Domestic Abuse Bill

Written evidence submitted by the London Victims' Commissioner (DAB85)

Summary

In my role as London Victims’ Commissioner, I am regularly contacted by survivors of domestic abuse who have experienced further trauma and abuse whilst in the Family Court system with most survivors saying that proceedings feel like ‘state sanctioned abuse’. There are clear themes of the courts failing to recognise domestic abuse in its various forms, wider forms of abuse such as stalking and harassment, and allowing courts to become a forum for continued harassment, unwanted contact, abuse and re-victimisation.

The number of cases brought to me regarding unsafe decision making in the Family Courts prompted me to call for a full, independent inquiry into the way family courts managed cases involving domestic abuse and other VAWG in child arrangement cases. While this inquiry was not granted, the government has conducted a short review of the operation of the courts. We are awaiting the full findings of this review and it is a clearly missed opportunity that such important findings are not available for consideration and translation into amendments during Committee Stage of the Bill.

Much of this evidence I present is anecdotal, due to the restrictive nature of the information and evidence that is available about Family Court proceedings. Whilst this degree of privacy is meant to maintain confidentiality and protect rights of those involved in cases, particularly children, it leaves survivors feeling isolated, silenced and unsupported in understanding how their case fits into wider patterns of failings. They also have very few routes to hold decisions to account as privacy prevents independent scrutiny.

This lack of transparency and accountability around decision making has led to total stagnation of policy development and safeguarding and has given perpetrators easy access to their victims by allowing them to use this ‘secret’ environment to continue unwanted contact.

The Domestic Abuse Bill offers an opportunity to properly tackle the systemic issues in the courts. Below I have outlined a number of policy recommendations that should be included in the Bill to bring about this much needed change.

Policy recommendations currently not in the Bill

1. Additional safeguards, such as risk assessments, needed around the banning of cross-examination - especially in cases where orders or convictions are spent.

2. Create a presumption of no contact or parental responsibility where there has been a conviction, restraining order, findings by the Family Court. This could be rebutted & overturned in exceptional circumstances, but a risk assessment must be conducted first

3. Protect the safety of refuge addresses

4. Prohibit unsupervised contact for a parent who is subject to a Restraining Order, Non-Molestation Order or Protective Order against the other parent. When the order is spent, a risk assessment must be conducted to ensure the safety of victim and children

5. The expansion of Independent Domestic Violence Advocate (or equivalent) provision to support and give advice to victims throughout the process

6. DA Court Coordinators in all courts to advise on cases where there is an indication of DA & related behaviours

7. Mandatory training on the nuances, complexities and impact of domestic abuse and related behaviours (including coercive control, harassment and false allegations of parental alienation) and associated trauma for Judiciary, CAFCASS and all those working in the Family Court

8. Specialist in court to recognise and restrict vexatious complaints. To facilitate this, place a duty on all court jurisdictions to cooperate and share information when the same victim is involved.

9. Non-means tested legal aid should be made available for domestic abuse cases, to ensure all victims have access to suitable representation and their legal rights are safeguarded.

10. Amend Family Procedure Rules to mandate that Judges provide information on appeals - including grounds, timeframe and deadlines - at the end of each judgement. This should also include information on any support services available to help with such appeals

11. Ensure that application for recusal, for instance on grounds that Judges display bias through a lack of understanding of domestic abuse, are made directly to another Judge instead of to the Judge that is being asked to be recused

12. I previously called for a full, independent inquiry into the way family courts managed cases involving domestic abuse and other VAWG in child arrangement cases. While I do not want to pre-empt the findings of the current government review, I remain of the belief that a more representative inquiry is urgently needed.

1. Issues with the Family Courts and domestic abuse

"[The court made us feel] Like we didn’t matter, and we didn’t nor does the safety of my children and myself. Our voices aren’t heard. Lives do not matter. In the worst cases we know parents and children die."

1.1 For many years, victims and practitioners with experience of the Family Courts have been highlighting the failure of the courts to properly identify domestic abuse. This failure leads to judgements which put survivors and their children at risk, for example through unsafe child contact arrangements with perpetrators.

1.2 The recent High Court appeal decision (JH V MF [2020] EWHC 86 (Fam)) of a judgement made by Judge Tolson exemplified the issues that survivors of domestic abuse face. The case shone an overdue spotlight on systemic issues, where there is a lack of understanding of domestic and sexual abuse and associated behaviours.

1.3 In this case, the Judge had concluded that because a survivor of domestic abuse had "taken no physical steps" to stop an assault, it "did not constitute rape". On appeal, his judgement was found to be ‘so flawed as to require a retrial’. Specifically, the views on consent expressed by Judge Tolson were found to be "manifestly at odds with current jurisprudence, concomitant sexual behaviour and which is currently acceptable socio-sexual conduct." Moreover, he was found to have failed to consider or appreciate the concepts and reality of domestic abuse, control and coercion "and the fact that such abuse is not confined to physical violence".

1.4 Although this appeal was successful, no review was conducted of recent decisions made by the Judge to ensure that other survivors had not been similarly denied justice. There was no pause in the Judge hearing cases involving the same issues. Importantly, I do not believe the issue is limited to one Judge. Following media coverage of the above case, numerous domestic abuse survivors got in touch with me to share similar experiences of domestic abuse being misunderstood or dismissed by the courts. Training on domestic abuse and related behaviours such as stalking and harassment, sexual assault, rape myths and the impact of trauma should be made mandatory for all Judges in the Family Court [Recommendation 7].

"There seems to be a theory within the family courts who operate under the secrecy act that if there are no bruises then there is no abuse – when actually most abuse is emotional and psychological.

The Judge who represented me around child contact threatened me with prison and community service and referred to me as the girl who cried wolf. He had firm evidence of my ex-husbands history, police reports, social services evidence, children’s wishes and feelings, school reports and chose to stick to a framework that guaranteed access to his children, when their own wishes and feelings were ignored."

1.5 While training is an important first step towards change, more must be done to support and safeguard victims of domestic abuse in the Family Courts, so they do not feel at risk nor are re-traumatised through court proceedings. We must ensure that victims have access to Special Measures and the support of an Independent Sexual or Domestic Violence Advocate [Recommendation 5], if they wish. Importantly, the use of such safety and support measures must not be interpreted by Judges as pre-judicial. This was a widespread attitude in the criminal courts, but thankfully we have seen significant progress in recent years with Judiciary recognising the value of such measures in achieving justice. It is imperative that we are able to give the same protection to those accessing the Family Courts.

"In court, I was shocked and traumatised to find that not only was I cross examined for 5 hours, the barrister was allowed to gaslight me throughout, and won her main argument that I had used the support from Women’s Aid to make up a reason for stopping contact with my son.

The judge seemed to have no understanding of coercive control, and his judgement was extremely harsh against me, saying I had lied about many incidents and agreeing that I had used support from Women’s Aid to invent a story of domestic abuse."

1.6 Changes to the provision of Legal Aid have also placed victims at greater risk, as the courts are now faced with a much larger number of litigants in person. Victims in this situation are at a distinct disadvantage in court, which can lead to the making of Child Arrangement Orders that are unsafe, inappropriate and unsuitable. Additionally, victims are almost wholly unaware of any meaningful mechanism for reviewing, appealing or challenging decisions that are made. Accountability mechanisms are incredibly important, especially in a forum shrouded in such secrecy. Information on the appeals process, including the grounds upon which an appeal can be made, time frame for appeal and specific deadlines for each case should be made readily accessible [Recommendation 10]. Additionally, non-means tested legal aid should be made available for DA cases [Recommendation 9].

2. Preventing the courts becoming a forum for harassment and abuse

"My case has not been about justice but simply an extension of the crime. Abuse is abuse and it should not be belittled, downgraded or categorised and the actions should not be generalised."

2.1 I have significant concerns that the Family Courts are being used as a platform to further unwanted contact and abuse by perpetrators. Most worryingly, I have seen numerous cases where victims of stalking are protected in the criminal courts from their ex-abusive partner by a Restraining Order as they are deemed high risk and have moved to a safe location. However, due to the ex-partners applying for Child Arrangement Orders, or making vexatious claims against them, the victims are forced to instruct solicitors and see their stalkers in court which breaches the criminal order and causes most to fear that they may be followed from court, revealing their safe locations.

"This has almost destroyed me. All because I left domestic abuse and my former partner who is also the father to our twins and didn’t look back. I went to the police and I was ignored. Hestia urged me to keep going back but I realised in the end it was pointless. 6 months later I got a Non-Molestation Order on an ex-parte basis with Hestia support. He paid just under £10k to contest it at his hearing listed for 5 minutes. It was suspended in favour of undertakings and transferred to child arrangement proceedings. Everything I sought to avoid."

2.2 The growing evidence we have on record highlights the state of disconnect between the civil, criminal and family court systems, preventing a co-ordinated response which means these gaps are being exploited by perpetrators. It shows us how much training is needed so that the Police, CPS and Judiciary start to recognise this legal abuse and how a joined-up approach between the courts and other agencies to provide early intervention is key if we are to safeguard victims from ongoing trauma and financial loss.

"The five years in family court facilitated my stalker’s obsession has had a devastating impact on me. Family court is supposed to protect children yet it ignored the restraining order put in place to protect us, it disregarded my stalkers crimes and used the effects this trauma had on me against me. My experience of family court felt like torture and because of family court I live in fear."

2.3 Currently the proposals in the Bill to end cross-examination of victims by perpetrators include some concerning loopholes that appear to misunderstand the nature of abuse and trauma and which ultimately undermine the restrictions being introduced.

2.4 Firstly, the restriction on cross-examination does not apply if the caution or conviction is spent. Given that convictions such as Restraining Orders are commonly granted for a period of a year or 18 months, the Bill is only really providing short-term protection. Perpetrators will be able to wait until a caution or conviction is spent and then pursue proceedings in the Family Courts, with a right to cross-examine. Such short-term protections entirely misunderstand the nature of domestic abuse and other types of fixated behaviours. In such scenarios, a risk assessment should be conducted to ensure that cross-examination is safe and acceptable [Recommendation 1].

2.5 The second loophole is that there is no penalty or consequence for cross-examinations that are allowed to take place when the court should have known of a conviction, caution or charge but did not. In outlining this eventuality, the Bill acknowledges the likelihood that this situation may arise. For those working in the courts system, such a situation is not a hypothetical but is almost an inevitability. Poor communication and collaboration between jurisdictions already exists and judgements made in the criminal courts, as evidenced by Restraining Orders being routinely overlooked. As such, there must be a duty on courts to share relevant information across jurisdictions, to ensure no victims are put at risk of trauma or unnecessary prohibited cross-examination [Recommendation 8]. DA Court Coordinators could also facilitate the sharing of this information and identify the need for a risk assessment mentioned above [Recommendation 6].

"[My children’s] futures are disappearing down the toilet. It is difficult to deal with and painful to watch. Everything you value about life, Justice and the UK has been damaged by the dysfunction in Family Courts and court assessors"

2.6 Training on the nuances and complexities of domestic abuse and trauma should be mandatory for all Judges, CAFCASS, social workers and those working in the Family Court system [Recommendation 7]. This will have a raft of positive impacts, but on this point specifically it will enable Judges to understand and identify the circumstances where cross-examination should be restricted, but where there has not been a caution or conviction.

"[The courts ordered] that I disclose my address to my perpetrator… Disclose my address to someone who had abused me and still was trying to scare and control my life, someone who had entered my last home without my consent, someone who had come into my last home and taken swords, a knife and guns that he kept hidden (ignored by the Police) and photographed extensively every room in the house so that he could monitor if I was ‘stealing or damaging or removing any items’ – handovers were never agreed to take place at my home so why then was I ordered to let my perpetrator know where I lived if it didn’t affect his contact with the boys?"

3. Protection of refuges

3.1 Refuge accommodation is a central part of the national policy response to domestic abuse

and provides a lifeline for many survivors. As such it is deeply troubling that recent judgements from the Family Court have seriously undermined the refuge model.

3.2 In a recent High Court decision, a father applied without notice for a location order in April 2020 to locate the address of the mother and the children. The mother was residing in a refuge in a confidential location for the safety of herself and her children. The refuge was ordered by the High Court to reveal the address of the refuge where the mother and children were living. The alleged perpetrator had claimed to the court that when his wife had fled to the refuge, she had abducted their children.

3.3 This is the second such order this refuge provider has received in the past 6 months in very similar circumstances. In the first case in late 2019, the court ordered the refuge to disclose the mother and child’s address, the father located the mother and the child, continued to stalk and harass her and in a matter of weeks, abducted the child to another country.

3.4 Such orders fundamentally undermine the well-established refuge model, which is predicated on protecting survivors through the absolute secrecy of the safe address. In making such an order, the safety of the survivor and children were put at risk, as was the safety of all the other inhabitants of the refuge and the staff who are already at high risk of abuse.

3.5 Legislative and policy change is urgently needed. Refuge addresses should never be disclosed, not even to the court, and only the office address should be used to effect service on the mother. The refuge can confirm that they have served any court orders upon the mother. The court will be aware that the mother is residing in a refuge; the court does not need the refuge’s residential accommodation address. This is putting everyone concerned at serious risk of danger and irreparable harm, which the court would be responsible for. [Recommendation 3].

June 2020

 

Prepared 18th June 2020