‘Antiquated’ approach to domestic abuse damaging survivors and children says Domestic Abuse Commissioner

The Domestic Abuse Commissioner for England and Wales has taken aim at what is described as ‘antiquated’ thinking amongst some of the legal profession when it comes to domestic abuse cases and the courts. 

The comments come from a comprehensive report into the way domestic abuse is dealt with in the family justice system published by the commissioner following extensive research into nearly 300 child arrangement case files, live observations of nearly 100 case hearings, focus groups with domestic abuse survivors and interviews with judges, magistrates and Cafcass/Cafcass Cymru officers. The research provides ‘unprecedented insight into the workings of the family justice system which has, until now, never been comprehensively collected.’

Entitled ‘Everyday business’ the report says domestic abuse is an every day occurrence within the family justice system with evidence of abuse within 73% of hearings it observed and in 87% of the case files it reviewed as part of research informing the report. However, despite this prevalence, the report says domestic abuse was frequently not recognised as an ‘active issue’ or taken seriously.

‘Everyday business’ picks up on the work of the 2020 Ministry of Justice (MoJ) report, ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ which has become known as the ‘Harm Panel’ report. The Harm Panel report identified four ‘structural barriers’ which ‘impede responsive processes and safe outcomes in child arrangements proceedings’ in family courts; a pro-contact culture, adversarialism, resource constraints and silo working.

But five years later recommendations made in the Harm Panel report remain ‘unfulfilled’ said Dame Nicole Jacobs, Domestic Abuse Commissioner for England and Wales, calling for urgent action to better protect adult and child victims.

The report explores how survivors are dissuaded from raising allegations of domestic abuse due to the suggestion that it would have ‘no impact’ on whether the abusive parent would be granted contact. Others said they felt pressured into accepting potentially unsafe child arrangement orders out of fear that if they contested, an even worse outcome would be granted. A  ‘pro-contact culture and dismissive attitudes towards victim-survivors’ are contributing to decisions that may be putting children’s safety at significant risk said Jacobs.

There was further evidence of survivors unable to qualify for representation due to the evidence required to prove they are at serious risk, and the legal aid means test, despite legal aid funding for cases involving domestic abuse. Stories of trying to pull cases together and not completing forms correctly left survivors feeling ‘like a rabbit in headlights’.

Outdated and ‘antiquated’ views ‘amongst some legal professionals’ was also a concern, with coercive and controlling behaviour frequently dismissed said the report leaving survivors feeling unheard, unsupported, and unprotected.

There are bright spots said the report. Some judges, magistrates, solicitors, domestic abuse services and Cafcass staff are ‘working tirelessly under heavy workloads’ to shield survivors from further harm, with trauma-informed approaches to proceedings highlighted, including the use of protective screens to shield survivors from their abuser and limiting access to information that could be used by the perpetrator.

Commenting on the report Domestic Abuse Commissioner, Dame Nicole Jacobs, said:

“For too long now the Family Court has failed to adequately rise to the challenge of recognising domestic abuse within its proceedings and take sufficient steps to address the serious impact this is having on adult and child victims.

“No child should be forced to spend time with an abusive parent or caregiver if the circumstances aren’t safe for them to do so. But time and time again we see how the pro-contact culture and antiquated views on domestic abuse are contributing to decisions that put children in harm’s way. This must stop.

“It’s clear that domestic abuse can no longer be considered a side issue within the family justice system but instead its everyday business that demands a rigorous response.

“To better protect survivors and deliver the reform promised, ministers must commit to a fully funded national roll out of Pathfinder Courts and the removal of the presumption of parental contact to ensure decisions are taken in the best interest of children.

“The government must also provide the necessary investment to extend the pilot study conducted by my office, to allow for rigorous oversight on the changes being made and ensure accountability from within the Family Court. Tinkering around the edges will no longer suffice.”

Professor Mandy Burton, from Loughborough University, said:

“This new research demonstrates that responding appropriately to domestic abuse, particularly coercive and controlling behaviour, continues to be challenging for the family justice system, exposing victims to risk of continuing harm. For the first time, the research identifies the scale of the risk, showing conclusively that domestic abuse is the ‘everyday business’ of the family courts.”

Professor Rosemary Hunter, from Loughborough University, added:

“It is imperative that the review mechanism piloted in this study be continued, in order to maintain accountability, track progress (including the progress made by Pathfinder courts) and disseminate good practices, so that professionals working in the family justice system can better protect children and adult survivors through safer processes and child arrangements orders.”

With the UK government having set an ambitious target to halve violence against women and girls (VAWG) within a decade, the Commissioner is warning that urgent reform will be essential if the family justice system is to play its part in safeguarding victims and supporting the government to achieve this priority. She is urging ministers to publish the long-awaited VAWG strategy so that this vital work can begin.

Responding to the report, Harriet Donovan, family partner at Keystone Law said the report reflected what many family professionals see on a daily basis.

“Allegations of domestic abuse arise in the majority of children cases, yet the family justice system still struggles to identify, prioritise, and respond to them effectively. Too often, victims are left to navigate a long, complex, and intimidating process without legal representation, while perpetrators, sometimes with greater financial means, are able to challenge and prolong proceedings.

“Fact-finding hearings, which are essential to determining whether abuse has occurred, can take months or even sometimes years to conclude, leaving victims and children in limbo and sometimes resulting in unsafe contact arrangements due to the fear of time being lost with that parent. There also remains a worrying culture of minimising coercive and controlling behaviour, which can be just as damaging as physical violence.

“If we are to truly protect victims and children, the system must move beyond its entrenched ‘pro-contact’ mindset and ensure that safety, not parental access, is the guiding principle in every decision, while offering support to victims.”

The full report is available on the Domestic Abuse Commissioner’s website.