The Domestic Abuse bill which is making its way through the legislative process and which was delayed as a result of the calling of the general election (and the prorogation of Parliament) has reached the report stage in the commons this week. It is expected to be amended to incorporate the reforms to the legislation recommended by an expert panel and which will implement those recommendations and commence a pilot scheme to trial them.
This story was reported in the Guardian on 25.6.20 and I have not been able to get an further information at this point, or read the expert panel report entitled ‘Assessing risk of harm to children and parents in private law cases’ (because it has not been published, but will be imminently). Please see the link to the article which I accredit as being the source of all the information I have on this:
The panel was made up of experts from domestic abuse charities, the judiciary, family law practitioners and academics in order to advise the government on the reforms. The aim of the reforms, as stated by the Justice Minister Alex Chalk is: ‘to drive the fundamental change necessary to keep victims and their children safe’.
What has been reported is that within the pilot scheme a number of changes will be made. They are stated as:
1) Judges will be empowered to intervene in cases of domestic abuse to prevent the complainant from being re-victimised by aggressive lines of questioning, as part of a new raft of legal changes announced today (which they already have the power to do under the current rules, as we know).
2) Victims will also be provided with separate entrances to court buildings and given their own waiting rooms as well as protective screens to shield them from former partners (which is already in place as a result of PD 12 J, but not part of the legislation as yet).
3) The additional powers for ‘investigative’ or ‘inquisitorial’ judges to direct the course of hearings rather than following the adversarial approach of British justice will initially be developed in pilot programmes. Judges are being urged to adopt a more continental-style in the way they conduct their courtrooms – intervening and directing lines of questioning rather than merely letting lawyers for each side present their case. This is new, but you may be able to think of some judges have long ago adopted this approach (!).
4) There will also be trials of a “one family, one judge” system where family and criminal proceedings are combined to avoid victims having to relive traumatic experiences on multiple occasions. This is completely new. Not sure how this will work when the criminal offence is question is an ‘either way’ offence or an ‘indictable only’ offence which require jury trials. This would presumably require complete reform of the criminal justice system the likes of which there has not been for literally hundreds of years. This would mean would it not, the end of the jury and lay magistrates’ systems, not to mention the re-training of our specialist judiciary who either do family cases or criminal cases as a rule, not both (save for the requisite periods of 3 or 4 weeks sitting in the crown court for family circuit judges, which I am not sure is a requirement any longer). I have no doubt that the prospect of losing the right to jury trials and replacing them with ‘judge only’ trials would obviously have enormous and wide-ranging ramifications in society and no doubt prove to be a political and ideological battleground.
5) Judges will also be authorised to ban abusive ex-partners from repeatedly dragging their victims back to court. I am not sure how this can be lawfully achieved. We have a mechanism for this in the Children Act 1989 s.91(14) and a test as to when a party can be prevented from making further applications. Given that all domestic abuse fact-finding hearings take place in the family courts as a result of an application under the Children Act 1989, it would have to be a power related to preventing further applications under the Children Act and therefore s.91(14) is the current means of doing that. That test sets a deliberately ‘high bar’ for determining that a parent should be prevented from making an application in. respect of their child. It may be that this is amended and the bar lowered, or new legislation is put in place to achieve this. This would require a balancing of parental rights and the rights of victims of domestic abuse, which will be very difficult to achieve.
6) The Ministry of Justice is also to review the pivotal presumption of ‘parental involvement’ in care cases which encourages a child to maintain relationships with both parents, unless involvement of a parent is deemed to put the child at risk. The review will examine whether the correct balance is being struck between the risk of harm to children and their right to have a relationship with both parents. This is new and very interesting. There has long been a debate about continuing contact with parents after children have been permanently placed outside of their family at the end of care proceedings. It is not known at this stage what the remit of this review will be and whether it will encompass post-adoption contact and contact for parents whose children have been placed in long-term foster care. Presumably this is what it is suggesting, but we will have to wait and see.
The report is quoted as saying: many experts involved in the family courts reported that the “pro-contact culture of the courts” coincided with what some see as a “systematic minimisation or disbelief of abuse, and … acceptance of counter-allegations without robust scrutiny”.
Nicki Norman, acting CEO at Women’s Aid, said: “This report marks a major step forward in exposing what women and children experiencing domestic abuse have been telling us for decades. The culture of disbelief identified by the panel is a barrier to courts making safe child contact arrangements in cases of domestic abuse. The result is that, all too often, survivors and their children experience the family courts as failing to effectively protect them.”
Dame Vera Baird QC, victims’ commissioner for England and Wales, said: “This panel of experts has dug deep to understand, and address, the serious harm to domestic abuse victims and their children caused over many years by the presumption of contact, and the intensely adversarial process present in the family courts. With children’s voices rarely heard in these proceedings and even more rarely heeded, victims and children are in need of better protections from abusive perpetrators.”
Sir Andrew McFarlane, president of the family division of the high court in England and Wales, said: “We are keen for judges to be fully involved in trialling reformed processes for family cases which involve allegations of harm. We hope that parliament will be able to allocate the recommended resources which are identified by the MOJ expert panel as necessary to implement the proposals.”
So, there we must leave it for now. All very interesting. We shall see what changes are implemented and will no doubt soon see exactly which of those recommendations are adopted for the pilot scheme and how it is to be implemented.