Martin Partington: Spotlight on the Justice System

Reforms in the ways in which cases involving domestic abuse are to be handled is another area of the current Government’s policy programme that is still being taken forward despite all the media attention on dealing with the Covid-19 pandemic. (There is of course a link in that reports of incidents of domestic abuse have risen substantially as a side effect of people being placed in lockdown as the first response to attempting to limit the impact of the pandemic.)

The Domestic Abuse Bill 2020 (noted in this blog (21 May 2020) has completed its journey through the House of Commons  on 6 July 2020. It has now been sent to the House of Lords where is received its formal first reading in the Lords the following day.

In my earlier blog I set out the primary objectives of the new bill, so will not repeat them here. There are, however, still concerns about the scope of the bill. In particular, it is argued that people with unsettled immigration status (who are not permitted to have access to services provided through public funding) will remain at particular risk, despite the overall improvements to the system which will be introduced when the Bill becomes law. There are also concerns that levels of funding needed to ensure that services can be provided to the victisms of domestic violence and abuse will not be as generous as they should be.

Another development, which builds on the prospective changes in the Bill, was announced on 25 June 2020 when the Government published Assessing Risk of Harm to Children and Parents in Private Law Children Cases. This was the report of an independent study, led by three leading family law academics, supported by 10 panel members drawn from the Ministry of Justice, the judiciary, social work, womens’ aid and Respect. Commissioned by the Ministry of Justice, the report examined the experience of participants in private law children’s cases. (These are cases in which the parents of children take proceedings in order to determine arrangements relating to the custody of children.)

It consists of two significant documents:

• the analysis of responses to a widespread consulation on the issue;
• a detailed review of the existing published research on the issue.

The key issues that emerged from the consultation responses were:

• a feeling that abuse is systematically minimised,
• children’s voices not being heard,
• allegations being ignored, dismissed or disbelieved,
• inadequate assessment of risk,
• traumatic court processes,
• perceived unsafe child arrangements, and
• abusers exercising continued control through repeat litigation and the threat of repeat litigation.

These issues were underpinned by the following key themes in the evidence that was reviewed:

Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self-representation, with little or no involvement of the child.

A substantial list of recommendations was made to address these issues. The first of these related to the basic design principles for private law children’s proceedings. The panel stated that these principles should be:

• A culture of safety and protection from harm
• An approach which is investigative and problem solving
• Resources which are sufficient and used more productively
• With a more coordinated approach between the different parts of the system

Responding to the recommendations, the Government has announced an Implementation Plan. From a legal system perspective, the key decision is to start a pilot project of the ‘Integrated Domestic Abuse Court’.

Two different models will be tested and evaluated:

1. A ‘one family one judge’ approach in which certain concurrent family and criminal proceedings involving domestic abuse are heard by the same cross-ticketed judge, with the aim of reducing the need for victims to re-tell their stories and promoting a more joined up approach to the handling of such cases between the jurisdictions.

2. An ‘investigative’ approach to the family courts. This will explore ways to move away from the current ‘adversarial’ system to adopt … a more investigative approach [which] will focus on ways to improve gathering and assessing appropriate evidence. Specific emphasis will be placed on ensuring the voice of the child is heard effectively. [The Government] will seek to tackle problems more effectively through the better provision and signposting of support services, while a review stage during the pilot will aim to increase long term sustainability and reduce returns to court.

The Government intends to adopt a phased approach to both pilots. The first phase will involve a period of designing and small-scale trialling of potential solutions to aspects of the detailed pilot. This would be followed by the second phase, the full pilot of both approaches, the design of which will take account of the trial findings from the first phase.

The Covid-19 pandemic presents particular challenges to the immediate launch of this pilot. Both the family and criminal courts have had to alter drastically the way in which cases are processed at this time, and the results of any pilot undertaken in such circumstances are likely to be less representative and informative than they would usually be. In addition, courts and practitioners are under considerable pressure to ensure that as many cases as possible are heard at this time.

The Government therefore needs to keep the start date of the pilot under review dependent on the duration and impact of Covid-19, but will commence it as soon as it is practical and safe to do so. The Government will work with a range of stakeholders to develop the pilot plans further, and then publish additional information and a start date for Phase 1 as soon as the current situation permits.

For the version of the Domestic Abuse Bill which has gone to the House of Lords, see https://services.parliament.uk/Bills/2019-21/domesticabuse.html

For the reports of the study Assessing Risk of Harm to Children and Parents in Private Law Children Cases, see https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history

The Implementation Plan is also available at https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history