Published: 13th January 2017
The Justice Secretary Liz Truss has called for the family courts to follow the criminal courts inbanning the cross-examination of victims by ex-partners who have previously been violent to them.
This comes following an investigation by the Guardian newspaper which revealed that in private hearings women are often cross-examined by their abusive ex-partner. A review has been announced in order to prevent abusers from being able to directly question the victim of their abuse within the family court system.
Sir James Munby, the president of the family division, stated that a ban regarding this matter would be welcome but that it would need primary legislation and ministers would need to make the decision. He said that a reform of the family courts was needed as they are very far behind the criminal courts in this respect.
A senior Ministry of Justice source commented that ‘[t]his is a matter we are extremely concerned about and looking at as a matter of urgency. We need to find the most efficient way of making this happen.’
As well as meeting regularly, Truss appears to share Munby’s concerns about perpetrators of domestic abuse being able to intimidate their victims within the courts.
The investigation found that, due to the abuser being allowed to cross-examine their victim, they were effectively able to continue the harassment, intimidation and control of the abusive relationship.
The evidence that the Guardian collected was from both ongoing and completed cases, and from interviews with lawyers, case participants and court officials. The evidence revealed how the family court:
Women that were cross-examined during their court hearings risked being held in contempt of court as they would have been discussing what happened in the private court hearings had they spoke out. Women that did speak out said that they wanted to make it clear that the system was failing them.
One victim described how the system allowed her violent ex-husband to cross-examine her for over two hours in a private hearing, despite having previously been issued with a restraining order by the criminal courts that was in place to prevent him from coming into contact with her after aviolent assault.
Welcoming the potential changes to the system, the woman said that being cross-examined by her ex-husband ‘was just as bad as being back in a relationship with him. I welcome changes to the system to stop other women having to endure what I and hundreds of others go through in the family courts.’
Despite guidance known as Practice Direction 12J, which magistrates and the judiciary should follow when involved with domestic violence cases, a quarter of women questioned in research by Women’s Aid have been cross-examined by their ex-partner. The guidance is in place to stop violent or abusive ex-partners from interrogating their ex-partner, with the judge being required to step in if this direct interrogation does occur.
An emergency review of the system would be welcomed by Zoe Dronfield, who runs the domestic violence victims support group ‘I Want My Mummy’ (IWMM), but did suggest that previous discussions regarding the matter had taken place before, with no further action.
Dronfield said ‘[t]here is an epidemic of people affected by this, but because of the secrecy the family courts operate under and the gagging orders imposed, they are not heard. I speak to hundreds of women who have been subjected to cross-examination by a perpetrator of violence and abuse… this is now a massive problem.’ She added that the family court processes ‘facilitate abuse as opposed to helping the very people it should be helping’.
The number of people representing themselves has increased since the cuts to legal aid in 2012, and figures released in October 2016 by the Ministry of Justice state that in 80% of cases in the family court there isat least one individual without a lawyer.
At the moment, legal aid is available to proven victims of domestic violence, as long as they pass a threshold test. However, in a judicial review taken by the group ‘Rights of Women’, it was found that the test criteria is too restrictive. This triggered a review into accessing legal aid for domestic violence victims by the Ministry of Justice, with a report on the outcome of the review set to be released this year.
If you are experiencing domestic abuse and you are unsure what options are available to you then K J Smith Solicitors can help. Our team of family law specialists are here to listen and advise on the best course of action to take in order to keep you and your family safe.
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