Why are domestic abusers still cross-examining their victims in the family court?
By:24 commentsJuly 26, 2018
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”
“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.
“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.”
“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.”
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.