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Domestic abuse victims' treatment in family courts

View profile for Lucy Birch
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Over 120 MPs from various political parties have written to the Government requesting an inquiry into how the family courts in England and Wales treat victims of domestic abuse in court proceedings. This is a very important area which has been the subject of much debate between family law practitioners for some time now.

In particular, concerns have been raised regarding court decisions allowing children to spend unsupervised time with abusive parents and, in general, the lack of transparency in the family courts. There has been a number of cases in recent years in which children have tragically been killed by an abusive parent following a court decision allowing them to have unsupervised contact. MPs hope to achieve an independent inquiry "to establish the extent of the problem and if more fundamental reform is required".

In all applications made under the Children Act, the child’s welfare is the court’s “paramount consideration”. There is a presumption that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. However, where there is evidence of domestic abuse, the courts are bound by the law to consider the potential harm to the child and this outweighs any presumption of parental involvement.

Supervised contact can be ordered in cases where the court feels that due to a “safeguarding” reason, such as domestic abuse, physical abuse, substance abuse or previous criminal convictions, the contact with that parent should be overseen by either a family member/friend or by a professional in a contact centre if necessary. The court in these cases has the difficult job of balancing any potential risk of harm to the child against the child’s right to have a relationship with that parent.

Professionals working within the court system, such as CAFCASS (the Children and Family Court Advisory and Support Service), the Police, Social Services etc. are of course encouraged to work together with the Judiciary to spot the warning signs and highlight domestic abuse or neglect at the very earliest opportunity to ensure that children are protected from harm.

The family court has sought to address this issue in a number of ways. Firstly, by introducing Practice Direction 12J in October 2017. This direction essentially sets out what the court is required to do in any case in which it is alleged or admitted, or there is another reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse. This sets out prescribed guidance as to how courts are to approach cases of this nature, however, it appears that this does not go far enough.

In addition, earlier this year the Government published the Domestic Abuse Bill which notably prohibits abusers from being able to cross-examine their victims in court, amongst other provisions which seek to protect domestic abuse victims throughout the court process.

HM Courts & Tribunals Service has also recently piloted video technology for cases where there has been domestic violence and the victim is seeking an injunction against their ex-partner. This has been acknowledged as successful as the victims have found the very daunting and stressful proceedings that bit easier by not having to attend court in person.

It is therefore clear that the courts have attempted to address these issues, however, there is no surprise that there are calls for more to be done to protect children in these types of cases.

If you require further advice regarding domestic abuse or if you have any concerns regarding child arrangements, please do not hesitate to contact us. Our divorce and separation lawyers offer a free, no obligation 15 minute chat.

I am a family lawyer based in our Colchester office and can be contacted on 01206 217378 or lucy.birch@birkettlong.co.uk. Alternatively, you can complete our online enquiry form.

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