In July 2023 the Domestic Abuse Commissioner, Nicole Jacobs, and her team, published their report to Parliament – The Family Court and domestic abuse: achieving cultural change.

This report is likely to prove controversial with family lawyers, as the Commissioner does not hold back with her criticisms of some of the functions of the Family Court. That said, personally I feel many of these criticisms are valid assessments of issues experienced by family barristers at all levels on a daily basis. For me, it provided a comforting foil to some of the case law which has placed barriers in the way of resolution for some of the victims and survivors I represent.

What struck me most about this report was its consistent view that the Commissioner ‘fears that a child-centric approach has not taken place and a full understanding of domestic abuse has not been demonstrated’. [9.25, page 68]

How can this be, when we are living in a post Re H-N world, when we have the findings of the Harm Panel report to rely on, and when there is more judicial training than ever before? In fact, the Commissioner indicates in her report that the Family Court’s approach to fact-finding has moved backwards recently, and the negative impact of the avoidance of fact-finding hearings is explored in the report.

I spoke to the Commissioner in June prior to the publication of the report to hear first-hand what her key take-aways from this report were.

We started by discussing the fact that progress has been made in the last three years following the Harm Panel report, however, there is still work to be done. The Commissioner noted that the emphasis she would like to see is on the voice of children. It is key, she said, that reforms in the Family Courts continue to be prioritised, and that momentum in this area continues.

The Commissioner highlighted the work of the new Pathfinder Courts in Wrexham and Dorset. These provide, she noted, a different model of working with a ‘child impact assessment’ early on in proceedings. This includes a domestic abuse assessment which enables the Court to hear from a wider proportion of the domestic abuse sector and sits alongside Cafcass reports in proceedings. What the new assessment provides that Cafcass might not be able to, is a ‘quick link to wider supportive provision’ that then helps a potential victim feel more confident. The Commissioner feels that having that support ‘in the mixture’ is positive as the court is provided with a wider knowledge base earlier on in proceedings, although it is important to note that the child impact assessment is separate to the signposting process.

I asked the Commissioner what effect she hoped her report would have. She looks forward to the government publishing their response to the 10 recommendations within 56 days, as is statutorily mandated. It is hoped that more certainty can be provided in respect of next steps, and questions such as ‘why not fund more services where there is a clear need?’ and ‘how can we better utilise the existing legislation?’ can be answered by the government.

One interesting point that the Commissioner made, and which is a focus of the report, is about allegations of so-called ‘parental’ alienation. The Commissioner noted that hearing allegations of so-called ‘parental’ alienation in parallel with allegations of domestic abuse, does not afford the allegations of domestic abuse the most appropriate forum to be heard. She feels that what is critical for the court is ‘to have a confident understanding of the context of allegations’. ‘Considering the prevalence of domestic abuse, its impacts and the way it can disrupt a family are all matters the court needs to understand first, prior to dealing with allegations of so-called ‘parental’ alienation. Of course, the Commissioner acknowledges that children are weaponised in some proceedings, but her recommendation is that we are not dealing with these allegations in the best way currently. How this approach matches up with the resources in the system is, as ever, a battle yet to be fought, but theoretically the Commissioner is on top of what’s happening on the ground for family lawyers, and has clearly thought carefully about the ideal way to deal with these cases.

It was notable also that the Commissioner felt that the Family Court has improved in a number of ways. She noted that IDVAs can now provide much more support; the use of intimate images in Court is now restricted; cross-examination by a respondent to allegations of domestic abuse is prohibited in the circumstances set out in the DA Act; and the Qualified Legal Representative scheme has been established to assist with this. Hopefully, in practice, lawyers are seeing these methods implemented, but the report also provides for further monitoring in case the provisions we already have are not being utilised appropriately. The Commissioner now recommends the appointment of Domestic Abuse Best Practice Leads employed by HMCTS to act as a central point of contact and information for parties to proceedings and local domestic abuse services. They would liaise with other agencies such as the police or MARACs, and would facilitate feedback from court users and local domestic abuse services, including ensuring parties were aware of special measures. It sounds very much like this role would plug a gap in communication between parties, services and the Courts, and I for one am looking forward to seeing them put into place if accepted by the government. Again, the spectre of funding and resources raises its head. The report indicates [8.20, page 56] that 52 such leads are appointed in each of the entry points for private law proceedings in England and Wales. This is likely to cost £4,705,194 to staff, in a system which already appears to be crumbling.

The Commissioner takes a broader view of this, noting that with more resources and greater understanding of domestic abuse earlier on, families will not have to endure such protected proceedings with the inevitable traumatic consequences, which in turn provides a long-term saving for the government.

The report also sets out the new oversight mechanism which the Commissioner is going to employ over the coming years, to enable an evidence-based approach to the issues encountered anecdotally. The Family Court Monitoring and Reporting Mechanism (FCMRM) will look to gain an insight into: cases, orders and the dynamics within the Family Court. Provision of court documents will help the Commissioner and her office to be much more precise in their recommendations and support. The FCMRM will be an independent body, for which a contract has been awarded to an academic partner, and will pilot in three courts in England and Wales which are yet to be determined. The FCMRM will look into issues such as ‘how many times do we see a case where one party alleges domestic abuse for it to be countered by an allegation of so-called ‘parental’ alienation?’, research assistants will observe cases in Court to see how PD12J is being applied in reality, and hopefully soon we will all have a greater insight into the evidence base for reforms which many feel are necessary but have so far been unobtainable.

The Commissioner also presents a model to understand the child who is unwilling to spend time with a parent: the ‘reluctance – resistance – refusal’ model. Through this lens the Commissioner feels we can both better understand the reasons for unwillingness, and also hear the voice of the child more clearly. The Commissioner notes that ‘A child’s reluctance, resistance, or refusal at contact (see principle 3), or increased contact, must be determined within the framework of response to abuse if domestic abuse is established. Domestic abuse does not need to be the whole reason for a child’s response and can be understood to be part of it.’ The reluctance – resistance – refusal model is set out [on page 66 of the report] as follows:

 

 

The Commissioner emphasises that as well as being a technical report to help practitioners, this is first and foremost a report speaking to the concerns of victims who contact her every day. She has tried to amplify their concerns and has written specifically about those who contact her office. The impact on individual lives of these decisions, in situations where there is no full understanding of domestic abuse, is not lost on her.

There were two other areas I was eager to cover with the Commissioner as part of the time she generously gave me. The first was economic abuse and the child maintenance service (CMS). The Commissioner noted that there was a recent Domestic Homicide Review (DHR) related to the CMS sharing some details with a perpetrator. This resulted in a recommendation that the DWP should look into how they deal wholesale with CMS. A report by Dr Samantha Callan – published December 2022 – makes recommendations such as for the DWP to look at more complex cases more closely. The Commissioner says she is very interested in the idea of having caseworkers who could take on more complex cases as it is currently too much to ask of the CMS as it is set up now. At the moment it is a problem that victims disengage with the CMS as they do not want the confrontation the system involves. Again, resource and knowledge are key requirements to improve some of these issues.

Lastly I spoke with the Commissioner about DVPOs and the incoming DAPOs. The Commissioner noted that there has been a lot of work within the Family Procedure Rules committee who are ‘gearing up for DAPOs’. Three pilot sites have been named in Greater Manchester, London (Croydon, Bromley, Sutton) and South Wales and a lot of work is going on behind the scenes, with the hope to pilot DAPOs for a couple of years. Further into the future, one of the things the Commissioner would like to see is the importance of service mapping reflected in the roll out of these orders. She notes that we can only attach positive requirements to orders where the provision is available, and this is not just in relation to perpetrator courses, but also mental health and substance misuse services. As a related issue the Commissioner noted that IT reforms, enabling greater communication and recording of orders in force, will lead to a greater and more effective level of enforcement.

Clearly there is still much to learn, and to do. Many of these reforms and recommendations will take time to embed, if indeed they are actioned at all, but the Commissioner has a clear plan to help those of our clients most in need of support. 

References and further information

Re H-N and Others (Children) (Domestic Abuse: Finding of fact hearings) [2021] EWCA Civ 448

The Family Court and domestic abuse: achieving cultural change, Domestic Abuse Commissioner

Independent Review of the Child Maintenance Service (CMS) response to Domestic Abuse, Dr Samantha Callan

Assessing Risk of Harm to Children and Parents in Private Law Children Cases: final report, Professors Rosemary Hunter, Mandy Burton and Liz Trinder

‘Eyes wide open: the DA Commissioner, Nicole Jacobs’, Natasha Isaac, Counsel, October 2021