Why are domestic abusers still cross-examining their victims in the family court?

Women with her hand in front of her face

On the 18th of July, the House of Commons debated the issue of progress on protecting victims of domestic abuse in the family courts. The debate was moved by Jess Phillips, Labour MP for Birmingham Yardley.

In order to explain what the debate was about, I’m going to quote quite heavily from it, all quotes being from Mrs Phillips’ contribution.

She began by explaining that:

“There is often friction among specialist women’s organisations, the judiciary and lawyers with regard to issues to do with violence against women and girls, and the court system. Often the problem is that we do not all sing from the same hymn sheet. Every single one of the briefings, however, whether from the Magistrates’ Association, the Law Society or one of the specialist organisations makes at least one of three recommendations to Government. I will, therefore, focus on those specific recommendations and ask the Government to do something about them.”

The first recommendation relates to perpetrators being able to cross-examine victims in the family court (I mentioned this here last Friday). Mrs Phillips did not mince her words on this. Without bothering to qualify the word ‘perpetrator’ with the word ‘alleged’, she said:

“The idea that in this country—still, today, right now, in the courts—a perpetrator is cross-examining a victim of domestic abuse, perhaps in order to gain access to their children, is absolutely harrowing.”

She explained of course that:

“…the practice is a direct consequence of the changes to the legal aid regime made by the … Government”

And that:

“As a result, it is now the case that not only perpetrators but—we must not forget this—victims must act as litigants in person.”

Why victims? Isn’t legal aid still available to them? Well, not always.

She explained:

“The Minister will no doubt respond by saying that the Government have made changes to legal aid in civil and family court cases involving domestic abuse, but every single day I am notified of at least one case of domestic abuse victims not being able to access legal aid in the family court.”

And how many victims are subjected to this ‘secondary abuse’ in court?

She had this answer:

“Queen Mary University of London found that 24% of domestic violence victims who had gone through the family court system had been cross-examined by their perpetrator”

Moving on, the second recommendation relates to practice direction 12J and the new practice direction 3AA. As to the former, Mrs Phillips explained that:

“…practice direction 12J basically undoes the idea that someone who has been abusive has a right to see their children.”

Again using robust language, she explained her position thus:

“I wonder whether the Minister [i.e. Justice Minister Lucy Frazer] will join me in stressing the importance of this very simple message: “If you beat, coerce, humiliate and abuse your children’s mother, you waive your right to be their father until the moment the non-abusive parent decides otherwise.”

She qualified this, however, by explaining:

“I am not saying for one second that no one who commits domestic abuse should be able to see their children, but they should not have a right to demand to see them where the non-abusive parent does not wish those children—and the children do not wish—to be put in that situation.”

As to PD3AA, she said:

“New practice direction 3AA requires courts to consider whether those involved in family proceedings are vulnerable and, if so, whether that is likely to diminish their participation in proceedings or … the quality of their evidence.”

She asked:

“What are the Minister and the Department doing to review the use of practice direction 12J following its reaffirmation? It has been around for a long time. Can we conduct some sort of review of whether it is working or whether it needs updating, and of new practice direction 3AA? Both are key to ensuring that we can rebuild trust among victims of domestic abuse.”

Lastly, the third recommendation relates to the issue of special measures for victims of domestic abuse in the family courts, which Mrs Phillips described as “woefully behind those in criminal justice proceedings.”

In some cases, she said:

“…the same woman may present at the same courthouse—literally the same building—and be offered different things. She would most likely be greeted at the door of the criminal court by an independent domestic violence adviser co-located in that courthouse, who would have arranged different times for her and would explain the system and help her find the special area for her in the court. She may then walk around the back of the building and go through a different door into the family court, where someone may say, “Oh, there’s Larry—you can just sit next to him, regardless of the years of abuse you have suffered.”

She has an excellent point, and one that has often been raised (I recall scenarios of the above type when I was practising, and it seems little has changed in the nine years since I last entered a court building).

She went on scathingly:

“There is absolutely no excuse for the tardiness with which we have reacted to something we have known about for a long time. At least since I came to this place, we have been raising the need for separate rooms, separate arrival times and better evidence-giving opportunities, so that people do not just have a curtain around them but can give evidence from elsewhere via video link.”

Quite.

I will leave it there, but there is considerably more in the debate – the above just concentrates upon Mrs Phillips’ opening remarks, setting out the main points of the debate. If you want to read more, you can find the debate here, although I should give a word of warning: as you may have gathered from the above, it is very female-centric, with little mention of the fact that men are also victims of also victims of domestic abuse.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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24 comments

Paul Apreda - July 26, 2018 at 5:11pm

It might help those who comment on these issues to be aware of the facts.
The 24% figure quoted from research by Queen Mary College AND Women’s Aid comes from a sample of 76 women who were service users of women’s aid organisations.
A more accurate figure is the 34 INDIVIDUALS who were cross examined as ‘vulnerable’ witnesses by Litigants in Person in the Family Courts during a 3 month period on 2015. This research was undertaken by MoJ Analytical Services and involved a sample size representing an 89% response rate from Family Courts in England and Wales. The survey identified that in 124 hearings there was a possibility that a litigant in person might cross examine a vulnerable or intimidated witness.In the same period there were over 9300 applications made – which I believe means that the approximate incidence is 0.4% rather than 24%.
This research from MoJ may not be well known to Mr.Bolch for a number of reasons – not least because it recommended that the use of McKenzie Friends might be an effective way to provide help to litigants accused of DV with a means to test the evidence being presented against them.
The argument we have made to the MoJ in relation to the review of LASPO is that an allegation of abuse should trigger an eligibility to non-means tested Legal Aid fr representation in any hearing where cross examination is likely to be required. We await their response.
Incidentally the claim that it is impossible to prevent the cross examination of ‘vulnerable’ witnesses doesnt seem to stand up to the evidence of the MoJ research that found that only 34 cases proceeded to cross examination from a potential of 124 – a rate of just 27%. Presumably whatever the Court managed to do in the remaining 73% of cases prevented the cross examination!

Andrew - July 26, 2018 at 7:03pm

Of course there is a difference between the criminal and civil/family jurisdictions, and so there should be. In crime the alleged perpetrator is a party and the complainant is a witness and must be treated as one. In civil/family the two are parties and must be treated as equal participants. That means no special privileges for either.

In any event separate arrival times would gum up busy lists to the detriment of other litigants: few courts have enough consultation rooms (and if I am seeing my client in one I don’t expect to be turfed out!): there is only one drinks machine – if you are lucky – and they can both use it: the hearing is round a rectangular table where everyone can see everyone: I could go on but every practitioner will know what I am talking about, which is where they will differ from this MP, who does not. But I suppose complaining that a Member of Parliament is pontificating from ignorance is liking accusing a skunk of stinking!

spinner - July 26, 2018 at 7:21pm

Alleged “domestic abusers”. With the way legal aid is handed out to any women who even mentions the words domestic abuse but the same privilege is not granted to the man, what do you expect will happen?

Terry james Scales - July 26, 2018 at 7:32pm

I cannot believe there is ignorance at work here.
We know from empirical evidence that domestic violence is perpetrated, and this is the key word, perpetrated, equally by both sexes, and furthermore domestic violence that is non reciprocal women happen to be the offenders at twice the rate of men.
It’s clear women suffer more physical harm due to a man’s biological nature.
The issue is therefore gender less, but we know within family law it is regrettably still a gendered issue.
Are you saying Mr bolch, that a women who by allegation alone, where there is no evidence of any form of domestic violence should be given the same protection under the law as she would have in a criminal court.
This kind of draconian pathology is generally reserved for tyrannical regimes, not one that has innocence until proven guilty as its core founding principle

Terry james Scales - July 26, 2018 at 8:17pm

We’re not only victims of domestic violence equal to women, but we are entirely the victim of false domestic violence allegations.
Jess Phillips in a free country has the right to her opinions but that is all they are, they ought not to be raised to the level of fact.
My concern is we don’t give the alternative view a platform, it’s becoming increasing difficult to hear an opinion especial in the main stream media that is opposed to the ideological left..
Jess is wrong, if there’s evidence of domestic violence it would be dealt with within criminal law, the fact that it’s not is because evidence required for criminal prosecution is not sufficient.
Domestic violence is treated seriously by all political parties, law has reflected this, family court judges have sweeping draconian powers they can use against mainly men, to evict them from their home, remove them from their children’s life on allegations alone, allegations that under the scrutiny of a criminal court would compare to a sieve attempting to hold water.

Lucy Reed - July 27, 2018 at 10:32am

John,
Do please read this blog post by The Transparency Project team for consideration of the statistics referred to in this speech. http://www.transparencyproject.org.uk/exaggeration-is-not-required/
Lucy

John Bolch - July 27, 2018 at 10:50am

Hi Lucy,
I have already read it, and read it before this post was published. I did consider amending the post, but did not do so, as I was merely reporting upon what Mrs Phillips had said. I post about a huge number of things, and can’t comment upon everything!
John

Sarah SarasPSrah hillSarah imoSarah re - July 27, 2018 at 10:39am

As Ms Philips has so far failed to supply the source for her belief that 38% of men who have criminal convictions for violence get unsupervised contact with their children, I will remain wary of her polemic.

If someone has made an allegation against you, you have a right to challenge that. To assume that there are ‘victims’ and ‘abusers’ before any determination by a court or criminal conviction is to do a grave disservice to the rule of law. The problem here is not that men wish to challenge allegations against them that they don’t accept but that the Government has removed legal aid from these types of cases, thus ensuring that people are pitted against each other in these most difficult and emotionally demanding of cases.

Paul Apreda - July 27, 2018 at 2:10pm

Whilst agreeing with much of what you say Sarah I’m very clear that the ‘demise’ of Legal Aid in Private Law is grossly overstated. Our charity provides evidence letters to solicitors based upon the regulations that simply require a health professional to make a referral to a specialist DV support service for help and support for someone who is, OR IS AT RISK OF, domestic abuse. The claimant does not need to have actually experieced abuse – merely they have to be AT RISK. I’ve been unable to find a definition of ‘AT RISK’ in the regulations so I interpret that as relating to someone who is aged 16 or above, has at least one member of their biological family still living OR has at some point during their adult life been in an intimate partner relationship. I have stated this position very clearly to the MoJ on several occassions – most recently on Wednesday of this week – and have suggested that if they believe I’ve misinterpreted then they should raise that with me. To date they have not. The biggest problem we face is persuading family law solicitors to take on a Legal Aid client when they only receive a measly £54 an hour to do so.

Terry james Scales - July 27, 2018 at 5:41pm

I agree Sarah, having personal experience I can categorically say it’s a harrowing place to be in the arena that is family law courts. The fact that we use the term verses reflects the adversarial nature endemic in family law.
It’s time we radically changed the common narrative that is so destructively pervasive around marriage and divorce. We need to push back against the unholy alliance of Marxist leftist ideology and malevolent capitalism that drives family law, we can do this through education, it’s clear postmodernism has had its day , it’s doctrines fail to incorporate what modern science and history clearly demonstrates, that we are not blank slates, that we have memes that have evolved over the passage of time. Family law is extremely ambivalent in regards to human Nature, other than when it suits it’s agenda, family law is often based on pathological extremes, the 0.1% of men that commit horrific acts of family violence are all men given the right circumstances. Why else would we remove men from their homes and children on allegations with zero substance.
To be frank, it actually demonstrates the phenomenal amount of inner strength and character men that go through these catastrophic life events have.
Human evolutionary biology does not factor in that one should have to deal with bring removed from your offspring and removed from your Home.

Julie - July 27, 2018 at 4:21pm

I had to go through this. I had to sit next to the man who nearly killed me a few years ago. I had to sit there and listen to him reading the law out to me, watch him getting a legal right to continue stalking , abusing and terrorising me and my girls.
I had to watch him lie about what a wonderful father he was- even though he had shown no interest towards his daughter until the day I became strong enough to leave him.
I watched the court lap this all up- and ignore the piles of evidence of the fear his child and me had towards him.
And regardless of all the proof of him abusing his daughter when she is forced to stay with him- and all the evidence from her and her older sister of what goes on over there- I now have to force a small child out the door to stay with this violent man weeks at a time. She cries hysterically and begs not to go.
And there is nothing I can do, because the courts approve and authorise this legal abuse.
I was in no state of mind to stand up to him in court. He had brain washed me for years- making sure I had no support network or personality. I couldn’t fight him. And now he will destroy another life and no one wants to help us. It is an awful horrible process designed for the abuser to continue abuse via legal channels.
I will never be free of him- but my daughters are going to take him to court when they are 16. Hopefully he will finally pay then.

Paul Apreda - July 27, 2018 at 4:46pm

Who could remain unmoved at Julie’s powerful testimony of her personal nightmare. Your pain and that of your children is palpable. Whilst lawyers and social workers may be the professionals YOU are the expert in your own circumstances. Your testimony illustrates a number of crucial points. Firstly, that the current adversarial system of Family Justice is not fit for purpose and must be consigned to the dustbin of history. What is needed is a far more compasionate and more inquisitorial system where the parties are not encouraged to fight over the care of their children. It also illustrates the importance of trying to formulate a clear pathway for ‘What normality looks like’ as a plan for the overwhelming number of parents who dont have the kind of situation that sadly you’ve found yourself in. That would enable the finite resources of the Justice system to be re-arranged to focus much more closely on the serious cases of abuse and alienation and allow most people to simply frame the post separation arrangements for their children with a clear understanding of the ‘best interests of the child’ rather than – as currently – to be forced to make an application to the Family Court because that is the only way that the ‘paramountcy principle’ can be discovered.
Thank you for sharing your truly shocking story here. Although I deal with hundred of cases of mothers routinely flouting orders; alienating, manipulating and abusing children to turn them against their father and making false allegations to seek an advantage in the Family Court – it is important that I am reminded that there are also genuine cases like your own where men are a plague on their ex-partners and their own children. Shame on the Family Justice system for failing to support you!

Terry james Scales - July 27, 2018 at 6:13pm

I’m sorry Julie, I don’t recognise family law and how it works in the way you describe it.
From my experience, no evidence is required to stop a father from seeing his child at least not in the short term, but this short term does very often become long term.
When addressing how to reform family law, we must do so based on facts, not ideology, we must look at the causal effect of a judges rulings, we can thankfully now, from very extensive research done primarily in the USA see the disastrous outcomes in the main for children that don’t grow up with their biological parents, and catastrophic ones for those that have their father alienated from them.
Family law needs to be held accountable to the vast amount of empirical evidence, furthermore, not only does family law need to be held accountable, but so do we as individuals, children, marriage, we have agency, we chose our husbands, wives, and to have children. We require words like responsibility and sacrifice to become normative, only then may we as a society kick the state out of our personal lives.
Criminal law is quite sufficient at dealing with crime.

John Denbigh - July 27, 2018 at 8:24pm

This all ignores the fact that i) a very high percentage of allegations made in the family courts are found to be false or unfounded (see:here); ii) those who are accused of domestic abuse have not generally been convicted of or found to have committed any such abuse otherwise the problem of cross examination in fact finding hearings would not arise; iii) in the absence of representation to conduct cross examination for them, alleged abusers will be denied their right to a fair trial enshrined in A.6 ECHR and transposed into our own HRA (although certain questions can be identified in advance and put by the judge, they often need developing and it is questionable as to whether working from scripted questions alone can be effective in eliciting/testing the evidence) and iv) section 1.1(2) (c) of the Family Procedure rules provides for “dealing with a case justly”, in particular, through “ensuring that the parties are on an equal footing”.

Mr T - July 28, 2018 at 4:37am

No mention of women who falsely claim abuse, is supported by Women’s Aid then also falsely fabricate an event at a handover in an effort to further abuse male victims? Of which I hear growing accounts of on the support lines for male victims.

There is the assumption and it is apparent in the wording that this is purely men. We need to stop this incorrect assumption. Women are just as likely to abuse men they just do it more covertly. Where is the provision for this? I’ve had to sit in court multiple times while my abuser sits behind a barrister speaking on her behalf. Cross-examined as if I was the abuser when its blatantly clear from the evidence, of which the courts take absolutely no notice of, that she is the abuser.

Family courts need a massive makeover. A good start would be FACT based findings not plucking theories out of thin air and pretending they are facts. It makes a mockery of the whole biased system.

Rob Cheyne - July 29, 2018 at 8:42am

I absolutely agree – if it’s proved in a COURT! Domestic Abuse is an appalling thing but so is making false or grossly exaggerated allegations of domestic abuse. I’m shocked that legal professionals and MPs continually use the term “domestic abuser” without mentioning whether it’s an allegation, a finding of fact, a conviction or even a criminal charge. At best you hear “allegation” at some point which is then often dropped. Unless there’s a finding of fact or conviction innocent people with no access to legal representation are not being allowed to cross examine their accusers.

Perhaps worst of all is the people who make false allegations of domestic abuse (incentivised with it’s accompanying support from a variety of charities, free legal representation, access to social housing and even rights to remain for illegal immigrants worth thousands of pounds) are themselves the abusers.

The massive variation in non-molestation applications in different areas demonstrates it’s not based on incidents but solicitors and other groups driving the requests. Was there a huge jump in domestic violence after legal aid was withdrawn or were solicitors and women’s groups using one of the few opportunities available for obtaining legal aid for their customers?

I’ve worked with way too many men who are being damaged by the ridiculous current system. And too many men, themselves victims of domestic abuse, who receive no support.

The legal profession and the judiciary need to get into the 21st century and accept that women as well as men will be violent and use any means necessary, even those to support victims, to obtain what they want.

JKG - August 1, 2018 at 11:20am

Jess Phillips? I would rather save my comments for better day.

JKG - August 1, 2018 at 12:00pm

Jess Phillips? is that the woman who was friend with the MP (Jo Cox)who was killed by a sick and disturbed man in Leeds? I understand that Jess Phillips was also a friend of the husband of Jo Cox, Brendan Cox. The same Brendan Cox who was working for a charity and allegedly said to have abused women and subsequently resigned from his role.
Right, this leads me to the following: Do I smell some hypocrisy here again? Perhaps…
Now Jess Phillips is standing is the House of Common speaking about domestic abuse. Go figure; I wonder whether this woman is just merely using the DV agenda to broaden her platform as a politician or whether she really cares about women genuine victims of DV. The use of abrasive language and elasticity of evidence might be a clue to her mindset; who knows. I for one should be forgiven to think these people (Politicians, lawyers and Judges) really suck when they use statistics (especially the politicians) to embellish their messages and gain public attention. Let face it, the issue of DV is becoming it seems a vote catcher segment for a parliamentary career; however cynical it may sounds to people, but the reality that the establishment does not really care about what happen to the future of these children who are OFTEN used as pawns between two SADLY OFTEN “irresponsible” adults ( by the very nature of the way they would often behave towards one another for their personal motives) who are unable to figure out the best way forward to work out their difference without letting their ego take front seat.
As long as the same pattern of behaviour continues, there will always be lawyers, judges and politicians making a good living and career out of the very sad issue of Domestic Violence. Just like people make a career or a living out of poverty, DV appears to be a battle horse for MP like Jess Philips to get herself noticed. In case no one has ever noticed Jess Phillips only cares about Jess Phillips. For I have read the report Sarah referred to in her comment and it perfectly illustrates my scepticism about the true motives of Ms Philips and quite frankly she too, sucks. Her intervention on this occasion is a disservice to women (and also men most probably to a less extend and yet so often falsely accused) who suffer a great deal as a result of DV. I would have thought that in this post truth world, Ms Philips should have known better, but hey it seems I was wrong.

Stitchedup - August 2, 2018 at 1:46pm

DV has indeed been used as a vote catcher by many politicians, it’s an easy bandwagon that many choose to jump on to look like they’re actually doing something, being progressive and taking some sort of moral high ground. The real truth is the whole DV agenda has now become regressive and massively damaging to families, especially children. Women are actively encouraged to interpret the slightest domestic disagreement as abuse, relationships and families are torn apart as a result. Rather than encouraging families to resolve their differences and weather the storm, lawyers and women’s organisations fuel the fire, often encouraging police involvement. More often than not this simply wipes out any hope of differenced being resolved and family relationships being saved, the preferred course of action appears to be the total destruction of a previously loving family. In cases where separation is inevitable, it wipes out any hope of an amicable separation. There will be no such thing as no fault divorce or separation as long as this destructive ideology exists… Feminism is antifamily and all about blaming men… End of.

Julie - August 3, 2018 at 2:00pm

It is due to the ignorant views of people like yourself that victims of domestic violence feel they have to suffer in silence.
Only a person who has NO IDEA what it is like to like with a violent psychopath that is an abusive partner could make such comments as ‘loving family unit’ and ‘repairing indifferences by talking’.
As a survivor of domestic violence I can assure you there is no talking to a psychopath like this. The only way for him is his way, he doesn’t see he is doing anything wrong by beating the living daylights out of his partner and children- it is all their fault after all and they were asking for it.
A man like this will stalk you, take you to court time after time over nothing, abuse your children when given access only to hurt you- because that is the only way left. He will threaten you with taking your child from you- he will mess with your mind do much you lose yourself all together.
He will have hundreds of friends and will charm the judge with just the right things to say- because he is charming in public. Only to call you later or whisper to you on the way out of court how he is going to make sure I will never be free of him as long as I live.
So I would suggest such ignorant people like yourself wouldn’t post their stupid comments on issues they have no experience on.

Paul Apreda - August 3, 2018 at 2:55pm

Hi Julie – I completely understand your comments. As a specialist DV support service our charity hears a large number of probelsm such as you describe. We strongly support the view that women should not have to suffer the ‘abuse’ of a former partner taking them back to Court time after time – as Women’s Aid have so powerfully stated on many occassions. I’m confident that when you used personal pronounsreferring to him being the abuser and you being the victim that was because this is the reality for your own experience. We tend to see (because of the nature of our charity) far more men who are victims of abuse – often in the way that you describe. It is important therefore that we recognise the gendered nature of domestic violence and abuse and by doing so properly understand how we can support both men as well as women who face abuse. Minimising of the experience of survivors – whether male or female – is rightly unacceptable

Stitchedup - August 3, 2018 at 2:50pm

My views are far from ignorant Julie, I’ve been through the whole charade with my ex and have a conviction as a result. I’m sorry to hear what you’ve been through but I’m also sorry to say you are yourself displaying total ignorance to the FACT that false allegations of domestic abuse do happen all too frequently. Men find themselves entering the criminal justice system through the back door for actions that would not normally be considered unreasonable let alone criminal. The actions you describe are also typical of vexatious women that set out to destroy men and alienate them from their children. Our common enemy here are the women that make false allegations, the lawyers and women’s organisations that encourage them, and men that commit genuine acts of domestic violence. However I have to say I believe the definition of domestic abuse is now absurdly broad and actually trivialises genuine acts of physical domestic violence but lumping everything in together…

Stitchedup - August 3, 2018 at 3:30pm

I have to come back to some other comments you’ve made. I find it cynical to the extreme that you see fit to deride the idea that previously loving couples/families can resolve their differences by talking whether via mediation or counselling via support groups such as relate and marriage guidance organisations. I think you’ll find an abundance of opinion that differs from yours.

Terry james Scales - August 4, 2018 at 11:07pm

Stitched up. Julie’s case is not canonical and family law is not corrupt, corruption implies that at one time family law was a benevolent necessary arbiter of very difficult circumstances brought about by the separation and divorce of two people who had gone to extreme lengths to sustain their marriage, but had no alternative but to end their marriage.
Family law is predicated on ideology, this ideology detests the family unit, the family unit is a patriarchal, oppressive, abusive prison for women, that women can never be free while the proclivity of Marriage is a societal norm.
This pathology is omnipresent within family law, it’s why we have non molestation orders, occupation orders, and child restrictive orders. Judges are fully signed up members to this leftist ideology, it’s why they hand out these orders without a second thought to the empirical evidence that clearly demonstrates the catastrophic outcomes that children and fathers suffer.
Family law is also subjected to the malevolence of greed, divorce is big business, the unholy alliance of cultural Marxism and morally corrupt capitalism (neoliberalism) permeates through the courts, lawyers, judges, barristers all benefit from the hell that is divorce.

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