The justice secretary has set up an emergency review to find the quickest way to ban perpetrators of domestic abuse from directly cross-examining their victims within the family court system.
Liz Truss has stepped in after the Guardian exposed how women are being directly confronted and questioned by violent and abusive men within the secretive court system.
Last week speaking after the Guardian articles Sir James Munby, the president of the family division, said he would welcome a ban on the practice, which is illegal in the criminal courts. But in a statement Munby said any ban would require primary legislation and was a decision for ministers. The senior judge said the family courts lagged behind the criminal courts and reform was needed as a matter of priority. He said he was disappointed at the slow response from ministers.
It is understood Truss has been discussing the issue over Christmas, and wants swift action to bring the family courts in line with the criminal courts, where the practice was stopped via a change in the law.
A senior Ministry of Justice source said on Wednesday: “This is a matter we are extremely concerned about and looking at as a matter of urgency.”
It is understood an emergency paper has been commissioned to examine the quickest way to introduce a ban. “We need to find the most efficient way of making this happen,” the source said. Truss, who meets Munby regularly, is said to share his concerns about how the family courts can enable perpetrators of domestic abuse to continue their intimidation and harassment through the court system.
The Guardian investigation revealed the cross-examination of victims of domestic abuse by perpetrators was one of the ways abusers were able to use the family system to continue their controlling behaviour.
Women who spoke out risked being held in contempt of court for discussing what went on in their private court hearings, but said they wanted to shine a light on what was going on in the system.
Sarah, not her real name, described how her violent ex-husband cross-examined her for more than two hours. He had been issued with a restraining order in the criminal courts to stop him making any contact with Sarah after he violently attacked her. But during a family court hearing in which he was fighting for access to his child, he was allowed to interrogate Sarah. The court eventually ruled that there should be no contact.
Responding to the intervention by Truss, Sarah told the Guardian: “Having been through the family court process for two years and cross-examined by my abuser, I can honestly say it 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.”
In the family courts, magistrates and the judiciary should follow guidance, known as practice direction 12J, when dealing with domestic violence cases. This is supposed to stop the direct interrogation by an abusive man of his ex-partner, requiring the judge to step in instead. But research by Women’s Aid shows that a quarter of women questioned have been cross-examined by their violent or abusive ex-partner.
The research paper for Truss is due to be completed by the end of next week. It will examine whether primary legislation is necessary to end perpetrator cross-examination, or whether it could be stopped through the provision of more legal aid.
Zoe Dronfield, who runs I Want My Mummy (IWMM), a support group for victims of domestic violence going through the family court system, welcomed the emergency review, but warned that previous discussions had ended without any action being taken.
“There 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,” she said.
“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. The family court processes currently facilitate abuse as opposed to helping the very people it should be helping. The courts also seem to be ignoring the practice direction 12J issued with regards to how the court should deal with domestic abuse cases.”
Cuts to legal aid in 2012 have increased the number of people representing themselves. Figures from the MoJ in October 2016 reveal that in 80% of family court cases, at least one individual had no lawyer.
Currently, women who can prove they are victims of domestic violence are entitled to legal aid if they cross a threshold test. But the test criteria was successfully challenged as too restrictive in a judicial review taken by the group Rights of Women. As a result, the MoJ has been reviewing access to legal aid for victims of domestic violence and is due to report on its review this year.
The evidence obtained by the Guardian spanned ongoing and completed cases, interviews with participants, lawyers and court officials. It revealed how the family court:
- Allows men with criminal convictions for abusing their ex-partners to directly question them – sometimes repeatedly.
- Is able to ignore restraining orders imposed by the criminal courts to protect the women.
- Allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers.
- Can ignore expert evidence that women are at risk from abusive men.
- Fails to adequately protect vulnerable victims of domestic and sexual abuse.
Research by the all-party parliamentary group on domestic violence found that 55% of women had no access to special measures in the family courts, where 70% of separation and child contact cases involve some form of domestic violence.
