There are continuing concerns around how the family court system recognises and responds to allegations of, and proven harm to children and victim parents in private law children proceedings.
The Ministry of Justice has responded to a consultation on ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases,’ and said that despite the legal framework set out in the Children Act 1989 requiring the court to give paramount consideration to the welfare of the child, evidence submitted to the consultation demonstrates continuing concerns around the family court system.
“Whilst the panel has identified some good practice and widespread good intentions from those working under increasing pressure within the family justice system, it has also unveiled deep-seated and systematic issues that were found to affect how risk to both children and adults is identified and managed,” said the report.
Respondents raised concerns about how family courts address domestic abuse and child sexual abuse in private law children proceedings. There was a feeling that abuse is systematically minimised, ranging from children’s voices not being heard, allegations being ignored, dismissed or disbelieved, to inadequate assessment of risk, traumatic court processes, perceived unsafe child arrangements, and abusers exercising continued control through repeat litigation and the threat of repeat litigation.
The panel found these issues were underpinned by the following key themes:
• Resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
• Respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
• Submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
• Parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self-representation, with little or no involvement of the child.
Children go unheard
In general, victims faced a number of barriers to raising domestic abuse including the pro-contact culture of the courts and professionals involved in child arrangement cases and silo working which could result in evidence of abuse being accepted in one system, for example the criminal courts, but not being acknowledged or effectively engaged with in the family court. Victims also reported difficulties evidencing abuse, particularly where there was a focus on single incidents or recent physical abuse. There are particular barriers for victims of BAME backgrounds in raising domestic abuse with victims and the professionals supporting them perceiving these barriers as involving racism, in addition to sexism and class prejudice.
The report also highlighted that the evidence from both research and submissions suggested that too often the voices of children go unheard or are muted in various ways where domestic abuse was raised. A large proportion of children have no direct involvement in the family court process, with parents or carers being relied upon to represent their views.
- Limited time - it was reported that professionals have limited time, and where consultation does take place, this is usually brief.
- Lack of follow up - submissions noted that children are rarely consulted once an order has been made; often leaving them with arrangements that may not work effectively or safely.
- Lack of resources - inhibiting the extent to which children are involved in proceedings.
- Pro-contact culture - a process of ‘selective listening’ was identified whereby children who wish to have contact with their non-resident parent are heard but those who do not wish to have contact are not heard or pressured to change their views.
- Silo working - courts often failed to engage effectively with organisations that had established strong relationships with a child and may have a more in-depth knowledge of their individual circumstances.
- Complexity - properly understanding and representing a child’s views could be difficult, with children often being subject to a variety of influences, some of which can be contradictory.
“Evidence suggested that there are significant negative impacts to children being unheard during proceedings. Children can be left feeling let down or suspicious of authorities, and trust in the court system can be eroded due to a child’s negative experiences,” said the report.
Practice Direction 12J (PD12J) of the Family Procedure Rules 2010 provides detailed guidelines on the actions a court is required to take following allegations of domestic abuse in a child arrangements case. However, evidence raised concerns that PD12J is not operating as intended and is being implemented inconsistently.
Again, resources, silo-working and the pro contact culture were highlighted as contributing to this as well as the adversarial process and the conduct of fact-finding hearings and perceptions of fairness.
Furthermore, the report identifies that regardless of the outcome of the case, victims generally reported not feeling safe at court and the evidence submitted suggested that they often found that the court proceedings themselves had been re-traumatising.
Many respondents noted that proceedings in the family court were often not accompanied by the adequate provision of special measures, leaving victims vulnerable to intimidation and physical attack. They also stated that their psychological wellbeing is not being properly addressed. The impact on litigants in person has been identified as particularly acute with regard to safety and security, as they lack knowledge of the available measures and the rules which provide for them, and are without legal advice which would otherwise alert them of their rights to special measures. A victim may face the prospect of being cross-examined by their abuser, in cases where an abuser is representing themselves, or of having to cross-examine their abuser where they are themselves a litigant in person.
In terms of the orders made, many of the previously highlighted issues came into effect at this stage too. Parents who had alleged abuse as part of proceedings and professionals supporting them reported that in most cases some form of direct contact was still likely to be ordered and where interventions such as domestic abuse perpetrator programmes (DAPPs) and supervised contact services were made, they were seen as stepping stones to direct contact.
Regardless of the particular circumstances, even where the most serious allegations of domestic abuse were raised, courts expected that parents would work together to facilitate contact arrangements. Victims of abuse also feel pressured to agree to consent orders, even when they do not consider them to be safe. Review hearings, which might provide a check on the workability and safety of orders, are discouraged and rarely take place.
“Despite PD12J, respondents felt there was little difference in the orders made between cases that did and did not feature domestic abuse. The courts almost always ordered some form of contact, frequently unrestricted, and usually without requiring an alleged abuser to address their behaviour,” said the report.
Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many respondents felt that the level of abuse they and their children experienced worsened following proceedings in the family court. Many respondents felt that negative long-term impacts to children’s wellbeing from continued contact with an abusive parent vastly outweighed the value of an ongoing relationship with that parent.
The report states that the four themes identified as barriers to the family court’s ability to respond consistently and effectively to domestic abuse and other serious offences are:
* The court’s pro-contact culture
• The adversarial system
• Resource limitations affecting all aspects of private law proceedings
• The way the family court works in silo, lacking coordination with other courts and organisations dealing with domestic abuse.
The basic design principles for private law children’s proceedings should be:
• A culture of safety and protection from harm
• An approach which is investigative and problem solving
• Resources which are sufficient and used more productively
• With a more coordinated approach between different parts of the system.
• Procedures need to be designed with the needs of children, litigants in person and domestic abuse and other serious safeguarding concerns as central considerations.
The report urges an urgent review of the presumption of parental involvement in s.1(2A) of the Children Act 1989 in order to address its detrimental effects. Family courts should pilot and deliver a reformed Child Arrangements Programme in private law children cases, that is safety-focused, trauma aware and takes a problem-solving approach.
The panel recommends that the range of options for hearing from children, together with advocacy, representation and support for children be explored more fully. The provisions in the Domestic Abuse Bill concerning special measures in criminal courts for victims of domestic abuse should be extended to family courts. The Bill should also be amended to bar direct cross-examination in any family proceedings in which there is evidence of domestic abuse, or in which domestic abuse is the subject of proceedings.
The panel recommends additional investment in a number of areas in conjunction with proposed revisions to the Child Arrangements Programme. It adds that there should be a review of the current provision of DAPPs to ensure they are effectively focussed on reducing harm for children and families affected by domestic abuse, and are anchored in the underlying design principles recommended by the panel.
The panel recommends a wide range of training for all participants in the family justice system. A national monitoring team should be established within the office of the Domestic Abuse Commissioner to maintain oversight of and report regularly on the family courts’ performance in protecting children and victims from domestic abuse and other risks of harm in private law children’s proceedings, the report concludes.
Assessing Risk of Harm to Children and Parents in Private Law Children Cases Final Report