Vardags Family Law Essay competition 2023/24 | Kareema Motala

Kareema Motala - BPP University

Domestic Abuse and the Family Justice System In a historical context

This essay will critically evaluate the improvements in women’s rights within the Family Justice System, and the consideration of children’s voices since the Victorian era. Evaluating and analysing what progress has been made to centre these rights. Using legislation, case law and academic commentary, this essay will explore how societal pressures, legislation and policy have influenced changes in the law.

Within early systems women’s rights were non-existent, and family law was extremely unfavourable to mothers. Children’s voices were irrelevant and they were subjected to abhorrent conditions. Where child disputes arose between parents, there was a bias against the mother and domestic matters were considered not for public interference. It was readily accepted, even encouraged that a woman was a ward of her husband, this was known as the ‘doctrine of coverture’. There was no recourse for a woman to divorce her husband, however, s.27 of the Matrimonial Causes Act had a low threshold allowing the husband to divorce. Developments in the law, decades later, brought about changes that allowed women basic rights within the family. The famous decision in R v Jackson established that a husband could no longer lawfully imprison, beat, or chastise his wife.

In the late 1800s, women had no parental rights and fathers were seen as the ‘owners’ of children. Caroline Norton, a victim of domestic violence, sought to have, the Custody of Infants Act enacted. This laid the foundations for the Guardianship of Infants Act which established the principle that mothers, and fathers have equal rights with respect to their children. This however did not restrict the rights of abusive fathers; a court would only remove a father’s rights where the child had been raped, or the father was a homosexual, known as the ‘fortitude test’. Feminists played a significant role in women’s rights, this was recognised by Sir James Munby who paid homage to the suffragettes, whose movements stretched far beyond the right to vote. Moreover, he believed the ‘Victorian view of the man was as a prepotent and the woman as essentially frail and weak’. Without these women pioneering for equality, it’s difficult to ascertain where the rights of women and children would be today.

As society moved into the 1990s, it moved to new ‘norms’ where some pinnacle legal changes took place. This resulted from changing family dynamics, where multiculturalism played a significant role. The Family Law Reform Act  removed all remaining distinctions between children born to married and unmarried parents. The Children’s Act 1989 set the foundational law that heavily governs today’s approach within the family judicial system.

This was a shift away from parental rights and towards the ‘welfare principle’ which manages what local authorities; courts; parents and other agencies in the UK should do to safeguard children. In this period there were also significant changes in divorce law and greater rights were given to victims of domestic abuse¹⁶. Greater rights were granted to women to remain in the matrimonial home; her right to ancillary relief; other changes, like the right to equal pay. Additionally, women’s basic protections were being recognised in other areas of law, with case law setting precedents that were long overdue. It was not until 1991 in the case of R v R that marital rape was made illegal. The developments during this time were not only significant but essential.

All of the aforementioned developments led to what is known as the family justice system. Its function purports to arbitrate on family law issues covering a range of issues, from contact disputes to financial agreements. The role of the family court in family life is often debated; one view is that it is to protect, adjust and support. The feminist’s view is that the law is male and family law merely enforces the patriarchal system that oppressed women for so long.

The issues within the family justice system were analysed in the Family Justice Review, which involved a major examination and scrutiny of the family justice system. The review identified two major issues, the first being delays in proceedings and the second being adversarial proceedings. The response to this review was that the government sought to have ‘a system with children’s needs at its heart’. Following this review, the government introduced the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), seemingly producing legislation that would directly regress the review’s aims. LASPO greatly restricts access to justice as legal aid in these cases is only available where a person, ‘has been, or is at risk of, domestic abuse’. The criterion to be considered under this exception, has strict limitations and restrictions. Some of these restrictions were successfully challenged in R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice who petitioned against the legality of the twenty-four-month period, to provide precise information. Despite this success, it remains difficult for victims of abuse who do not report through fear, disproportionally affecting women. The impact of the cuts to legal aid has led to the inevitability that both mother and father will be forced to represent themselves, causing various issues, such as costs; time and failure to follow practice directions.

Despite all of these slow but revolutionary changes, it is still evident that the family courts have difficulties understanding domestic abuse. It was not until Re L; Re V; Re M; Re H that domestic abuse was viewed as a matter the court needed to consider when making child arrangements. Following this case, the new way of dealing with allegations of abuse was through ‘fact-finding’ hearings. This however brought about difficulties, as cross- examinations could be performed by those alleged abusers. This subjected women, to sometimes hours, of interrogation by their ex-partners; shockingly this was still permitted until July 2022 despite the legal protection of ‘special measures’.

Recent research suggests, that ninety per cent of victims still don’t get support through the family courts. More concerningly, research shows that women risk losing access to their children for bringing up abuse concerns. This is often coupled with an allegation that the victim is the perpetrator of ‘parental alienation’, defined as a parent being ‘unjustifiably negative’ towards the other parent. This theory was created by child psychologist Richard Gardener, who has been challenged by academics for his links with paedophilia. The court’s determination to enforce ‘shared parenting’ with an abuser arguably can take priority over the concerns for the safety of women and children.

The Domestic Abuse Act 2021 was created to tackle the epidemic of violence against women and girls. This legislation sought to put all domestic abuse issues within one legislation and was brought in at the height of the pandemic. Research by Refuge reported ‘an increase in the numbers … between 25% and 700% compared to pre-lockdown levels’. This response from the government has been the most radical for decades. However, without a consistent judiciary that fully understands domestic abuse, practical application will not be achieved and will continue to put women at risk.

Children have historically had very little say or input into their upbringing, and whom they live with or spend time with. In 2001 the government created the Children and Family Court Advisory and Support Service (CAFCASS) this service is in charge of ensuring that children’s interests are properly represented in court. These court social workers will provide the court with insight into the family usually by way of s.7 reports. Despite children showing apparent reluctance to spend time with an abusive parent, contact can still be ordered. A poignant channel 4 dispatches documentary ‘Torn Apart Family Courts’, enlightened the general public on the unfathomable and harrowing reality women and children face. In this documentary, children are seen being forcibly removed from their mothers, hysterically begging not to be taken.

In the most serious of cases, court-ordered contact has resulted in the murder of 48 children over 20 years. Campaigns are now being initiated by a number of charities such as Women’s Aid and Action for Children campaigning for children to be recognised as victims of abuse and get support. In the recent case of R v Malt, the father killed his daughter after reporting she was a victim of domestic abuse. Counsel sought to highlight the ‘abuse of trust’ in parental and quasi-parental relations, and to recognise Lauren Malt as a child victim of abuse. However, the Court of Appeal did not clarify this issue and merely mentioned that authorities relied upon did not involve murder. This displays a clear reluctance to shift away from established case law and seek to ascertain the child’s views and needs.

Overall, women’s rights and children’s voices have changed significantly since the Victorian era albeit these are now widely accepted as basic rights. The difficulties the court has in deciding the fate of families is by no means a position that should be envied. The balancing act of meeting all the needs and wants within a family dynamic is an impossible task. The issues of women’s safety date back as long as history permits, and the current political climate have put domestic abuse in the limelight. However, it is difficult to ignore the patriarchal undertone that appears to govern the family justice system still. There is a significant need for practical application within the family justice system to protect those most vulnerable. It remains to be seen how or if the current legislation and political noise will impact women’s and children’s rights in the decades to come.

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Bibliography

Cases

Beckford [2014] EWCA Crim 1299

Clifford [2019] EWCA Crim 114

R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91

R v Jackson [1891] 1 QB 671

R v Malt [2022] EWCA Crim 1720 R v R [1991] 4 All ER 481

Re L; Re V; Re M; Re H [2000] 2 FLR 334

Legislation

Children’s Act 1989

Civil Partnership Act 2004 Custody of Infants Act 1839 Divorce Reform Act 1969 Domestic Abuse Act 2021

Domestic Violence and Matrimonial Proceedings Act 1976

Equal Pay Act 1970 Family Law Act 1996

Family Law Reform Act 1987 Guardianship of Infants Act 1886

Legal Aid, Sentencing and Punishment of Offenders Act 2012 Matrimonial Causes Act 1857

Matrimonial Causes Act 1973

Youth Justice and Criminal Evidence Act 1999

Books

Herring, J ‘Family Law’ (10th Edn, Pearson 2021)

Levit N & Verchick R Feminist legal theory: a primer (2nd Edn, New York University Press 2006)

McKie L, Callen S ‘Understanding families – a global introduction’ (2012 Sage publications)

Sir Blackstone W Commentaries on the Laws of England in Four Books (vol. 1, 1753)

Tweedale R et al ‘Understanding Gender-Based Violence An Essential Textbook for Nurses, Healthcare Professionals and Social Workers: A Radical Feminist Legal Analysis of Child Arrangements and Domestic Violence’ (1^st Edn, 2021 Springer)

Wagner A Voices of Victorian England (Greenwood 2014) Journals

Barnett A ‘Contact at all costs? Domestic violence and children’s welfare’ (2014) CFLQ 439

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(2002) 11 Columbia J Gend Law 175

Eekale J ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 2 Flynn D ‘The Three Phases of Immigration Policy and the Family in the Post-War Period: What Has Been Driving Change?’ (2014) 28 IANL 11–26

Miles, Joanna et al ‘When Exceptional is the Rule: Mental Health, Family Problems and the Reform of Legal Aid in England and Wales’ (2012) CFLQ 320

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Other Sources

Action For Children ‘Domestic Abuse; Keeping Children Safe’ accessed 5 January 2023

Dispatches, ‘Torn Apart Family Courts Uncovered Dispatches’ 2021accessed 15 January 2023

Domestic Abuse Commissioner ‘Improving the family court response to domestic abuse’ 2021 accessed 4 January 2023.

Dr Rachel Watson, ‘Gardner’s Parental Alienation Syndrome: The Shameful Golden Goose of the Family Courts’ accessed 20 January 2023.