Court of Appeal Misses Opportunity To Effect Culture Change Needed In Family Courts
This morning (30/03/2021) the Court of Appeal handed down judgment in what could have been a landmark case challenging the family court’s attitude to domestic abuse and sexual violence in child contact cases.
The appeals were brought after the family court was heavily criticised following a judgment highlighting a judge’s sexist views about rape and a report published by the Ministry of Justice (the Harm Report) which concluded that there are systemic problems with how family courts deal with domestic abuse and other risks of harm.
The case concerned four joined appeals from mothers who had experienced minimisation and dismissive attitudes to the abuse they had experienced. Three of the four appeals were successful and the court did not determine the issues in the fourth case.
A group of leading women’s rights organisations (Rights of Women, Women’s Aid, Welsh Women’s Aid and Rape Crisis England and Wales) intervened in the ground-breaking Court of Appeal case. They raised the ways in which the family court is failing to protect victims of domestic abuse and their children due to outdated views of male violence against women, particularly where rape is concerned.
The Court of Appeal has given guidance that old fashioned views about controlling and coercive behaviour are no longer acceptable in the family court and that judgments that fail expressly to consider the relevance of coercive control may be appealable.
However, the Court of Appeal failed to use the opportunity given to address the deeply entrenched pro-contact culture identified in the Harm Report and send a clear message that culture change is necessary to protect women and children from the cycle of abuse that can have life-long and sometimes deadly consequences.
The Court also failed to grapple with the procedural flaws in the way victims of sexual violence are treated in the family court stating this was “beyond the scope of this judgment”. This response leaves victims of rape and other forms of sexual violence to continue to face the same sexist attitudes that have been in place for decades.
Olive Craig, Senior Legal Officer at Rights of Women said today:
“Male violence against women and children is frequently ignored or minimised by the Family Courts and a culture change is long overdue. The Court of Appeal’s judgment goes some way to highlighting the importance of family law professionals identifying and understanding coercive control. But we are saddened that the Court does not appear to have listened to the resounding message from the Harm Report and the women we support that culture change is needed. The cases the Court heard are clear examples of the minimisation by family judges of male violence against women. As a frontline women’s charity, we hear every day about the failings of the court to protect women and children. The Court of Appeal could have used this rare opportunity to send a clear message about the importance of protecting women and children but instead prioritised concerns about workloads and court time over the safety of women and children.
Despite sexual violence being raised in the appeal cases, and the Court hearing submissions about the importance of procedural fairness in these cases, the Court’s response avoiding responsibility for this issue was completely inadequate.”
Sara Kirkpatrick, CEO at Welsh Women’s Aid, said:
“This appeal was brought in order to highlight the systemic failings of the family court, the judgment today while reiterating the need for better understanding of coercive control and all forms of domestic abuse which is most welcome. Still sadly falls short of addressing those systemic issues. If our civil justice system is not able to protect adult and child survivors of abuse from further harm then it is sadly not a delivering ‘justice’ merely process.“
Lucy Hadley, Head of Policy & Campaigns, Women’s Aid Federation of England, said:
“Today the Court of Appeal has made clear that family judges must see domestic abuse as part of their core business. We hear daily from survivors who tell us that abusers use the family courts and child contact arrangements as weapons to continue control after they’ve escaped. We welcome the conclusion that family judges must do more to investigate patterns of coercive and controlling behaviour, and examine what harm this has upon a child. The courts must recognise that abuse does not end when a relationship ends.
But we are severely disappointed that the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger. From our work with survivors, we disagree that the ‘vast majority of judges and magistrates’ had adequate training and understanding about the harm that domestic abuse causes. We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors. We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”
Katie Russell, national spokesperson for Rape Crisis England & Wales said:
“The Court of Appeal’s recognition today that understanding of coercive control and the harms it causes must play more of a role in family courts proceedings is really positive. We are nonetheless extremely disappointed that the ruling declined to tackle the significant problems of victim-blaming rape myths, lack of understanding of the law on sexual consent from Family Courts judges, and the overall minimisation and dismissal of sexual violence and abuse in Family Courts. Through our frontline work at Rape Crisis, we know the significant harm and retraumatisation these attitudes as well as the pro-contact culture in Family Courts can and do cause survivors. With our partners, we will continue to highlight the real and urgent need for culture shift in the Family Courts.”
The judgment is available here: https://www.judiciary.uk/judgments/re-h-n-and-others-children-domestic-abuse-finding-of-fact-hearings/