The Family Court and Domestic Abuse – Any change?

Hannah Rought-Brooks looks at recent developments in relation to the Istanbul Convention on preventing violence against women, and sets out the key recommendations from an important report published by the Domestic Abuse Commissioner.

The United Kingdom became the 37th state to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘the Istanbul Convention’), meaning the Convention finally entered into force in November 2022, some ten years after the UK initially became a signatory. The Istanbul Convention is seen as the gold standard because of its comprehensive nature in addressing violence against women in all its forms.

This can save lives - one in five women in the EU have experienced some form of physical and/or sexual violence from a current or previous partner from the age of fifteen. In the UK the police recorded 1,500,369 domestic abuse-related incidents and crimes in England and Wales in the year ending March 2022; and the NSPCC has reported that one in five children have lived with an adult perpetrating domestic abuse.

In June 2023, the UK government submitted its 80-page baseline report to the Committee of Experts that monitors the Istanbul Convention, known as Grevio. This report details from the perspective of the government how they are complying with their obligations under the Convention and they highlight progress such as the Domestic Abuse Act which became law in 2021 and The Tackling VAWG Strategy and Tackling Domestic Abuse Plan.

The government in their baseline report, recognise the Domestic Abuse Commissioner as a key stakeholder. The role was established to be an independent voice that speaks on behalf of victims and survivors, and has statutory powers, set out in the Domestic Abuse Act to raise public awareness and hold both agencies and government to account in tackling domestic abuse.

In the last three years, the Domestic Abuse Commissioner has used her powers to shine a light on the family justice system, and its role in a national response to domestic abuse as a whole. Three years ago, in 2020, the Commissioner’s Office published the Harm Panel report which made a number of recommendations in respect of family justice. This was followed up most notably with measures including: the prohibition of cross-examination by a defendant within all family proceedings; the Qualified Legal Representative (QLR) scheme was established to assist with appointing QLR’s to conduct cross-examination in family proceedings; Independent Domestic Violence Advocates (IDVAs) and Independent Sexual Violence and Advocates (ISVAs) were permitted access to the Family Court (Garden Court barrister Luke McClean previously reviewed this and some of the limitations.)

‘The Family Court and domestic abuse: achieving cultural change’, published in July 2023, is the second report on the family justice system from the Domestic Abuse Commissioner which seeks to improve the Family Court and its ability to effectively engage with domestic abuse. The new report identified a number of continuing major issues for survivors of domestic abuse going through private family law children proceedings: a lack of holistic support; a culture of disbelief; the minimisation of domestic abuse; the absence of the voice of the child; and the harmful effects current practice has on children.

The Domestic Abuse Commissioner, Nicole Jacobs, in the report, makes ten recommendations to achieve the change needed to fulfil the provisions of the Domestic Abuse Act 2021. She is calling on the government to abolish means testing for legal aid for all victims of domestic abuse. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) cut large areas from legal aid, meaning fewer people can access legal advice. Access to legal aid in disputes can be the difference between a family staying in a safe home or homelessness, protection from domestic abuse, or staying in an abusive relationship.

The report notes that the application process for legal aid is complex, requiring victims and survivors to provide extensive evidence of their finances. The report sets out what many lawyers working in this field are well aware of, that:

“It can also be extremely challenging for victims and survivors to provide additional and / or supplementary information and / or documents, particularly where their passports may have been confiscated by a perpetrator, or where access to their bank accounts or joint assets were restricted throughout the course of their relationship. The present process of applying for legal aid is prohibitively challenging, particularly given the compromised state and heightened stress levels of those attempting to understand the complex guidance…Litigating in person is rarely appropriate in domestic abuse cases due to the complexity of these cases and the re-traumatisation which victims and survivors experience in having to litigate against their perpetrators.”

It is worth noting that Article 57 of the Istanbul Convention provides that “Parties shall provide for the right to legal assistance and to free legal aid for victims under the conditions provided by their internal law.”

Other recommendations to the government include the establishment, and provision of appropriate funding for a new role of Domestic Abuse Best Practice Lead in every Family Court area; developing and consolidating best practice from the Pathfinder Courts; greater transparency and consistency across the whole family justice system, so that a full culture-change programme of training on domestic abuse is provided; that funding for specialist domestic abuse training; and that The Qualified Legal Representative scheme should be fully and appropriately resourced.

It is not clear at present when Grevio will be monitoring the UK’s compliance with its obligations under the Istanbul Convention, but the issues raised by the Domestic Abuse Commissioner’s report in respect of the family justice system must be highlighted and brought to the attention of the Committee.

I had the opportunity to speak at a conference in Georgia in October (remotely) about Georgia’s implementation of the Istanbul Convention and good practice in providing specialist support services to victims of domestic violence and violence against women, particularly highlighting the importance of an intersectional approach to services.  It is clear that Grevio holds states to a very high standard and the monitoring process is an opportunity to improve the way that victims and survivors are treated during the family justice system, and more broadly. We can also utilise the framework of the Istanbul Convention, and its detailed provisions in our day to day practise in the family courts to ensure the best outcomes for victims and survivors of domestic abuse and their families.

Hannah Rought-Brooks is a member of the Garden Court Chambers Family Team.