Domestic Abuse Victims and Family Courts

Alison Thewliss Excerpts

Wednesday 18th July 2018 Westminster Hall

[Jess Phillips]

I certainly do not know of any. I will mention the recent study by Queen Mary University of London, in partnership with Women’s Aid, of how people are treated in the family courts. I am not aware of any Government reviews of the effect of litigants in person and, more broadly, of people being cross-examined by people who abused them, but I would certainly like to see one. If our courts and the Department are happy for that to go on, it is only right that they review whether it should continue.

Queen Mary University of London found that 24% of domestic violence victims who had gone through the family court system had been cross-examined by their perpetrator—someone who may have raped them, kept them prisoner or made them look on while they abused their children. We have the “achieving best evidence” standards in this country. I am not sure I can remember the bit in those standards that says the best way to get evidence in a justice environment is to allow someone who is utterly terrifying and has abused the victim to question them. I am not sure that we currently meet any sort of standard for achieving best evidence.

James Munby made it clear that the hands of family courts are tied—they simply cannot stop that cross-examination. Legislation is not in place to allow them to stop it. I know the Government want to stop it, too, and I am glad they heard our calls about that. I suggest that they do it. When the right honourable—I am not sure whether he is right honourable, and I am certainly not sure whether he is right or honourable—Member for Christchurch (Sir Christopher Chope) embarrassed them on upskirting, a Government Bill was suddenly introduced to address that. It has been widely publicised that the House will sit for two days next week. I would gladly come back then to see through a piece of legislation that has been passed once already—it has already gone through rigorous scrutiny by the Clerks and the House. I would gladly pop down on a train from Birmingham to stop the cross-examination of victims of domestic abuse by their abusers.

The second area that everyone who has been in touch with me has given a lot of attention is practice direction 12J and new practice direction 3AA. I believe practice direction 12J was reaffirmed for magistrates courts and our family court system because, frankly, it was not being followed. For those who are not as geeky as I am about the old practice directions in the family court system, practice direction 12J basically undoes the idea that someone who has been abusive has a right to see their children. That is not an automatic right, especially in cases where there is domestic abuse. Practice direction 12J gives that steer to people making such judgments. I handled hundreds of cases involving domestic abuse, and I cannot say I ever noticed that practice direction being used. I have great faith in the Magistrates Association, and I believe from what it wrote to me this week that that direction has been affirmed.

I wonder whether the Minister will join me in stressing the importance of this very simple message: “If you beat, coerce, humiliate and abuse your children’s mother, you waive your right to be their father until the moment the non-abusive parent decides otherwise.” I am not saying for one second that no one who commits domestic abuse should be able to see their children, but they should not have a right to demand to see them where the non-abusive parent does not wish those children—and the children do not wish—to be put in that situation.

[Alison Thewliss (Glasgow Central) (SNP)]

I thank the hon. Lady for securing this debate and for the speech she is giving, and I send solidarity from all the women’s aid organisations in Scotland, which want this change to be made, too. I understand that in England there is a presumption that the welfare of the child is best served by the involvement of both parents. That is not the case in Scotland, where decisions are taken on the facts of the case. Does she agree that looking at each case individually—looking at the facts of the case, the situation and the risk—is a much better approach than an automatic presumption?

[Jess Phillips]

I totally agree. I can only praise Scotland for the progress it has made in this area. I very much would like the Minister to look at what happens there. I am sure it is by no means perfect, but it is a lot better than what we have here.

New practice direction 3AA requires courts to consider whether those involved in family proceedings are vulnerable and, if so, whether that is likely to diminish their participation in proceedings or—as I said—the quality of their evidence. What are the Minister and the Department doing to review the use of practice direction 12J following its reaffirmation? It has been around a long time. Can we conduct some sort of review of whether it is working or whether it needs updating, and of new practice direction 3AA? Both are key to ensuring that we can rebuild trust among victims of domestic abuse.

The third thing that every single person who has been in touch with me has raised is the issue of special measures in the family courts, which are woefully behind those in criminal justice proceedings. In some cases, the same woman may present at the same courthouse—literally the same building—and be offered different things. She would most likely be greeted at the door of the criminal court by an independent domestic violence adviser co-located in that courthouse, who would have arranged different times for her and would explain the system and help her find the special area for her in the court. She may then walk around the back of the building and go through a different door into the family court, where someone may say, “Oh, there’s Larry—you can just sit next to him, regardless of the years of abuse you have suffered.”

There is absolutely no excuse for the tardiness with which we have reacted to something we have known about for a long time. At least since I came to this place, we have been raising the need for separate rooms, separate arrival times and better evidence-giving opportunities, so that people do not just have a curtain around them but can give evidence from elsewhere via video link. Those are well-trodden practices in our criminal court system, but for some reason in the family court we seem unable to recognise that there is a victim. The fact that family court proceedings are civil proceedings in which both parties are considered equal does not mean that both parties are equal.