The Government has recently announced plans to include in the Domestic Abuse Bill measures to prevent the victims of domestic abuse having to face their former partners in court. Concern has rightly been raised about victims having to be in the same court as those who perpetrated abuse against them and it is proposed that safeguards such as screens and video linking could be used.
In some cases those accused of perpetrating domestic abuse have been able to question their victims as part of the court process leading to calls for changes to the law to prevent that practice and it is hoped that that the Bill will address that issue.
Some organisations have called for the measures to apply in the Family Courts also however in what circumstances may that be necessary?
Sadly, domestic abuse features in many cases dealt with in the Family Courts. When victims apply for relief in the form of injunctions, the Court needs to decide whether making such an order is justified. Also in proceedings relating to children allegations of domestic abuse are sometimes made and the court is tasked with dealing with that issue.
Indeed Practice Direction 12J of the Family Procedure Rules 2010 places an obligation on the Family Courts to, “consider whether domestic abuse is raised as an issue. . . and if so must identify at the earliest opportunity the factual and welfare issues involved. . . “
This often means that in cases where the court is being asked to decide what is in a child or children’s best interests and allegations of domestic abuse are made by one parent against the other the court must consider, “the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms.” If the parent against whom the allegations are made does not admit them the court then has to embark on a process to decide what did and didn’t happen. This is usually referred to as a Fact Finding hearing and takes place much like a criminal trial.
It is during such a hearing that the person who has made allegations may need to be questioned by the party against whom the allegations are made. This can happen when the person against whom the allegations have been made doesn’t have a solicitor representing them and who can ask questions on their behalf.
This is clearly an unsatisfactory situation which needs to be resolved but it seems that one of the causes could be the current Legal Aid situation. Changes to Legal Aid dating back to 2013 reduced significantly the availability of Legal Aid in cases where a court is being asked to make decisions about arrangements for children. However a party who has made allegations of domestic abuse can, subject to obtaining evidence, secure legal aid to pursue their cases. Those against whom allegations are made though cannot secure Legal Aid to defend those allegations regardless of their financial circumstances. Perhaps a change to the rules on the availability of Legal Aid in cases involving allegations of domestic abuse could help to avoid situations where an alleged abuser has no option other than to conduct their own case defending allegations made against them including having to cross examine the alleged victim.
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