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Kirsty Morbey – associate solicitor in our Family team – discusses the proposed Family Court reforms to address domestic violence and contact

A recent campaign by the charity Women’s Aid to highlight the potential danger of allowing violent fathers to have contact with their children, has now received the support of Senior Family Court Judges.

Women’s Aid has identified that 19 children have been killed in the last 10 years by violent fathers who have been awarded contact with their children by the Family Courts.

Consequently, Senior Family Court Judges are now proposing reforms to the system, which will end the overriding presumption in favour of an absent parent having contact to their child, when there is evidence of domestic abuse. This could put the safety of the child or mother at risk.

The reforms were announced on Friday 20th January following a series of meetings between Women’s Aid and the Senior Family Judiciary.  The charity was also due to take its findings in a report to Downing Street on Monday 23rd January.

The key reforms proposed highlighted the need for the Family Judiciary to be given further training on domestic abuse issues, to ensure that it is able to act when required in order to protect vulnerable women and children.

The changes will also address the very controversial issue of perpetrators of domestic abuse being allowed to cross examine their victims during family law cases. Such a practice is already banned in the criminal courts, but continues on a regular basis in the family courts. There has been a sharp increase in recent years following the majority abolition of Legal Aid and the rise in participants representing themselves in family law cases.

Evidence has been uncovered showing that men with criminal convictions for abusing their former partners have been permitted to repeatedly question them during Family Court cases and that even the most violent and abusive men, many of whom are convicted rapists, were still permitted to pursue contact with their children. This has then wreaked devastation on the victims and survivors of domestic abuse as it has prevented them from being able to move forward.  Many of the women cross-examined have described the experience as ‘torture’.  One extreme example saw a convicted murderer apply for residence of his child from prison.  During the proceedings he was permitted to cross-examine the sister of the woman he had murdered (his child’s mother) including questioning her right to parent his child.

Sir James Munby, President of the Family Court Division, has been outspoken in his support for the ban on direct cross-examination and the House of Commons was informed in early January by Justice Ministers that the wheels are now in motion to introduce the primary legislation required to make the change.

The Family Judiciary is seeking to change the guidance provided to all family judges in the practice direction.  This currently supports a presumption of “contact at all costs”, whereby the burden of proof is on the residential parent to prove why contact should not take place, as opposed to the parent seeking contact having to demonstrate why it should.  Under the new guidance, this principle would be scrapped and excluded from cases involving domestic violence, where the involvement of the absent parent in the child’s life, would put the child or other parent at risk of harm.

It is now being recognised that in effect, the current system is being used by perpetrators of domestic violence to continue their abuse, by continuing to exert a coercive and controlling influence over the victim and perpetrate harassment. However, there needs to be better understanding of the new offence of coercion (“controlling or coercive behavior in an intimate or family relationship”) which was introduced in the Serious Crime Act 2015 and which came into force in December 2015.  This will need to be dealt with by better training of the appropriate judges.

Unfortunately, there is still a  lack of understanding of the enormity of this issue, which is demonstrated by how the mere act of attending Court can put the victim at risk of assault by their former partner due to a lack of appropriate safety measures.

Women’s Aid has found that 39% of victims suffered assault by their former partner at court and many women spoke of being followed, stalked, harassed and further traumatised after leaving court. Consequently, the proposals also suggest that the courts must carefully consider the waiting arrangements before a hearing and arrangements for entering and leaving court, together with the possibility of video link evidence.  Unfortunately, these measures are dictated by available resources, which will ultimately fall to the Ministry of Justice to ensure that proper funding is in place to provide the safety measures.

The Senior Family Judiciary has urged all Family Court Judges to adopt the amended practice direction without delay, and it is hoped that it will also be quickly agreed by the Ministry of Justice.

It is felt that the Family Courts have fallen far behind the Criminal Courts in properly addressing this issue, which has been perpetuated by the blanket presumption in favour of contact.  Clearly, this is something that cannot be allowed to continue, but there is now great hope and optimism that proper steps are now in place.

For more information on Kirsty and her work, please click HERE.

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