How do the family courts tackle issues of violence and abuse?

by Sarah Phillimore

At a multi-disciplinary conference in June, The Transparency Project will launch guidance relating to issues of violence and abuse in the family court. As ever, the project does not seek to persuade others what the law should be, but rather examines what the law and practice actually is.

We have been worried for some time about the nature of the debate around this issue. It is clearly important, particularly in the field of child protection, and it is right that it provokes strong discussion.

However, we fear that debate is often clouded by misunderstandings about the limitations of the court process or misinformation – sometimes deliberate – about how the courts operate.

Polarised debate

Often the debate becomes quickly polarised as a result of such confusion – some saying that the family courts discriminate against men, others that the family courts just don’t understand the dynamics of violent relationships and do not deal with it properly or at all.

Terminology at the outset can be a huge problem, which is starkly apparent in the calls for ‘victims’ to be ‘believed’ before there is any examination of their allegations. A presumption that anyone can be defined as either ‘victim’ or ‘perpetrator’ before the fact-finding process has begun does not actually make complainants any safer and runs a serious risk that investigations may be compromised before they have even started.

If you simply believe someone is telling the truth, this must risk causing harm to the integrity of the investigation process.
We are also worried that setting complainants up to expect simply that they will be ‘believed’ is not preparing them for the demands of contested litigation should the alleged perpetrator deny the allegations. This inevitably leads to further stress and misery for all involved.

Difficult dilemmas

Of particular relevance to care proceedings is the fear, expressed by many, that mothers in violent relationships are ‘punished’ by having their children taken away. It is argued, with some force, that there isn’t enough readily-accessible help and support to help women extricate themselves from abusive relationships.

However, the other side to that argument is that children are very vulnerable to being exposed to the emotional and physical consequences of violence between their parents and some couples do seem to find it very hard to separate and keep away from one another. How do the courts try to get the balance right between protecting a child and the rights of the parent?
The starting point for all these difficult dilemmas must be clear-eyed understanding and appraisal of what the law can actually do to help.

A need for clarity

We hope that the guidance will provide a greater degree of clarity about what the law actually is and what it can realistically achieve, which will benefit all those who either rely on it or are subject to it.

We think there is an urgent need for us all to be clear about the nature of the court process and its inevitable limitations, while always being sensitive to the vulnerabilities of those who are brought or who come to court seeking solutions for their family disputes, and the need to adopt an approach which makes the court process as bearable as possible for all involved in it.

The guidance will examine the law and processes which come into play when allegations of violence or abuse are made. What evidence is needed to go before a court? How will that evidence be tested?

What approach should social work/child protection professionals take to allegations of abuse between parents who are in dispute over their children? What kind of orders can a court make to protect against abusive family members? What is behind the different standard of proof in criminal and family cases? Is the law gender specific or discriminatory?

Using the guidance as a springboard for discussion, we hope that the event in June can provide an arena for the next stage – what should the law be? Or, how can we make existing law better and be confident that the relevant practice directions are consistently applied?

It is only by communication and dialogue that we can best identify the problems and how to fix them.

Sarah Phillimore is a family law barrister and a member of The Transparency Project, a charity that aims to make the family law process clearer.