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Domestic Abuse and the Family Court

Posted on November 21st 2019

A recent article published in the Law Society Gazette, has highlighted how difficult it is to resolve cases where there are allegations of Domestic Abuse. According to recent research allegations of Domestic Abuse are made in more than half of cases heard by the family court in England and Wales, approximately 60% in fact. Sir Andrew McFarlane, the current president of the Family Division, states that the reason for this is often because it is one parent’s word against the other. Where courts have to rely on independent evidence, from a third party e.g, the police, you often have to wait many months for it, which causes delays in proceedings. Sir Andrew McFarlane believes that the ability of the court needs to be increased to enable them to get information from the police and other agencies. However with many of these establishments being under resourced and overstretched this is not always an easy task.

With such delays, this means that the alleged perpetrator may not be having contact with a child during that time, until the court can determine the allegations within a fact finding hearing. This can have a detrimental effect on the child’s relationship with the alleged perpetrator, going forward. Conversely, it could mean a child continuing to have contact with an alleged perpetrator and potentially putting them at risk of harm.

Sir McFarlane hoped that improvements could be made to the courts, however there are various problems that arise in these types of proceedings. One of the challenges is that the alleged perpetrator is often unrepresented as they won’t be eligible for legal aid like the victim may be. This can often cause difficulties in court hearings particularly when issues regarding contact are being considered. Another difficultly is that decisions are being made by benches of lay magistrates, where there is a lack of expertise in dealing with these matters. More training is required to try and improve this.

Earlier this year, the Ministry of Justice invited court users to say how well they thought that the family courts were protecting children from abusive parents. There was more than 1,200 responses received. 63% representing mother and 17% on behalf of fathers. When surveyed to comment on how victims felt their experience of the family court process had been, it was highlighted that they felt “degraded” and “re-traumatised”. Concerns were also raised about how the family court “prioritised the child’s relationship with the non-resident parent over the welfare of the child and the risks to the which this could expose the child and other parent”.

It is clear that the courts need help to manage all of these issues whilst ensuring that at the forefront is what is in the child’s best interests. Arguably any contact with a parent however limited is in the child’s best interests so long as it is safe and properly managed. However it has to be acknowledged that children who are either the victim of or who have witnessed domestic abuse are extremely vulnerable and it is imperative that they are protected by the courts and are given all the help and support that they need to ensure the best opportunity for their future relationships.

 

 

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