Domestic Abuse Victims in Family Law Courts

Keir Starmer Excerpts

Thursday 15th September 2016 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I, too, congratulate those who secured this debate and everybody who has spent so long working on this issue—in particular, the all-party group on domestic violence and Women’s Aid on raising the issue of how domestic violence cases are dealt with in the family courts. The statistics and examples of domestic abuse, some of which have been given this afternoon, are so continually shocking that we have a duty to come back to this debate over and again.

I do not intend to repeat anything anybody has already said. I want to address two issues: first, what has been happening in the criminal courts to make the position better, and to raise the question of why some of that has not been done in the family courts; and secondly, to go to the question of abuse of process, where individuals are clearly using the civil courts for a purpose they were not intended for.

The criminal courts are not perfect. There are all sorts of problems still with our criminal courts in dealing with domestic abuse, but anybody who has worked on this—people across the House have done so—will recognise that real strides have been made that make a real difference in relation to the criminal approach over the past 10 to 15 years. I want to outline why I think that has happened, because this is a time to reflect on the processes in the family courts and to see whether some of that can be replicated.

The first thing that happened was that we began to count the cases. Back in 2002-03, nobody knew how many domestic abuse cases were going into the criminal court, so we could not begin to have a policy or strategy. We started counting the cases, and if the number of cases where litigants in person before family courts is not being counted now, that needs to start, and we need to understand how many of them may be victims of domestic abuse. So counting is the starting point.

We then need a policy to understand, so that everybody who plays a part in the process has a policy that helps them make the right decisions in the area they are responsible for. That happened in the criminal process about 10 or 12 years ago—those policies began to be rolled out, and they have been improved over the years. A policy on its own does not do the job, so we need a strategy, too, that makes it clear what we are trying to achieve and is proactive and forces things to change. We also need leadership: people who are prepared to go out there and say, “We’re going to change what’s going to happen.” All that has helped in the criminal sphere, with lots of different people leading in different ways. When we put it all together, it is clear the position has undoubtedly changed, so that it is now unrecognisable.

I will go through some of the features. Independent domestic violence advisers and independent sexual advisers are extremely good and are relied on by victims to help them through that part of the process. Specialist courts for domestic violence made a real difference, where everybody in the courtroom was trained and understood the issues; there were separate courts and lists, and the environment made it easier to deal with domestic violence cases. There was better co-ordination and support, with groups like Women’s Aid and many others out there to provide the support victims need for the journey they were going to go through in the criminal courts. And then there were practical measures that took the strain off the victim.

It is particularly important for a 999 tape, recording the person who phones the police to report what is happening, always to be secured, and for a police officer to arrive at the scene wearing a body cam. Those two bits of evidence will secure a conviction in almost every case of domestic abuse. It is amazing that they are still not the norm even in the criminal sphere. With the 999 tape and the body cam, it will almost certainly be possible to prove a case without putting a strain on the victim by requiring him or her to make that case in court.

Then there are special measures. When I went along to the all-party parliamentary group on domestic violence and heard some of the evidence about family courts, I was struck by the fact that what I was hearing simply would not be tolerated in the criminal courts any more. Special measures are a norm in the criminal courts, and it would be thought to be the duty of the prosecution, the defence and the court to ensure that they are in place.

Some of the changes that have taken place have undoubtedly improved the situation in the criminal courts, although I am not pretending that it is perfect, and I am not suggesting that there is not much more to be done. I think that those improvements came about because a number of individuals decided to listen to what people were saying to them. My hon. Friend the Member for Hove (Peter Kyle) mentioned the terrible case of Jane Clough. Her parents, Penny and John, came to see me, and I just sat down for the afternoon and let them tell me what had happened to them during their journey through our courts. It reflected on the organisation that I was running and it reflected on the criminal justice system, of which I am very proud, but I listened, and other people listened. We need to listen, and that is why today’s debate is so important.

We also need to be non-defensive. In my experience of criminal justice, the moment our organisation or system is criticised, we circle the wagons and try to protect what we think is good, rather than accepting that it might not be so good. It is necessary to listen, to give a non-defensive, open response, and then to have an absolute determination to change things. Jane’s parents asked me to go with them on a journey to change some of the things that had gone wrong for them, and I am proud to call them friends and co-advocates on that continuing journey.

There are real lessons to be learnt, and when I say that I look, obviously, to the Government Front Bench. There are lessons to be learnt about what has happened in the world of criminal justice in the last 15 years and to ask searching questions about why some of that cannot be replicated in family and other courts—starting, as I have said, with listening, non-defensiveness and an absolute commitment to change.

The second point that I want to make concerns the abuse of process, an issue that I think is rising on the agenda. Perpetrators of domestic abuse use our courts—both criminal and civil, but it is on the civil courts that the torch has not been shone—to continue the perpetration of control and harassment of victims. I pay tribute to Claire Waxman, herself a victim of harassment. She and Voice4Victims have raised this issue on numerous occasions.

There are two types of abuse of process. First, there are the individuals who bring proceedings in which they have no legitimate interest: they are doing it simply to ensure that the person whom they have been stalking or harassing is forced to come to court to strike out their claim. Because these are people with no legitimate interest, the courts will strike out the claim when they get to grips with it, as a vexatious claim. However, the victim will have to go to court to argue that it is vexatious, and that is all that the perpetrator wants: for that person to come to court. That is what happened to Claire Waxman, and it has happened to other victims.

This problem could be solved by Christmas. Again, I am looking straight across at the Government Front Bench. It ought to be possible for someone working for the senior judiciary to devise a way to ensure that such cases are subject to a special strike-out procedure that does not require the victim to go to court and take the initiative, and some third party does it instead. I honestly think that a month or two of hard work, and some real courage and determination, could produce a system whereby a practice direction could be issued and the problem could be put to one side.

The second type of abuse of process is more difficult to deal with. In these cases, the perpetrator has an interest—a child, for instance—and it is therefore not possible to say that that individual simply should not be allowed to be in court at all. In those circumstances, it is a question of looking at special measures, support and different ways of arranging family and other courts to ensure that they are not used with ulterior motives, because there is growing evidence that is happening. These are difficult cases, but it must be possible to provide support for victims, special measures and, indeed, a more proactive role for judges. A big change in the criminal courts was that judges began to be much more proactive and to say, “This is my problem. I must deal with it. It is my duty to provide a better environment for victims on their journey through our courts.”

What today’s debate throws up is that these issues are not going to go away. They need to be solved, and I think they can be solved across the House, but that will require listening, non-defensiveness and commitment to bringing about real change. Real change has already happened in the criminal sphere; it can happen in the family courts as well, and it need not take 15 years if lessons from one jurisdiction are borrowed by the other.