;
— DV awareness and
respect in relationships should be made available under the personal
development strand of the national curriculum to all children
in secondary education, and;
— DV awareness should
be included in all relevant degree level and professional qualifications
and training (eg in social work, law and medicine).
1. Enormous advances have
been made since 1997 in tackling the issue of domestic violence
(DV) in England and Wales. A major factor in this has been the
joined up approach of the Interministerial Domestic Violence Group.
This has led to new legislation and good practice protocols and
the dissemination throughout England and Wales of previously isolated
areas of good practice and the development of a multi-agency and
cross-departmental strategy. The Family Justice Council (FJC)
believes the task for the next decade will be to update and monitor
the effectiveness of the relevant legislation and protocols and
to encourage Government to continue to give priority to the funding
that is needed. National strategies require coordination and leadership
at ministerial and senior judicial level.
2. New legislation has come
into being including the Domestic Violence and Witnesses Act 2004,
the Female Genital Mutilation Act 2003 and most recently the Forced
Marriage (Civil Remedies) Act 2007. All three give a clear message
that DV in all its forms is no longer acceptable in this jurisdiction
and that the perpetrators will increasingly be brought to justice
and victims protected.
3. The Family Justice Council
has made DV one of its principal strands of work. In 2007 the
Council contributed to the funding and development, (in partnership
with the Ministry of Justice and the Family Law Bar Association
(FLBA)), a DVD which explains to victims of DV the court civil
and family court process they will go through and eases their
fears of it.
4. The FJC believes that the
issue of court fees payable by victims of DV, either in respect
of injunctive proceedings or issues relating to children, requires
consideration so that victims are not deterred from access to
justice due to not being able to finance the proceedings. Access
to legal aid is an increasing issue—it is very difficult,
if not impossible, for a litigant in person to prepare for and
conduct a lengthy "finding of fact" hearing (see page
18 NIAP)
In 2006 HMICA conducted an inquiry into
the response of the Courts Service and CAFCASS to DV. The final
report was highly critical, see http://www.hmica.gov.uk/files/HMICA_Domestic_violence_linked1.pdf
5. As part of its response
to this report the FJC recommended to the 40 local family justice
councils that they held multi-agency training day on DV awareness
and produced a training pack to assist them in this. A quarterly
newsletter produced with the Ministry of Justice, as an update
on recent developments in the field of DV is distributed to its
members and all 40 local family justice councils—to cascade
relevant information across the family justice system. This information
is also placed on the FJC website. The Chair of the FJC Domestic
Violence Working Group, District Judge Mornington, sits on a number
of national and international bodies, including the ACPO DV and
Honour Based Violence (HBV) groups, in order to link and coordinate
the response of the criminal and family justice systems and to
share experience with other jurisdictions (her speech given in
Pakistan in April 2007 is at annex 1).
6. Further to a report by
Wall, LJ of Feb 2006 to the President of the Family Division commenting
on the Women's Aid Federation of England paper 29 Child Homicides:
Lessons still to be learnt on Domestic Violence and Child Protection,
the FJC produced Everybody's Business. The President had
asked the FJC to make recommendations on how the courts should
respond to applications for contact by consent in cases involving
a history of DV. The FJC offers it for the consideration of the
Select Committee (www.familyjusticecouncil.org.uk/docs/reportoncontact.pdf).
See also (at annex 2) a paper by Lord Justice Wall given to the
Hertfordshire Family Forum at the Law Faculty of the University
of St Albans, 13 March 2007.
7. A Practice Direction is
currently being drafted for the future guidance of the courts
on child contact and DV. A cultural change is required, with a
move away from "contact is always the appropriate way forward"
to "contact that is safe and positive for the child is always
the appropriate way forward". This will not be an easy task
and the FJC believes continued multi-agency training, supported
by a public information campaign will be vital to effect change.
8. In order to improve the
handling of domestic violence cases involving issues of child
contact and residence by the courts the FJC considers that the
following matters require urgent attention:
— CAFCASS needs
sufficient funding—the resultant under-staffing means that
reports are now taking between 14-26 weeks in many areas.
— Funding for more
specialist judges to reduce inordinate delay and ensure that "finding
of fact" hearings are held in appropriate cases.
— More contact centres
and, in particular, supervised contact centres are needed; most
courts have no local supervised centre.
— Services for risk
assessment need to be developed and funded nationwide—capacity
could be increased by contracting with Barnardos and the NSPCC,
or other appropriate bodies, to conduct assessments. Social Services
and CAFCASS often lack the resources to provide the service needed.
— A directory of
national and local DV services needs to be produced, and regularly
updated, for use by the courts and practitioners
— Urgent legislative
change to allow for the sharing of personal information in the
context of DV for practitioners who work directly with victims,
or who are involved in the assessment of risk, so that CAFCASS
can screen all Children Act cases by obtaining the criminal and
social services information on the parties.
9. The FJC has concerns as
to the effectiveness of the criminalisation of breaches of non-molestation
orders introduced under s1 of the Domestic Violence, Crime and
Victims Act 2004. Feedback from the Local Family Justice Councils
and from judges handling domestic violence cases, day in and day
out, in county courts up and down the country suggests that criminalisation
has been a retrograde step which provides a less effective remedy
to victims of domestic violence. The 2004 Act has removed the
power of the family courts to attach a power of arrest to non-molestation
orders and it is now for the police, and the CPS, to decide whether
to prosecute for breach of a non-molestation order. This has,
effectively, removed from the family courts the power to punish
breaches quickly. Feedback from the Local Family Justice Councils
also suggests that in many areas the police deal with breaches
by issuing cautions and do not give this work the level of priority
that the judiciary, and others in the family justice system, would
like to see. The FJC is firmly of the view that it is not appropriate
to deal with a breach of a non-molestation order by a caution
save in exceptional circumstances. The FJC also note that in many
areas the criminal courts are not able to deal with these cases
as quickly as the family courts were able to deal with them before
the 2004 Act came into force and that, consequently, victims must
now wait longer for the protection that they need. The FJC would
invite this Committee to look at the training that the police
have received on dealing with breaches of non-molestation orders
and to examine whether it is adequate to the task.
10. The ACPO Domestic Violence
Group has developed and continues to update national training
and good practice protocols for the police including MARACS. HMICA
are making regular inspections to ensure they are being implemented
but there are still worrying lacunas. FJC would recommend that
this Committee considers the HMICA reports and hears oral evidence
from them. ACPO has initiated a policy on police officers who
are perpetrators of DV—this should be considered for extension
to other professions as part of work place policies. In conjunction
with the President of the Family Division, and the Ministry of
Justice, ACPO has developed a national information sharing protocol
between the police and the family and civil courts. The Committee
may wish to consider whether more can be done in this direction.
11. Specialist Domestic Violence
Courts are being initiated nationwide. Whilst these are to be
welcomed the FJC considers it essential that funding is secured
so that the magistrates and justices' clerks who sit in such courts
and the other relevant practitioners, including probation officers
and lawyers, all receive regular, updated and sufficient training.
This has not always been the case. Two hours' training is not
adequate for the task. DV affects so many cases coming before
the magistrates and other courts including those dealing with
youth crime, drugs, prostitution, debt, children and family work.
For this reason all magistrates, judges and practitioners dealing
with these cases require regular training—not just those
sitting in the specialist courts. This Committee may wish to consider
the case for requiring lawyers, and other practitioners, to have
compulsory accredited training before they are allowed to deal
with DV cases. In NI all court staff receive DV training at induction
which should be extended nationwide. It has come to the attention
of FJC that many social workers are still not receiving any, or
adequate, DV training which endangers lives—including those
of children. DV appears as a major factor in approximately 50%
of children cases referred to social services. In the case of
s 31 applications (as opposed to referrals to social services)
evidence indicates some 45% of cases also contain evidence of
domestic violence (ie male violence)—a further 21% contained
evidence of other violence.
12. Recent changes which mean
that cases will, in future, be prosecuted by unqualified CPS staff
instead of specialist CPS lawyers has to be regarded as a major
set back to the effectiveness of the criminal courts. The defence
and family lawyers also need to be trained, and properly qualified,
and have sufficient time and experience to prepare cases. The
Carter proposals on legal services funding, which have been severely
criticised by many including the FJC, see (www.familyjusticecouncil.org.uk/docs/061004_response_
to_LSC_Consultation.pdf), will have an adverse effect on DV cases
at all levels of courts criminal, civil and family.
13. Witness protection measures
are in place to ensure that victims feel safe to access the criminal
courts and that conviction rates are, therefore, increased. These
will be enhanced by the new victim advocacy schemes. The Ministry
of Justice has sent out advice to all civil and family courts
on giving similar protection to victims and witnesses attending
court. However, reports are being received that in certain areas
such protection is sketchy and monitoring and enforcement is necessary.
Despite a number of protocols there is still an issue of failure
to keep victims informed of the progress of criminal cases. It
is unfortunate that the much heralded appointment of a Commissioner
for Victims did not, for reasons as yet unclear, and which this
Committee may wish to investigate, take place. The Commissioner
and the powers he/she would have had would have been a powerful
tool for the better protection of DV and other victims going through
the criminal justice system.
14. The Raising the Standards
(RTS) Inter-jurisdictional Group (covering England, Wales, Scotland,
Northern Ireland, the Republic of Ireland, Isle of Man and the
Channel Islands) meet quarterly to exchange information on best
practice and new initiatives and legislation and to develop new
joint strategies. Regular links are also made with EU countries
and internationally—their experience is of great value.
15. The Northern Ireland Action
Plan (NIAP) Tackling Violence at Home (,www.nio.gov.uk/tackling_violence_at_home-action_plan_oct_2005-mar_2007.pdf)
distributed through RTS, is recommended for consideration by this
Committee. They are developing guidelines for all NI political
representatives and providing a range of information and publicity
materials to all constituency offices. Consideration should be
given to extending this useful initiative throughout the UK.
16. National media campaigns
are an acknowledged tool in the battle against DV. On their own
initiative, and through partnerships developed through RTS, Scotland,
Northern Ireland, the Channel Islands and the Republic of Ireland
have long been developing and funding such campaigns. Materials
have been generously shared between jurisdictions. Joint campaigns
have taken place between NI and the Republic. Regular DV awareness
weeks take place. England has, to date, failed to have a similar
national, well funded media strategy. Funding may well have hitherto
been the stumbling block. The FJC believes that this is a matter
which now requires action and a long term strategy. What is needed
is a change of culture. Consideration should be given to a public
information programme of video reaching the courts, hospitals,
GP surgeries, housing and social security offices and, in the
case of forced marriage, airports.
17. Work place strategies
are being developed through the Corporate Alliance Against Domestic
Violence. In October 2007 RTS is holding an International Conference
in Guernsey on the theme of The Cost to Business and Society
of Domestic Violence. These strategies need further development
and funding and extension to small businesses in partnership with
the trade unions.
18. Multi-faith DV guidance
for faith leaders and communities has been developed in Northern
Ireland. The Department for Communities and Local government together
with a number of other departments, agencies and community groups
is currently working on the development of such a guide for Muslims.
If such guides are to be developed, it would be vital for them
to be extended to other faiths as a matter of priority. Such guides
can be important tools for practitioners and courts and can make
a valuable contribution to tackling honour based violence and
Forced Marriage.
19. NI is currently developing
a leaflet specifically for children on issues of DV and the law.
The FJC recommends that consideration be given to developing such
a tool for English and Welsh child victims to which the FJC would
be happy to contribute.
20. The FJC believes that
children and young people should, as part of the national curriculum
under the personal development strand, receive awareness training
in DV and respect in relationships. Designated teachers in each
school should receive awareness training and there should be specific
guidelines for school staff dealing with DV in all its forms—including
information that may be required of them by the courts. In higher
and professional education, DV should be covered in all degrees
relevant to those professions which work in the family and criminal
justice systems. This would include law, medicine and social work
degrees. As in NI, there needs to be national coordination of
training strategies. Consideration should be given to the setting
up of a National Delivery Group for children affected by DV akin
to the Scottish model. The FJC would recommend that the Watch
over Me information resources for schools funded by the Cabinet
Office and DFES be made part of a national programme for all schools
as these cover DV, Forced Marriage. HBV, gun and knife crime,
drugs and bullying. Funding should be provided, as in Scotland,
for child workers in every refuge. The FJC believes that prevention
of DV through education is essential and if the Government is
serious about tackling the root causes of DV the necessary funding
must be found.
21. The FJC considers that
the value of DV homicide reviews in relation to their expense
needs to be monitored. The FJC supports the view taken by ACPO
in their letter to the Home Office DV Unit of 3 September 2007
(annex 3). Guidance should also be produced and disseminated as
to the role of the judiciary, subject to the agreement of the
President of the Family Division, and to other professionals,
who may be involved in them.
22. The value of perpetrators'
programmes in relation to their cost and to other needs for funding
(such as children's' play workers in refuges) should be kept under
review. Wales and the Republic of Ireland are developing perpetrators
programmes for use by the civil and family courts. In England,
perpetrators programmes are available to the family courts in
only a few areas (such as the DVIP in London). This is causing
huge problems for courts which have carried out a "finding
of fact" hearing and then need to see if the perpetrator
is capable of changing attitude and behaviour in accordance with
the guidance laid down by the Court of Appeal in the case of Re
L [2000] 2 FLR 334. If such programmes have a proven success rate
in the criminal justice system a national programme for referral
by the family courts needs to be urgently evaluated and costed.
At present perpetrators have to be referred to psychologists or
psychiatrists at great expense to the legal aid fund and the quality
of the reports provided can be variable due to a lack of specialisation
and sufficient experience in dealing with DV perpetrators. The
Children and Adoption Act 2006 will allow courts to direct a party
to proceedings to take part in a perpetrator programme. See S.11A(5)(a)(ii).
The Act had a published Impact Assessment. Early enactment of
the Act would allow this process to begin,
23. Screening programmes have
been developed and rolled out nationally in ante-natal and gynaecological
clinics and are now being extended to A and E departments. The
national advisor to the Health Service in 2006 developed national
policy and best practice guidelines on DV for the health service.
The CDNA in conjunction with ACPO produced best practice guides
for nursing and Elder Abuse. Domestic Violence and Elder Abuse
has been added to the medical school curriculum. It continues
to be felt by many in the field that General Practitioners are
lagging behind in awareness and practice in relation to DV and
this requires urgent attention.
24. The FJC Diversity Committee
will be making a separate submission in relation to Forced Marriage
and Honour Based Violence.
October 2007
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