The Impact Of The Harm Report
What is the harm report and what, if any, impact will it have on the family justice system? Timms Family Law Solicitor, Laura Such discusses in her latest blog…
What Is The Harm Report?
The full report is entitled ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ and is published by the Ministry of Justice having been put together by an expert panel.
It looks at the way in which the family justice system in private family law matters responds to domestic abuse and protects victims of domestic abuse who are involved in proceedings. It also looked at the outcomes from those proceedings.
The report aimed to compile a great deal of research. In preparing the report the panel compiled information from individuals with direct experience of proceedings and from organisations with involvement with the family court.
Domestic Abuse – A Key Thing To Note!
Often when I speak to people, they think domestic abuse is physical violence. It is not. Domestic abuse encompasses all types of abuse; whether this be emotional/psychological abuse, financial abuse, physical abuse or sexual abuse.
Why Is This Important?
Last year 54,920 private law Children Act cases started in the family courts. Of those cases, samples show that in between 42%-62% of those cases there were allegations or findings of domestic abuse. It is widely acknowledged that domestic abuse is harmful to children – whether they are directly witnessing abuse or they are generally exposed to domestic abuse due to the impact it has on the adults parenting them.
What The Harm Report Found
Essentially, the report found that the family justice system needs fundamental change. The evidence found that domestic abuse within proceedings is often minimised. The court process is scary for victims of abuse and not enough is done to protect them through the process. There is a problem inherently in that the process is adversarial. This means there is a dispute, and that dispute needs resolving through the presenting of evidence and so this causes conflict. The report found however that individuals are often not on an ‘even playing field’ and this only increased in cases where individuals are representing themselves.
The report also identified that often the proceedings are dealt with in isolation, however frequently, there are other professionals involved with the parents and the children and their views may be relevant.
The evidence suggested that often the voices of the children went unheard for a multitude of reasons. These included a lack of time for professionals to build up a relationship of trust with the child to enable the child to speak willingly, and a lack of time and training for that professional to work out what was going on in often complex circumstances.
Finally the system is under-funded with a lack of resources to address these problems.
What Changes Are Recommended?
The recommendations incorporate changes which need to come from Government level, but also things that practitioners can be doing on the ground. Importantly, we must change the culture around domestic abuse in private law proceedings. The report in summary recommends:
1. A statement of practice to be put in place ensures domestic abuse cases are approached in the same way
2. A review of s.1(2A) of the Children Act 1989 which says that the courts should presume that the involvement of each parent will further a child’s welfare, unless there is evidence to suggest that such involvement would place the child at risk of suffering harm
3. The current programme that private law applications follow should incorporate a way to identify domestic abuse and manage this within proceedings
4. The voice of the child needs to be explored
5. We need to ensure safety at court to protect victims of domestic abuse and to bar direct cross-examination by perpetrators where there is evidence of domestic abuse
6. There needs to be communication nationally and locally within the Court system around this particular issue
7. We need more investment in the court system, CAFCASS, Legal Aid, special assessments Domestic Abuse Perpetrator Programmes, supervised contact centres, education and specialist domestic abuse services
8. Training to professionals involved in proceedings
9. Further research on the issue
Where Is The Guidance Or The Current Law?
The focus of the report was on the below provisions.
1. Practice Direction 12J of the Family Procedure Rules which was updated in October 2017
The court must identify as early as possible whether domestic abuse is a feature in the case before it. If domestic abuse is present, the Court must then consider the nature of the abuse and any evidence, how the factual elements of the case can be tried fairly, and the impact that the alleged abuse has on the interim arrangements (arrangements put in place during the proceedings) considering the welfare interests of the child.
2. Part 3A and Practice Direction 3AA of the Family Procedure Rules
These provisions set out how the Court can identify vulnerable witnesses and the special measures that can be put in place to protect them during family proceedings. The Court must identify the vulnerability as soon as possible and make ‘participation directions’ if the party’s participation in proceedings or their ability to give evidence, will be affected by their vulnerability.
3. Orders pursuant to section 91(14) Children Act 1989
This section prevents someone from making further applications to the family court without the Court’s permission. The aim is to prevent reoccurring disruption to the family and the child/ children and for victims of abuse, it would protect them from going through the trauma of the family court process over and over.
What To Expect Moving Forwards?
No doubt the Harm Report has emphasised to practitioners within the family justice system to remain alert to features of domestic abuse within private law proceedings. It has also emphasised the need for cultural change from all those professionals involved in the court process.
The legislative change needs to come from the government, and the need for change in this area is gaining momentum. Currently the Domestic Abuse Bill is making its way to the House of Lords. So, let’s watch this space!
Laura Such
October 2020