A sea-change in sight for private family law children cases involving domestic abuse
In June 2020, the Ministry of Justice’s (MoJ’s) expert panel report, Assessing risk of harm to children and parents in private law children cases: final report
, concluded a deep dig – nine months of intensive research into the private family law system: why it’s broken and why, more importantly, children and victims of abuse are being failed by it. The report is far-reaching, possibly even revolutionary, save for the fact that is its findings have been known to those working at the sharp end for decades. Nonetheless, it heralds a new era optimism for victims of abuse and all of us working in the sector.
The panel identified four significant barriers to an appropriate response to domestic abuse that permeate every part of the system:
The cuts to legal aid introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, alongside those to the court estate, police budgets, children’s services budgets and funding for-front line abuse services, have meant that there is less of everything that is essential to make the system work. In particular, the closure and sale of courts, reduction in sitting days and cuts to court staff numbers have meant that space in the court diary has become a precious commodity to be preserved for the most complex and significant cases. Inevitably, cases involving children being removed from their natal families and into the care system have had to take precedence, with private family law cases having to take up what time is left over, which is not enough by a significant margin.
2.Domestic abuse being minimised by those in the system or ignored completely and written off as irrelevant or historical
This has led to the Family Procedure Rules 2010 Practice Direction 12J being effectively irrelevant in the vast majority of cases. If it is not properly recognised and its impact (whether immediate or historic) being expertly assessed at the earliest stage, then the practice direction becomes meaningless, and victims’ experiences and the impact that they have had on their well-being and that of their children, is ignored.
When 1 and 2 are in place, then a pro-contact culture is almost inevitable. If there is not time to investigate properly, at any point in the process, then it is likely, the report states, that the experiences of the victims will be minimised, and it becomes easy to see how a narrative evolves that the mother is ‘just being difficult’ or that ‘they both just need to move on for the children’s sake’, or, in the worst cases, that the mother is ‘deliberately alienating the children’ as opposed to trying to protect herself and them from further abuse.
This recognises the fact that, with resources being so stretched, different parts of the protective system are working in isolation from each other, and that vital information about or evidence of abuse and its impact that is held by one element is failing to be made available to the others. The conclusion is reached that significant decisions are made without essential evidence regarding safeguarding and risk being shared, placing children and non-abusing parties at risk.
These barriers have been recognised by the MoJ and we are about to see a root-and-branch culture change as the implementation plan has already been approved. This was immediately noticeable in the recently reported case of R v P (Children: Similar Fact Evidence)  EWCA Civ 1088
A full-length article on the report and implementation plan will appear in the November 2020 issue of Legal Action.