Report on Family Courts: stereotyping and risk

“The findings of this research are deeply concerning and require urgent attention from both the judiciary and the legal profession.”

Women’s Aid and Queen Mary University of London have released a new report on domestic abuse, human rights and child contact cases in the family courts.

The report, ‘“What about my right not to be abused?” Domestic abuse, human rights and the family courts’, collected quantitative and qualitative data from 72 women living in England on their experiences of the family courts which confirms and builds on findings from existing research in this area.

And survivors of domestic abuse have revealed their experience of systematic gender discrimination within the family courts that is putting children’s safety at risk.

The report uncovered a prevalence of damaging gendered stereotypes and harmful attitudes towards domestic abuse survivors and mothers in the family courts, putting survivors and their children’s safety at risk and preventing them from accessing justice.

Women’s Aid is now calling for the government to commission an independent inquiry into the family courts.

Survivors reported that they were repeatedly not believed, were blamed for experiencing abuse and were seen as unstable by judges, barristers and officers of the Children and Family Court Advisory and Support Service (Cafcass).

Almost half of the survivors (48 per cent) reported that there was no fact-finding into the allegations of domestic abuse in their case.

And one survivor reported that her abusive ex-partner was able to cross-examine her about her sexual history during child contact proceedings.

In January 2016 Women’s Aid launched the Child First campaign, calling on the family courts and the government to put the safety of children back at the heart of all contact decisions made by the family court judiciary.

Since then there has been some progress made, as seen by the revision of Practice Direction 12J, the guidance given to family court judges in child contact cases where there is an allegation of domestic abuse, and a government commitment to ban the practice of abusers cross-examining victims in the family courts.

Yet this new report shows that there continues to be a lack of protections within the family courts for survivors of domestic abuse.

One quarter of survivors (24 per cent) surveyed reported that they had been cross-examined by their abusive ex-partner during the court hearings, and three in five survivors (61 per cent) reported that there were no special measures – for example, separate waiting rooms, different entry/exit times, screen or video link – in place in the court despite allegations of domestic abuse in their case.

This although the absence of measures to protect survivors from abuse during the court process harms their ability to give evidence and prevents them from effectively advocating for their children in court.

The report also revealed a clear link between survivors’ experience of domestic abuse, including coercive control and post-separation abuse, and risks to children’s wellbeing and safety.

Over two thirds of survivors (69 per cent) reported that their abusive ex-partner had also been emotionally abusive towards their child(ren), while almost two in five survivors (38 per cent) reported that their abusive ex-partner had also been physically abusive towards their child(ren).

Yet in the cases in the sample unsupervised contact with an abusive parent was most likely to be awarded.

This reinforced findings from a recent report by Cafcass and Women’s Aid which revealed that unsupervised contact was ordered at the final hearing in almost two in five cases where there was an allegation of domestic abuse (39 per cent).

In the most extreme cases, contact decisions threatened survivors and their children’s human right to life when contact orders placed them in unsafe proximity to abusive ex-partners or confidential information about their address or location was revealed during the court process.

Survivors’ lack of access to a fair hearing is clearly putting children’s wellbeing and safety at risk.

Katie Ghose, chief executive of Women’s Aid, said: “For far too long, survivors have endured continued abuse at the hands of their abuser in the family courts. Enough is enough.

“We want to shine a light on what is really going on behind the closed doors of the family courts, and call time on the injustice being done to survivors of domestic abuse and their children.

“We know that perpetrators of domestic abuse are using the family courts to continue to control and abuse victims, and that the sexist attitudes entrenched within the family courts are enabling that abuse. That’s why we are calling on the government to commission an independent inquiry into the family courts to review the culture, practice and outcomes in child contact cases where there is an allegation of domestic abuse.

“Only a wholesale review of the family courts can bring about the change we need to see to ensure that they operate safely, effectively and fairly in future,” she continued.

“It is a matter of urgency that the government bans the unacceptable practice of the cross-examination of victims by abusers – survivors have been waiting over a year since the government committed to bring this legislation forward.

“We also want to see compulsory and ongoing training for all professionals – from judges and solicitors through to court support staff and Cafcass officers – on domestic abuse co-delivered by specialists like Women’s Aid.

“This must cover coercive control, post-separation abuse and how children experience domestic abuse so that all professionals can identify and understand domestic abuse to effectively safeguard children and non-abusive parents throughout the court process.

“We’re calling time’s up on a family court system that is not just, we’re calling time’s up on a family court system that does not take allegations of domestic abuse seriously, we’re calling time’s up on a family court system that shows attitudes of deep-rooted gender discrimination.

“We want a family courts system where survivors can access justice free from abuse and for children’s safety to be put at the heart of all decisions made by the family courts.”

And Professor Shazia Choudhry, Professor of Law at Queen Mary University of London, said: “When the Human Rights Act was passed in 1998 it was heralded as an opportunity to ‘bring rights home’’ in order for British citizens to argue for their human rights in British courts.

“What this exploratory research has demonstrated is that this has not been the case for a number of women survivors of domestic abuse in the family courts.

“This research indicates that the human rights of these survivors to their family life and to be free from discrimination are not being given sufficient effect in the domestic family courts.

“Moreover, there is evidence of the family courts failing in their responsibility to prevent and investigate acts of violence towards these survivors and facilitating or failing to challenge a climate of gender discrimination within the courtroom.

“The findings of this research are deeply concerning and requires urgent attention from both the judiciary and the legal profession.”