Behind the closed doors of family courts. 

Are family courts protecting domestic abuse victims?

 

According to the office for national statistics, 2.3 million adults experienced domestic abuse in 2020. A family court is one of the legal institutions that domestic abuse survivors can turn to for help. The purpose of family courts is to listen to each part of the parents' case and to put the welfare of any child involved, first. Due to this welfare concern, their proceedings are carried out away from the public eye. However, could this secrecy of family courts mean that the, sometimes overlooked, victims of domestic abuse feel mistreated? 

 

Domestic abuse is a difficult crime to tackle, due to the amount of domestic abuse that stays unreported. Many victims fear the consequences of their abusive partner being reported. Family courts provide the safety that domestic abuse victims so desperately need. They give domestic abuse victims the hope of bringing their abuser to justice.

 

However, the impact of family courts on domestic abuse victims can only be told by one who has suffered such an ordeal.  

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Charlotte Bud, a domestic abuse survivor went to a family court when her drunk abusive ex physically attacked her. Charlotte describes her experience of family courts as “horrible and traumatic”. She felt that her lack of knowledge about the law was taken advantage of.

 

“The magistrates were rude and lacked empathy but they also failed to look at the evidence. The whole thing was so biased…on most occasions, they wouldn’t read my statements but would read his. They gave him access with no accountability for his actions, no drug testing even though he had been caught for using heroin and needles.”  

 

Although Charlotte wasn’t able to appeal the judge's decisions, in January 2021 four mothers were able to appeal against family court judges’ orders. The mother’s claimed that these judges diminished their allegations of domestic abuse. This combined court appeal was the first reassessment of family courts implementation of domestic abuse laws, in twenty years. 

 

One of these mothers appealed decisions made by judge Robin Tolson. This was after he made no findings of serious domestic abuse, despite being given evidence of non-consensual sex, being slapped when heavily pregnant and coercive control. 

 

One reason for Judge Tolson’s views could be due to family courts' implementation of coercive control. As Rachael Grey, a doctoral researcher studying family courts and domestic abuse explained, “family courts focus on physical violence rather than emotional psychological financial abuse.” 

 

The definition of domestic abuse was amended in 2017, to include incidents of controlling, coercive or threatening behavior, to ensure that all types of domestic abuse are covered. 

 

However, due to the proceedings of family courts, the impact of coercive behavior on the victim isn’t clearly expressed. In family courts, victims have to outline each allegation of domestic abuse in a ‘Scott schedule’.The accused then has the opportunity to respond to the allegation. Once all the evidence has been weighed with the allegations, the court decides if the claim of domestic abuse has been proven. 

 

The problem with the Scott schedules is, analyzing each allegation of coercive control, might not show the true impact of coercive control on the victim. Explaining the significance of this Racheal gray points out: “We are still looking at an incident model of domestic abuse rather than a pattern of behavior” This reform, of looking at patterns of behavior, rather than just incidents, Racheal believes is essential in helping family courts manage incidents of coercive control.    

 

The joint appeal case report also found the barrier of Scott schedules in domestic abuse cases: “Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid.” 

 

In another appeal case, Judge Tolson claimed that a mother could not have been raped as she took “no physical steps” to stop the alleged perpetrator. 

 

Speaking about Judge Tolson's comments, Rachael Grey said: “it shows a poor recognition of domestic abuse.” Although these comments were extreme, it represents a view that many judges hold. Racheal believes it shows the need for a cultural shift in our understanding of domestic abuse, as societal views do: “influence on judges decisions as well.”

 

One societal norm Racheal believes needs to change is the tendency for agencies, designed to support victims, not believe them: “so when a survivor gets to family court she is probably already exhausted by a system that hasn’t believed her.”

 

Charlotte Bud also went to the police, hoping to get reassurance after being abused: “The police took 3 weeks to make an arrest. I gave them so much evidence but they failed to investigate and even ask me the right questions.”

 

Charlotte was not alone in feeling neglected by the police. A study by Women's aid found that 74% of domestic abuse victims reported their abuse to the police but the perpetrator was not charged.

 

Charlotte feels that the “ archaic, misogynistic and pro contact culture” in family courts, doesn’t help domestic abuse victims. The pro-contact culture is the view of family courts, that both parents should have contact with children. Sarah Hill is the CEO of IDAS, a charity that provides support to survivors. Speaking about the impact of contact culture in family courts, she says: “this contact happens even where one parent is clearly an abuser and the child does not want contact which means that victims can experience re-victimisation and further trauma when a family court is involved.”

 

The Harm report published in 2020, also mentioned the trauma for both the child and parent involved due to the ‘contact culture’ in family courts. The report recommended the use of risk assessments from domestic abuse organizations before deciding about contact. The report also recommends that there should be “sufficient and appropriate” safeguards in place so that women can voice any concerns they have about their children or their safety.

 

Charlotte believes, to ensure the protection of victims, “ We need to stop the secrecy of family courts…to hold judges and magistrates accountable.”  

 

Sarah agrees that: “There certainly needs to be accountability and a clearer and easier complaints procedure.” However, Sarah also feels that it’s not appropriate to make proceedings of family courts public: “Given the sensitive nature of the cases overseen in the courts.” 

 

Racheal feels that many changes need to be implemented for family courts to be more effective in their role as an arbitrator between the two parents. For example, Racheal mentions the “lack of diversity in the judiciary.” According to statistics by the courts and tribunals judiciary, just eight out of 38 courts of appeals judges and 21 out of 106 high court judges are women. The overall percentage of female judges across the courts is 25%. Only 5.9% of these judges come from a black, Asian or minority ethnic background.  

 

Lord Sumption predicted that it could take up to 50 years to achieve a diverse judiciary. According to Rachel, a more diverse judiciary is paramount for family courts to provide the support required for domestic abuse victims, and genuinely fair proceedings. 

 

Racheal holds the view that no matter what changes are brought in family courts: “it’s always going to be daunting, particularly for domestic abuse victims, who have: “come out of one aggressive system and, going into another”. 

 

Racheal also feels that family courts need a “less adversarial” or confrontational view of domestic abuse cases. Instead, Racheal believes there should be a trauma-focused view of victims going to family courts, to better support them.  

 

However, Racheal acknowledges the need for family courts to provide the support available to survivors especially when so many survivors, like Charlotte, are representing themselves: “survivors need to understand what special measures are available for them and be able to apply them to their proceedings.”

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A report by the domestic abuse commissioner found that:” The provision of Legal Aid should be extended where domestic abuse is a factor.” The report mentioned that the financial issues that many survivors face, makes legal aid inaccessible to the majority of survivors, leaving them at further risk from abuse and emotional harm.

 

Explaining the financial pressure she felt from family courts, Charlotte said: “I had to do my cross-examination by myself, while my ex could afford a solicitor. He never paid child maintenance properly while I had no money and was raising a baby on my own.”

 

However, true reform of family courts can only be achieved through changes to societal views on domestic abuse.    

 

For example, Racheal feels that the topic of domestic abuse has to be brought more into our everyday conversations: “It's always been seen as a private matter but it's not a private matter it's a public matter and we need to start having conversations around it rather than try to hide it.”

 

Sarah also feels that although changes can be made in family courts: “Misogyny, victim blaming and gender stereotyping has created a culture in which sexual violence and domestic abuse thrives.”