Domestic Abuse – Getting Tough at a National Level
Earlier this year the Government announced that it will make it a legal duty of Councils across England to provide safe and secure locations for victims of domestic abuse. The situation has been a bit of a “post code lottery” with facilities varying widely depending on where you are living. The Government is looking to standardise access to safe-houses and accessible help for victims of domestic abuse, across the country.
Up to this date there has never been a statutory definition of domestic abuse. The Domestic Abuse Bill looks to not only provide a definition but also to include, for the first time, financial abuse and non-physical controlling and coercive abuse.
What impact will the Domestic Abuse Bill have on family court proceedings? Not surprisingly if more “behaviours” are identified as domestic abuse then there should be an increase in allegations of domestic abuse and, in particular, children proceedings. The courts consider that domestic abuse (in the widened definition) is harmful to children whether they are subjected to domestic abuse or witness one of their parents being abusive to the other parent or live in a home in which domestic abuse is perpetrated. It is perceived that children may suffer harm directly from the abuse of a parent, or indirectly where the abuse impedes the parenting capacity of either of the parents. This widening of the definition of abuse has been largely welcomed by the legal profession but the problem is that the implementation of the widened definition is being hampered by the lack of resources within the family courts.
The rules governing how the Court behaves during family law and in particular, children proceedings, are very clear When an allegation of domestic abuse is made within children proceedings, the Court is obliged to identify at the earliest opportunity the factual and welfare issues involved, the nature of any allegation of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order.
In particular, under paragraph 25 of Practice Direction 12J, in circumstances where the allegations are undetermined, the court must consider whether it is in the interests of the children to allow interim contact with the accused parent. The point being that the risk of harm is paramount in assessing whether contact is appropriate. Judges will often simply prohibit any interim contact until a hearing can be heard and a fact-finding process has reached its conclusions.
Ideally the judge should determine whether a finding of fact is necessary “as soon as possible”, but the current situation in the family courts, where courts are closing, and the remainder are underfunded and understaffed. The result being that hearings are listed many months in the future, sometimes as much as 6 months. For this period the accused parent is prevented from having contact with their children. Another result can be that even where a falsely accused parent is vindicated, it is all too often the case that restarting contact can become its own issue, causing further acrimony and leading to more delays and problems. Obviously the delays can also mean that the victims of abuse, themselves, can be left waiting far too long for the Courts to make an order protecting those who are at risk of harm.
As with many areas of life, good intentions are great as long as they can actually be implemented. The government needs to ensure that these welcome reforms reach the people they are intended to help. The family courts need to be able to adequately provide services for those in family disputes. Without sufficient Court staff, time and resources, parents are let down and delays will continue. Sadly the eye of the present administration is elsewhere and the commitment to be able to successfully introduce change, perhaps, isn’t quite what it should be!
