Flaws in the family courts system have not been fixed. Until they are, victims will continue to be failed
British courts are renowned around the world, for the quality of the lawyers, for the impartiality of the judges, for their fairness and rigour. But speak to people involved in the family courts in England and Wales, and it quickly becomes apparent there are some serious problems.
Take the case of one woman, a survivor of domestic abuse. A criminal court had found her abuser guilty of assault and battery, and placed an indefinite restraining order on him. But her abuser got the order varied in the family courts, without her knowledge – in a hearing she was not even party to. He has now taken her to court 26 times since 2015. In effect, he has used the family courts as a venue for continuing his abuse.
Or the recent high-profile case where a family court judge concluded that because a survivor of domestic abuse had “taken no physical steps” to stop an assault, it “did not constitute rape”. His verdict was overturned on appeal – but for too many victims, attitudes like this are a serious barrier to justice.
Last year the Ministry of Justice established an expert panel to review the family courts. Their findings were published in June 2020, and confirmed what survivors and practitioners had been saying for years: that there were serious, systemic issues in the family courts.
The review confirmed that abusers were continuing their abuse through family courts, and that the courts were not spotting this or stopping it. It said that the processes which currently exist to protect survivors of abuse from being harassed through the courts fail to help the vast majority. And it found serious, damning evidence of the negative impact of a “pro-contact culture” in the courts which ignores or dismisses abuse and places children and survivors at risk of serious harm.
Almost one year on from the review, far too little progress has been made
A plan was drawn up to implement the review’s recommendations and address the failings it identified. Some of the steps taken in the Domestic Abuse Act, which received royal assent in April, are very welcome – in particular, strengthening barring orders and banning cross-examination of victims by perpetrators. But almost one year on from the review, far too little progress has been made.
Much more needs to be done to reverse the pro-contact culture which creates the context for abusive behaviour. Despite the extensive evidence that was gathered by last year’s review, and the clear recommendations it made, progress is painfully slow.
The government is reviewing the law, and has promised to pilot two new approaches to domestic abuse cases (one which gives families the same judge across different court jurisdictions, and another which will introduce a more inquisitive, less combative approach), but these pilots have not yet begun.
The Implementation Plan also pointed to more training as a key requirement. The government and the judiciary have both voiced their support for improved training – pushed by members of the House of Lords – but it is not yet clear what the training will involve, who will deliver it or who will receive it.
It needs to be reformed, in co-operation with experts in domestic abuse, as soon as possible – and everyone working in the family courts needs to receive it.
There are many excellent magistrates, judges and lawyers working in the family courts, striving every day to do their best. The cases they hear are challenging, complex and emotional. But as the Harm Panel Review found, the system they are working in is seriously flawed. One year on, that still has not been fixed. Until it is, victims will continue to be failed.
Baroness Helić is a Conservative peer