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WHEN FAMILY LAW LITIGATION AMOUNTS TO ABUSE

Perpetrators of coercive and controlling behaviour will stop at nothing to cause their victims, harm, distress, alarm and hurt. Their methods are wide and varied and may range from innocuously deploying a certain look, to using certain insults which invariably precede actual physical violence, to even wearing certain clothes. Some even use the legal system to exert emotional and psychological control over their victims. Perpetrators have been known to make false allegations about their exes or their exes’ new partners, even in cases where it is the victim who has issued the application. Also because the family law system is essentially an adversarial one, victims’ allegations have to be proved on ‘the balance of probabilities’ and victims are required, as a matter of procedural law, to be cross-examined in relation to their allegations, even in cases where there is a multitude of corroborative or independent supporting evidence. In that sense the Family Court and its processes are more than competent to ‘retraumatise’ victims. The Domestic Abuse Commissioner is seeking to stop that, or at least to investigate it thoroughly, with a view to ameliorating adverse impact or consequences for the victims, many of whom are children.

This autumn, the Commissioner will launch an innovative  scheme to collate information on how domestic abuse cases are managed, litigated and processed. One problem of course, relates to the reduction of legal aid, which has made it all but inaccessible in cases where victims have moderate financial resources. It is obvious that the experience, expertise and energising knowledge of specialist family law litigation solicitors, is itself a ‘protective measure’. The introduction of QLR’s (Qualified Lega Representatives) to ask questions on the behalf of the Protected Party (or the Prohibited Party) is obviously a step in the right direction, but in my view it doesn’t go far enough. QLR’s are not allowed to give legal advice and their responsibility is to the Court, as opposed to the Protected Party (or the Prohibited Party).  In these circumstances, the Commissioner’s plan for a ‘new mechanism [for] funding to ensure victims and survivors can access specialist support and legal aid’ is a welcome, if somewhat overdue one.

The Domestic Abuse Commissioner is calling for wholesale change in the Family Court. This is a welcome summons, not least because family law litigation can sometimes amount to abuse in its own right. This can place victims and their children at very serious risk of continuing harm., which is the opposite of the ‘culture of safety and protection from harm’ which the Family Court should embody.