The Prime Minister recently took a break from keeping her head above the waters of Brexit to announce that the Government will make it a legal duty of Councils in England to provide secure home for victims of domestic abuse. The plans aim to standardise access to refuges and help for victims of domestic abuse, across the country. The Domestic Abuse bill will also include the first statutory definition of domestic abuse reform to included financial abuse and non-physical controlling and coercive abuse.
In a message to victims, Mrs May commented:
“Whoever you are, wherever you live and whatever the abuse you face, you will have access to the services you need to be safe.”
Aside from increased access to refuges, the Domestic Abuse Bill will also have a big impact on Family Court Proceedings. A widened definition of Domestic Abuse will, no doubt, result in more allegations of abuse being made within Children Proceedings. The Courts consider that domestic abuse (in its now 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 (even if the child is too young to be conscious of the behaviour). 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 is, undeniably, a step in the right direction. However, the implementation of the widened definition is being hampered by the lack of resources within the Family Courts.
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 and consider 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.
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 and whether the risk of harm can be managed. In my experience, Judges will simply prohibit any interim contact until a Fact-Finding Hearing can be heard and a finding of fact made (irrespective of whether the allegations are well founded or not).
While, in practice, the Judge should determine whether a finding of fact is necessary “as soon as possible”, the unfortunate reality of the current situation in the Family Courts, where courts are being closed and those that survive are underfunded and understaffed, mean that very often, Fact-Finding Hearings are listed many months in the future, often as much as 6 months. For all of this period, the accused parent is prevented from having contact with their children. Even when a finding of fact is made, and a falsely accused parent is vindicated, it is all too often the case that restarting contact can become its own issue, causing further acrimony. The delays mean that victims of abuse can be left waiting for far too long for the Courts to make an order protecting children who are at risk of harm.
While these reforms are no doubt welcome to those in the direst need of immediate assistance, it must be time for the government to turn its eye to making sure that the Family Courts are able to adequately provide services for those in family disputes. Without sufficient Court staff, time and resources, parents are far to often left in the lurch. Perhaps Mrs May should make sure that her commitment that parents have access to the services they need, includes a Family Court system that can serve the needs of those of most desperate for assistance? Just a thought.
Clive Hogan, Solicitor – rhw Solicitors llp
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