On 29 November 2021, the Domestic Abuse Commissioner (DAC) published a report on improving the family court response to domestic abuse. The report makes proposals for establishing a ‘monitoring and reporting mechanism on the family court’s performance in how survivors of domestic abuse and their children are dealt with in private law children proceedings’.
This action is being taken in response to a key recommendation from the Ministry of Justice’s Harm Panel report on establishing a national monitoring team. The purpose of this team would be to maintain oversight of and report regularly on the family court’s performance in dealing with these cases.
The aims of the mechanism include increasing understanding, transparency and accountability within the family court on how allegations of domestic abuse are treated, and the longer-term impact on survivors and children. The report highlights that better data on the treatment of domestic abuse allegations and the experiences of survivors and children will help drive improvements in how these cases are handled, improve consistency across court areas, and will be able to be used to address the issues noted in the Harm Panel report and in the recent Court of Appeal case of Re H-N.
With the aim of inviting feedback on proposals for the mechanism, the DAC conducted roundtables with experts working in this area including from the Ministry of Justice, Bar Council, Cafcass, NSPCC, the judiciary, Southall Black Sisters and SafeLives, as well as with some survivors of domestic abuse. Following on from those roundtable meetings, the report sets out various priorities for monitoring, which are grouped into the below categories:
- Legal representation, support and special measures – participants in the DAC’s roundtables highlighted a lack of access to specialist domestic abuse support, the importance of representation by solicitors and barristers with a good understanding of domestic abuse and reliable access to special measures.
- Pathways to court – participants raised concerns about survivors being inappropriately diverted to mediation and survivors being advised not to bring up their allegations of domestic abuse for fear of ending up with a worse outcome.
- How proceedings are conducted – participants emphasised the importance of monitoring whether parties alleging domestic abuse are given a fair hearing and how risk to a child is assessed.
- Final orders made and events after the end of proceedings – the mechanism will need to capture the nature of final orders made, and whether and how written reasons are recorded by judges. Participants also felt that the mechanism should capture returns to court for breaches of orders, allegations of abuse post-proceedings, Cafcass concerns about court ordered contact, s.91(14) orders and appeals.
Design of the mechanism will be completed in early 2022 and the pilot phase will commence in late Spring 2022. The pilot phase will consist of a scoping exercise to assess what data is able to be collected from various agencies including HMCTS and Cafcass, and a mixed method monitoring pilot across three court areas. Following the pilot phase, the DAC intends to publish a report to include the design of a framework and instrument for longer-term monitoring of the family court’s response to domestic abuse in private law children proceedings nationally.
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