The Family Courts are failing domestic abuse survivors

In July, Nicole Jacobs, the Domestic Abuse Commissioner, released her report on the need for change in the way domestic abuse is understood and dealt with in the Family Court system, entitled “The Family Court and domestic abuse: achieving cultural change”.

In the 77-page document, Ms Jacobs set out how survivors of domestic abuse feel that they are retraumatised by the system, with one person quoted as saying that the trauma from going through the system was worse than that of the abusive relationship itself. This is not just a view held by survivors, with the majority of legal professionals surveyed also agreeing that the system retraumatised victims.

A number of recommendations arise from the report, namely: establishing the Monitoring mechanism recommended by the Harm Panel Report; appointing an HMCTS Domestic Abuse Best Practice Lead in each area; rolling out the pathfinder courts nationally; the provision of training and building upon existing understanding; giving every survivor access to a Domestic Abuse Support Worker; properly and appropriately resourcing the QLR scheme; establishing a stricter definition of psychologists; removing means testing for Legal Aid for all victims and survivors of domestic abuse and carrying out a review into legal aid fee schemes to combat the rise of legal aid deserts and lack of appropriate legal representation due to inadequate remuneration.

Whilst I fully agree with the recommendations of the Domestic Abuse Commissioner, and particularly her comments about the QLR scheme and Legal Aid, in my view we should actually go further on this. Certainly, the means test for Legal Aid for those raising allegations of domestic abuse should be abolished to ensure that they are able to obtain the vital support that comes from a legal representative when navigating the Family Court system, and I would endorse an increase in remuneration so that experienced and suitably qualified practitioners can continue to engage in this field of work. However, I would argue that rather than simply providing better funding for the QLR scheme, full and properly remunerated Legal Aid should in fact be brought back for alleged perpetrators of domestic violence.

Whilst this might seem counter-intuitive at first glance, this would greatly benefit domestic abuse victims and survivors by hugely reducing the trauma that going through the court system currently presents. First, it is no secret (and is indeed acknowledged in the report) that perpetrators can use child arrangements and the family court system to perpetuate abuse against their victims. This can take many forms: spurious and malicious applications; harassment; inappropriate involvement of children in the abuse and court proceedings, such as alienation of children by the perpetrator against the abused parent, and so on.

Currently, those accused of domestic violence act as litigants-in-person for the majority of a case, whether against their victim as another litigant-in-person, or against the victim’s solicitor. Where they do not, there is often a power imbalance as they are paying privately for their solicitor, who is not then subject to the duties owed to the Legal Aid Agency regarding the making of applications that have little chance of success. Dealing with such behaviour is deeply unpleasant for survivors and is an important part of why the process can be so traumatising. The ideological thinking behind the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was that an increase in the use of mediation would lead to a consequent reduction in the number of court cases brought, but mediation is evidently not suitable in domestic violence cases.

By re-introducing Legal Aid for alleged perpetrators and remunerating this properly so that both sides can have experienced legal representation, the scope for this kind of behaviour within proceedings is massively reduced. Ongoing issues can be dealt with through lawyers, and perpetrators will receive strong legal advice regarding the appropriateness of their behaviour, meaning that victims and survivors, and most importantly their children, are far better shielded from this.

Secondly, the reintroduction of Legal Aid for alleged perpetrators would have a substantial effect in reducing court delay. Since the Covid pandemic delays on court cases have gone up and up, with an average private law children case lasting 45 weeks on average in September 2022, with 53,000 cases awaiting conclusion[1]. Many courts are listing longer hearings a year in advance, and there is anecdotal evidence of many of those hearings then being vacated at the last minute due to judicial unavailability, with the adjourned hearing again being listed months in advance. The impact of this court delay is that those who have managed to escape abusive situations are then subjected to the stress and further opportunities for abuse to be perpetuated that long-running proceedings cause. This is particularly worrying given the massive increase in domestic abuse rates during the pandemic[2] and the consequent increase in family cases before the courts that involve allegations of domestic abuse.

Aside from the increase in the number of cases before the courts, when one or both parties in the case are not represented, there is a much higher need for judicial case management and less effective compliance with court directions, leading to not only more hearings on a case but also those hearings lasting longer, which has a knock-on effect for other cases. This was in fact one of the outcomes of LASPO that practitioners warned against prior to its enactment. By reintroducing Legal Aid for both sides, effective legal advice at an early opportunity would reduce case rates by decreasing the number of spurious applications made, as well as helping cases to be dealt with more effectively and resolved more quickly. This would mean less need for judicial case management and more effective (i.e., fewer) hearings, opening up court time for other cases and reducing the backlog.

Written by Charlotte Image-Flower, senior associate at Dawson Cornwell