This is a guest post by Dr Jess Mant, Lecturer in Law at Cardiff University School of Law and Politics. Jess was recently awarded a PhD for her study on ‘Litigants in Person and the Family Court: The Accessibility of Private Family Justice After LASPO’.
We hope to publish more posts about this Review in the coming days.
Researchers, activists and practitioners working in the field of family justice and domestic abuse have reason to be hopeful this month, as the Ministry of Justice publish their findings of the ‘Spotlight Review’ report, entitled ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’. The report and accompanying ‘Implementation Plan’ are the latest development in a long and complicated history of reforms that have attempted to improve the conditions of the family justice system for survivors of abuse in private family law proceedings. To date, these reforms have had limited success, with continued reform attempts being described as a ‘cycle of failure’ (R. Hunter et al. (2018), ‘Introduction: Contact and domestic abuse’ Journal of Social Welfare and Family Law 40 (4) 401-425, p.404.) However, this Review may bring much-needed change for survivors, and perhaps even go some way towards supporting the broader population of Litigants in Person using the family justice system.
The ‘Cycle of Failure’
The Review draws together a vast amount of literature on domestic abuse along with the evidence collected. Broadly speaking, it acknowledges two important reasons for the failure of reforms that have been implemented so far.
Firstly, the removal of legal aid for the majority of private family law cases under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 means that many more cases in the family court now involve people self-representing as Litigants in Person (LIPs). Although domestic abuse was heralded as an exceptional circumstance in which people should still be able to access legal aid, restrictive evidence criteria (especially before 2018) has meant that many survivors end up in court as LIPs. Aside from this, the increase in self-representation generally has led to broader resource constraints and pressure on the family justice system, which have also impacted upon the ability of this system to support and protect survivors. The court process is, in many ways, under strain because it is simply not designed to accommodate the diverse range of LIPs who find themselves in court after LASPO. The process is premised upon a ‘full-representation model’ (see this Ministry of Justice report on page 53) which does not reflect the reality that there is rarely an equal playing field, and that many cases involve survivors facing abusers.
When it comes to domestic abuse, this strain equates to limited resources to support survivors’ participation in hearings. For instance, research has consistently demonstrated the prevalence of unrepresented abusers directly cross-examining survivors, especially now that legal aid is only available to verified survivors. This not only exacerbates an existing inequality of arms between the parties but can also have the effect of re-traumatising survivors and preventing alleged abusers from having a fair hearing of the allegations made against them. Further, special measures like screens, video links and separate waiting arrangements are also frequently unavailable for survivors facing abusers in court. Although increased availability of special measures were included in the recently re-introduced Domestic Abuse Bill, these were disappointingly limited to criminal proceedings.
The second reason is that LASPO intersected with existing problems relating to the ‘pro-contact’ culture of the family court process, and enduring difficulties among family law professionals to appropriately identify and respond to domestic abuse. For decades, research has indicated the ways that the court process has been geared towards ensuring a child has contact with both parents, even where concerns about abuse have been raised (A. Barnett, (2014) ‘Contact at all costs? Domestic violence and children’s welfare’ Child and Family Law Quarterly 26 (4) 439-462, p.443-54.) In 2014, a controversial presumption of involvement was introduced under the Children and Families Act, which states that parental involvement in a child’s life will further their welfare unless this puts them or the other parent at risk of abuse. There is guidance for judges under Practice Direction 12J as to how to identify these situations and respond to allegations of abuse – for example, by directing parties to Fact-Finding Hearings. This guidance has been revised and updated multiple times in response to evidence that it has not been sufficiently implemented. The Review draws this evidence together and states that, in practice, allegations of abuse are frequently minimised or dismissed as a result of the emphasis that is placed on securing an outcome of contact.
In fact, the Review goes even further, and argues that these failures are compounded by gendered stereotypes of what victims look like. For instance, the authors note that delayed reporting of abuse, staying within an abusive relationship, appearing ‘over’ or ‘under’ emotional in court are all relevant factors in whether allegations are taken seriously. The review acknowledges that these stereotypes and misunderstandings of abuse also mean that male victims face barriers within the court process. This lack of understanding means that professionals have difficulty identifying and responding to abuse, especially when abuse is non-physical or historical. Taken together, the report acknowledges that those working within the justice system are under increased pressure after LASPO, but pointed to a range of ‘deep-seated and systematic’ issues which mean that, despite the guidance in 12J, the family court process can often have the effect of re-traumatising survivors and producing potentially unsafe child arrangements.
Time for Change
The Review makes a series of bold recommendations, which are focused around the introduction of a statement of practice for cases involving allegations of domestic abuse, drawn from and reinforced by four ‘basic design principles’ for how the family court should manage these cases in future. Under these principles, the court should be ‘safety focused and trauma aware’, should take an ‘investigative approach’ to solving family problems, should have the resources needed to operate effectively, and should work in co-ordination with other procedures and services, such as those operating in criminal law and public family law. These principles directly respond to the procedural and cultural problems identified above, in a way that firmly suggests the family court process needs to be overhauled in order to properly support survivors as well as take account of how these problems have been exacerbated by LASPO.
The government’s response to the Review is, in many ways, staggeringly positive. For instance, the Implementation Plan states that in addition to further training for court staff and family judges, the special measures provisions in the Domestic Abuse Bill should be extended to the family court, and that this Bill should also be amended to bar direct cross-examination in any family proceedings where there is evidence of domestic abuse or abuse is the subject of proceedings.
A significant proposal which has been accepted by the government and included in their Implementation Plan, is the call for an urgent review of the presumption of involvement. For some time, academics and practitioners have argued that this presumption reinforces the pro-contact culture of the family court, so the government’s promise to ‘investigate the balance’ between the welfare of children and survivor parents is an important step towards ensuring that abuse is properly recognised within proceedings. This commitment to investigate may, however, fall short of calls from organisations like Women’s Aid to ‘end’ the presumption altogether.
Another important proposal which has been taken on board by the government is the panel’s suggestion for a more investigative approach to the family court process (currently governed by the Child Arrangements Programme), which will align more comprehensively with other justice processes and agencies. The government have agreed to pilot a more investigative process which will place specific emphasis on providing and signposting to support services. Although the pilot will inevitably be delayed until the COVID-19 pandemic subsides, this is another promising commitment for survivors which may also have benefits for the broader population of LIPs. The pledge to review the way that the court process operates for survivors, is an acceptance that change is necessary in order for this process to respond to the reality that LIPs come to court with specific needs and vulnerabilities. This therefore has the potential to be an important foundation for future reforms to the family justice system after LASPO.
A Starting Point?
In the Review, the panel specifically take this point forward and emphasise that procedures should be redesigned with the needs of LIPs as central considerations. As they explain, procedures which are designed for the most challenging cases are still capable of addressing the needs of those in more straightforward cases, and therefore proposed changes to the family court process would be beneficial for all cases, especially after LASPO.
The crux of this, however, may be undermined by the rather non-specific commitments to resource provision in the government’s implementation plan. While the plan outlines important financial commitments to survivors across the board, it is not clear from this plan how much of this will be allocated to domestic abuse as it presents within private family law. Similarly, the plan states that the Ministry of Justice and HMCTS will consider how LIPs can be ‘best supported and empowered’. However, this statement does not build much upon the commitments made last year’s Legal Support Action Plan, which was published alongside the Post-Implementation Review of LASPO.
Nevertheless, the Review and Implementation Plan mark an important turning point for LIPs. It is extremely significant that the Ministry of Justice has published this Review, acknowledged the systemic nature of these problems, and made sweeping commitments to review fundamental aspects of the procedure and culture of the family court. Perhaps this is indeed at least a starting point for thinking through broader, more meaningful change for all LIPs.
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