Thousands of parents claim domestic abuse to access public funding and stop their partners from seeing their children, according to a father’s rights charity.
The number of domestic violence claims rose sharply following cuts in public funding in 2014, allowing access to legal aid in family matters involving domestic violence.
The government’s objective by introducing the changes to access to public funding was to reduce the reliance on family courts and encourage the parties to seek mediation in the first instance. However non-molestation orders have reportedly increased by 30%, while mediation has seen a sharp drop.
A number of applicants allegedly sought non-molestation order route and alleged abuse that does not have to be true to access legal aid. The orders are designed to protect victims of domestic violence from further harm. The vast majority of applicants alleging domestic violence and seeking immediate protection for themselves and the children are women. They are a critical tool in genuine abuse cases, however, critics argue that the way they are administered in the family courts, leaves them open to exploitation.
Non-molestation orders are often sought at court in absence of the abusive party and without allegations of domestic violence proven in order to protect the victim as much as possible. The required level of evidence can relate to matters involving verbal abuse and unwanted correspondence, for example, text messages. In obtaining the order, the applicant is in scope for legal aid for the proceedings, including further family law matters, which may not automatically be granted to the respondent. The respondents often end up fighting their case at court unrepresented.
On securing the order, a number of parties can be notified about the order against the respondent, including the police, local council and school, leading to the parent being separated from the child. The effect of the order can restrict a parent from spending time with the child as well as delay the process of arranging such contact.
The imperfect approach
The non-molestation proceedings can take a long time, with a fact-finding hearing usually taking place about six months after the initial application, when the evidence of the applicant’s claim is heard. Sir James Munby, the current president of the High Court’s Family division has stated that the judiciary had realised that “a wrongly granted without prejudice notice order sets the tone of proceedings thereafter”.
Domestic violence allegations can have a long term effect on the whole family. If the applicant further issues child arrangement proceedings, restrictions like supervised contact may be placed on the other parent. Taking approach in contesting the allegations of domestic violence is likely to raise hostility between the parties, resulting in higher legal costs as the parties are unlikely to be able to agree on matters.
Finding the balance
The courts are regularly dealing with numerous applications involving allegations of domestic violence. The spectrum of cases in which non-molestation orders can be granted range from the most severe domestic violence allegations to verbal abuse and unwanted correspondence. At the hearing, the judge considers all the circumstances, including any need to secure health and safety as well as well being of the applicant and any children.
While the impact of false allegations can be severe, the orders are considered a crucial asset in protecting the victims of domestic abuse. A number of charities, including Women’s Aid are in the view that “the orders are only granted by the courts in cases where a judge is satisfied an order is required to keep a victim of domestic abuse safe”.
The family courts have been criticized by Women’s Aid for their ‘pro-contact’ approach. Research conducted by the charity as well as by Queen Mary University of London has put it that the approach priorities ensuring contact rather than safety, putting mothers and children at risk of further harm.
Child arrangements can come with a substantial delay after securing the order. The courts are struggling with finding a balance for the child to have access to both parents in the safest way, particularly in the interim period whilst the non-molestation order proceedings are ongoing.
The charity Families Need Fathers have been campaigning against alleged abuse of non-molestation orders. They argue that proceedings can take months to be resolved, negatively affecting fathers’ contact with children due to the effect of the order. A number of fathers contest the raised allegations and sometimes they are not proven. They contest the scope of recent University of Warwick research which concluded that courts do not discriminate against fathers. The research found that although initial child custody was nearly always granted to the mother, the fathers were nearly always granted access to the child. This included direct contact or indirect contact on the telephone or via Skype.
In a keynote speech in the charity's conference last month, incoming family court president Sir Andrew McFarlane proposed that the issue needs to be looked into and ‘standing temporary orders’ need to be introduced to speed up family justice. His view is that the facts of each case should be established more quickly, as the arrangements for children cannot move on until the facts are clarified and determined by the court.
The suggested approach can identify the necessary safeguarding issues and put the necessary protective measures in place where needed more quickly, allowing for all of the parties to move on to the new family arrangements in a safe way.
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