(United Kingdom, 06/25/2020) – A recent report that investigated the handling of domestic abuse cases involved in the UK’s family court system results in “sweeping reforms” after significant problems are revealed. The UK is now publicly acknowledging that the family court system is, in fact, deeply flawed and often fails victims of domestic abuse and their children.
The family court is often used as a battleground for an abusive and/or dysfunctional parent to further harass, intimidate, control and even gain revenge on a former partner through manipulation or misuse of legal proceedings. Yet one person alone does not represent an entire legal system. Abuse can only be escalated, and enabled through the legal and social service system if the system itself is complicit. The family court and it’s professionals – judges, Guardian ad Litems (or Cafcass), ADRs, attorneys, social services, etc – all play a critical role in the operation of the court system, and their views and opinions shape the outcomes of custody rulings and the dispension of justice. In both the UK and in the US, there have been decades of complaints from litigants and their children involved in family court proceedings. While this report focuses on domestic abuse cases, it is notable that even in families where abuse is not an issue, the same types of issues are often present. There is a pattern. Parents report their rights are being violated in family court, and they are losing custody of children without just cause or due process. There are countless complaints of an abusive or otherwise unfit parent gaining primary custody while the protective parent loses custody and is forcibly separated from the children. Complaints of parents becoming bankrupt and driven into poverty by the high cost of legal proceedings, especially when court drags on for years, are also common. Abuse of legal proceedings has become deeply embedded into the practice of family law, and has become as normal as filing a motion.
In situations of domestic abuse the failures and injustice present in the family court system create a continuation of abuse, and in some case, can be lethal – resulting in death of parents and children. Many victims of domestic violence, involved in the family court feel equally as abused by their former partner as they do by the family court system itself. There are widespread complaints concerning: domestic violence is ignored or dismissed, victims are told to stay silent about abuse, domestic violence victims are punished for reporting safety concerns and the courts are placing children in unsafe custody situations (giving perpetrators custody or unsupervised visitation).
Reform is urgently needed…not only in the U.K. but also in the U.S. The recent report, and recommendations from the UK offer valuable insight, and testimony, that is relevant to other family court jurisdictions, globally. This report voices similar concerns and systemic barriers existing in family court that are being report in the U.S.; and have resulted in injustice and inflicted harm on families and children. This report can be used to better understand problems within the family’s courts handling of domestic abuse cases, and can be used to support reform efforts and provide solutions to other courts and professionals. Or can be used to complement or provide expert opinion for studies, audits and examinations of the family court system.
Reform has been promised but very little has changed in family court…until now as the UK and it’s Ministry of Justice directly confront problems existing in family court and are working to implement new procedures and policies. Not only is the legal process undergoing change but also the tone or environment in the court system itself changing, to become more knowledgeable and aware of abuse, and more diligent in protecting litigants involved in proceedings. These reform efforts are ground breaking in that they send a message to victims of domestic abuse and their children involved in family court proceedings… you are heard, your concerns are being taken seriously and the courts will work to protect you.
On June 25, 2020, the Ministry of Justice announced “major overhaul” in family court to better protect victims of domestic abuse, and their children, who are involved in legal proceedings. The move came after a recent expert report revealed the court system is traumatizing and endangering the lives of domestic abuse victims.
“Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many submissions detailed the long-term impacts of this abuse manifesting in physical, emotional, psychological, financial and educational harm and harm to children’s current and future relationships…” (p. 9)
The changes resulted after an expert-led review conducted on the court’s handling of domestic abuse related cases revealed significant problems and custody orders that endangered the lives of children. The experts handling the review included representatives from charities, the judiciary, family law practitioners and academia, and considered the views of more than 1,200 individuals and organizations.
Cafcass – the UK’s version of the Guardian ad Litem program, and the largest employer of social workers – was not invited to give input. Cafcass responded that, “Cafcass was not invited to be a member of the Panel and we do not agree that the criticisms in the report reflect our current practice. But our task now is to learn from this feedback and to work collaboratively with families and specialist organisations to provide support that is considered more effective and which clearly promotes the safety and welfare of children at all times…” Cafcass argues that problems existing in the family court system are caused by a lack of funding and a lack of training. A publicly issued statement promised to do better by the children they serve. Visit this link to read the statement in full and be sure, also, to read comments from members of the public responding to comments from Cafcass and offering input: https://www.cafcass.gov.uk/2020/06/25/cafcass-responds-to-the-publication-of-the-report-from-the-ministry-of-justice-expert-panel-on-harm-in-the-family-courts/
The review raised concerns that victims and their children were not being adequately protected in the legal process, and were being put an unnecessary risk. The review found that the adversarial process in the family courts often escalated conflict between parents, which could re-traumatize victims and their children. It is important to note that findings were directed at the environment of the family court, and it’s procedures as contributing to increased conflict between parents and did not simply blame parties.
Victim testimony was also heard. “Submissions highlighted a feeling that abuse is systematically minimised, ranging from children’s voices not being heard, allegations being ignored, dismissed or disbelieved, to inadequate assessment of risk, traumatic court processes, perceived unsafe child arrangements, and abusers exercising continued control through repeat litigation and the threat of repeat litigation…” (p. 5)
The stories included in the report are truly disturbing. One included a mother who’s former husband was jailed for raping her and also was abusing their child. The criminal proceedings determined this man was dangerous yet she felt “the family court seemed to bend over backwards trying to accommodate his bid to get to see the children”. The case dragged on for over 5 years and racked up massive legal bills.
Another victim reported that she and her children became homeless after escaping abuse. The perpetrator sought full custody, stating that because mother is homeless that she cannot properly care for her children. The family court judge agreed and gave the perpetrator primary custody. The victim then returned to the abuser because she could not bear to leave her children in a home that she knows is unsafe.
A child who gave testimony said they were put into harm’s way due to the custody order issued by the family court. The child endured abuse for 7 years, described the father as “violent” and said “he threw a punch at me”. The child witnessed the father beating his girlfriend, and heard the father threaten to kill his mother and “take every penny from her”. The child reported that he felt “very scared”. The child was left in this abusive situation with no protection from the family court.
Another issue examined (p. 62-63) in the report from both victims and from legal professionals is that victims of abuse are often discouraged from talking about the abuse they experienced or discouraged from reporting safety concerns because “it would anger the courts” and it will hurt their case.
Mothers are frequently told they are lying when they report abuse, and falsely accused of parental alienation. Other mothers lose custody as a result of reporting abuse. The fear of falsely being accused of parental alienation has also kept some women from reporting abuse. Similarly, children often do not report abuse for the same reason. “Children may not dare to speak to their mother about what has happened during contact because it could be used against her in court to demonstrate ‘implacable hostility’ or ‘alienation’. Consequently, children suffering ongoing abuse through contact are left isolated…” (p. 156)
Another problem discussed is that the “experts” who diagnose “alienation” are not always credible, and often do not undergo evaluation by the court to determine their validity.
The review offered recommendations to improve the family court process in cases involving domestic abuse that will become part of a Implementation Plan that to enact the reforms and measure their progress.
Stronger powers for judges to prevent abusers repeatedly dragging a victim back to court (legal abuse). A commitment to change the provision on ‘barring orders’, which prevent abusers repeatedly dragging ex-partners back to court over child custody arrangements. Ministers will review whether this is best done through legislative or non-legislative means.
An Integrated Domestic Abuse Courts will be created as part of a pilot project. This specific type of court will consider family and criminal matters involving domestic abuse in a parallel to provide more consistent support for victims. Emphasis will be placed on getting to the root of an issue and ensuring all parties are safe and able to provide evidence on an equal footing – without the re-traumatizing effects of being in court with an abusive ex-partner.
As part of the Integrated Domestic Abuse Courts, there will be a trial to use a problem-solving approach in private family law proceedings. This could mean that judges decide what evidence to investigate, rather than both parties presenting their cases against each other. Meaning family law hearings will focus on specific issues to be resolved by the courts. (In the US this is referred to as a “Brief Focused Assessment”).
Ministers will launch a review into the presumption of ‘parental involvement’ that often encourages a child’s relationship with both parents, unless the involvement of that parent would put the child at risk. It will examine whether the right balance is being struck between the risk of harm to children and victims, and the right of the child to have a relationship with both parents.
Giving automatic entitlement for special measures in the courtroom for victims of domestic abuse going through the family courts – such as separate waiting rooms, entrances and screens – via a further amendment to the Domestic Abuse Bill.
(Side Note: I would recommend that the Domestic Abuse Bill includes language and provisions that a victim cannot face reprimand or lose custody of children because they use these special measures. This has actually happened in the family courts in the US. In my case specifically, I was reprimanded by the family law judge and Guardian ad Litem for enrolling in the Safe at Home Program and told participation means “I am keeping secrets” and not “co-parenting” with the abuser. As a result of my enrollment, the Guardian ad Litem recommended sole custody to the abuser, which the judge granted. So participating in a program designed to protect abuse victims from harm was used against me in family court that awarded sole custody of the victimized children to the identified perpetrator of abuse.)
Inviting the Domestic Abuse Commissioner and Victims’ Commissioner to monitor and report on private family law proceedings involving victims of domestic abuse to ensure compliance with the recommended reforms, and to monitor progress.
Justice Minister Alex Chalk commented about the review, “Every day the family courts see some of the most vulnerable in society and we have a duty to ensure they are protected and not put in danger. This report lays bare many hard truths about long-standing failings, but we are determined to drive the fundamental change necessary to keep victims and their children safe. But this is not all we’re doing. Our landmark Domestic Abuse Bill will transform society’s response to this destructive crime – protecting victims and pursuing perpetrators more than ever before.”