January 2017 heralded key discussions amongst government officials surrounding the need for an emergency review to explore how those accused of domestic abuse can be prevented from directly cross-examining their victims in family courts. The government plan is to ensure that family courts are consistent with criminal courts, where the practice was abolished under the Youth Justice and Criminal Evidence Act, 1999, whereby victims of sexual abuse are not allowed to be cross-examined by the alleged perpetrator. By and large family court cases are held in private in England and Wales; the testimony of witnesses, documentary evidence, expert statements and judicial decisions are mostly delivered outside of the public domain.
Research by the all-party parliamentary group on domestic violence found that 55% of victims had no access to special measures in the family courts. Special measures such as applications for intermediaries, pre-recorded evidence in chief, communication aids and TV links are designed to ensure that vulnerable or impressionable witnesses give the best possible evidence. Meanwhile, it is reported that approximately 70% of separation and child contact cases involve some form of domestic abuse.
These statistics indicate that an extremely high proportion of victims who were subjected to domestic abuse do not have access to the appropriate court infrastructure which is required to protect them. Recent research also indicated that the family courts:
l Allow men with criminal convictions for abusing their ex-partners to directly question them – sometimes repeatedly.
l Are able to ignore restraining orders imposed by the criminal courts to protect the women.
l Allow fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers. l Can ignore expert evidence that women are at risk from abusive men.
l Fail to adequately protect vulnerable victims of domestic and sexual abuse.
The President of the family Court Division, Sir James Munby, has been outspoken in his support for a ban on direct cross-examination stating that the practice should be banned “as a matter of priority”. In my role as a Family Solicitor for Duncan Lewis, I was recently involved in a case where we represented a mother in private law proceedings in respect of the abusive father’s application for live with and spend time with. Due to the changes in Legal Aid the applicant father was a litigant in person. As such, when the matter was listed for a two day contested final hearing, the same abusive father who had subjected my client to acts such as: kicking and punching her repeatedly; throwing a plate at her causing injury to her hand; ripping a clump of hair from her scalp and countless acts of verbal abuse spanning 8 years; was permitted (much to my client’s terror) to cross-examine her despite there being findings made against him in respect of domestic abuse.
Needless to say, my client was horrified that her perpetrator was allowed to put questions to her making her feel like she was being subject to further abuse in the very place where she was seeking safety. Whilst the judge dealing with matter did not permit any unnecessary or irrelevant questions being put to my client, stopping the father a number of times from ‘badgering’ my client, she still was traumatised by the experience. Whilst on the whole I feel these changes are a positive step, all individuals have a right to defend allegations made against them. When an individual is accused of domestic abuse and do not fall within the threshold for Legal Aid, but wish to contest their innocence yet cannot afford representation, this change in law would prevent the accused from making their case. Should they not be given the same opportunity as the person who is seeking these allegations against them? Should they not be given the opportunity to cross examine? This is something that the Courts and lawyers will continue to be challenged by.
Duncan Lewis Family Solicitors
Headed by 18 Director Solicitors, and boasting over 40 Law Society Family & Childcare Panel Specialists, the Duncan Lewis Family & Childcare department are specialists in all aspects of family and private/public children law matters from offices across London and throughout the UK. Duncan Lewis is recognised by Legal 500 2016 as a leading family practice. We have also acquired a number of kite-marks which are testament to the quality of the specialised work our staff undertake. We were shortlisted by Jordan’s Family Law Awards 2015 for ‘Family Law Firm of the Year’. If you have any family related queries or require representation please do not hesitate to contact our team of expert solicitors on 0333 772 0409.
