Doing more harm than good? MOJ report highlights failings in the Family Justice System

Posted: 12/11/2020

A final report has been published by the Ministry of Justice as to how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children.

The title of the report “Assessing Risk of Harm to Children and Parents in Private Law Children Cases”, provides an indication as to the authors’ findings. It draws on over 1,200 responses from individuals and organisations across England and Wales as well as evidence gathered from round table discussions and focus groups with parents, children and professionals.

The report uncovers deep-seated and systematic issues affecting how risk to both children and adults is identified and managed by the courts. These include (amongst others):

• the existence of barriers to raising and evidencing the existence of domestic abuse;
• a lack of understanding of the different forms that domestic abuse takes;
• a systematic minimisation or disbelief of abuse;
• barriers to children being able to effectively communicate their views;
• problems caused by operating in silos: different approaches taken by the criminal justice, child protection and private law children cases and a lack of co-ordination between family and other courts and agencies leading to contradictory decisions and confusion, and
• a lack of resources to keep up with increasing demand particularly with more parties coming to court unrepresented.

The report also highlights that many abuse victims find the attitude of the courts and tribunals to be “re-traumatising”. It found that outcomes imposed by the courts for the benefit of children are shaped and perhaps flawed as a result of the systemic issues and failings identified by the report.

Most notably, this includes four themes that the report identifies as part of how Child Arrangements Orders are made, namely, that children should have direct contact with an alleged abuse perpetrator, that contact with the alleged abuse perpetrator should progress, that co-parenting should be promoted between an alleged perpetrator and victim, and that involvement of the court should be discouraged, with the result that alleged victims feel pressured into agreeing to an order even if they do not feel that it is safe for them or their child.

Devastatingly, the report details how many alleged victims feel that orders made by the court had enabled continued control of children and adult victims and that their situation had worsened following engagement in family proceedings, resulting in an increased risk of long term physical, psychological and emotional harm. The report quotes from participants who answered the call for evidence and their experiences make for difficult reading.

Having undertaken a number of private law children cases, many of the attitudes and experiences highlighted in the report were sadly familiar to me. This includes but isn’t limited to inconsistent decision making between different judges and magistrates, a reluctance to order fact finding hearings where appropriate and in conjunction, a minimisation or disbelief of abuse and discounting of historic abuse, limiting evidence of abuse, all of which was re-traumatising for clients.

The report also tackles the fact that many alleged abuse perpetrators use court proceedings themselves as a mechanism for continuing their abusive behaviour. This includes making repeated unmeritorious applications or threatening to do so. This is perhaps facilitated by the reluctance of the court to make a barring order under s91(14) unless this behaviour is extreme. Such abusive behaviour can extend to directing threatening or abusive correspondence at the alleged victims’ representatives or other professionals involved in a case (such as medical professionals or independent social workers) or submitting professional complaints about them, further adding to the difficulties the client is facing and increasing distress.

The report provides recommendations for how the family courts can improve their engagement on this issue, including an urgent review of the presumption of parental involvement set out at s1(2A) of the Children Act 1989. In my own recent experience, this cannot come soon enough. It will be interesting to see whether the publishing of the report leads to a heightened awareness by tribunals pending implementation of the recommendations made.

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