16 Days of Activism: Different Court Approaches to Domestic Abuse

December 10, 2021

Robert Povall

Mixed Messages

Human Rights Day is upon us and, sadly, so is the end of the 16 Days of Activism against Gender-Based Violence campaign. But like they say, as one door closes…

In this article, I intend to look to the future and discuss how we can better treat and protect survivors of domestic abuse by breaking down what I consider to be inconsistent approaches across criminal and family law and, indeed, within the different areas of family law itself.

I shall also consider a recent case of mine which made me question whether the statutory time limit in public law proceedings is no longer fit for purpose in an age where, notwithstanding the significant progress made in our awareness of domestic abuse, the psychological fabric of both perpetrators and survivors is not yet fully understood. Indeed, will it ever be?

Crime vs family: Failing to protect or failing to be protected?

Professor Marianne Hester, an internationally recognised researcher on domestic abuse has contributed significantly to our understanding of domestic abuse within the court system. Of note is her Three Planets Model, a study into the way in which domestic abuse is treated inconsistently within different jurisdictions.

Her metaphor is this: three planets to represent the vastly contradictory ways in which survivors of domestic abuse are treated, specifically:

1. Domestic Violence Planet: domestic abuse recognised as a crime. Perpetrators’ actions considered unacceptable and to be punished. Protection available to the victim e.g. restraining, non-molestation and occupation orders.
2. Child Protection Planet (care): greater emphasis placed on the victim as responsible for ending the abuse s/he is suffering. If they do not remove themselves and the child(ren) from the abuse, they are seen as failing to protect. Child(ren) may be removed, and victim left vulnerable and alone with the abuser.
3. Child Contact Planet: less emphasis on child protection and more on the concept that the child should have a relationship with both parents. Abusers may be deemed ‘good enough,’ victims previously advised to distance child(ren) from the abuser as they are a risk is now required to promote contact which can be both confusing and frightening.

It is entirely possible that a victim may find him or herself on each of these planets in his or her lifetime. They may face state intervention such that s/he removes him or herself from an abusive environment and pursue criminal/injunctive proceedings, only to then find themselves having to set aside those worries as they are ‘historic’ or not relevant to contact. Worse still, they may find themselves accused of parental alienation for struggling and at times failing to engage with this process.

Case Study

I recently represented a mother in public law proceedings which included an application for a placement order. For non-family practitioners – this is where a local authority seeks the court’s permission to dispense with the parents’ consent to place children up for adoption.

The mother had long struggled to accept she was a victim of coercive control as her understanding of domestic abuse was that it was only physical. She had left the father and had relocated but he had found at her sister’s property (where she was living) which was seen by a professional. The mother was not there and this was the first and only time the father was seen.

At a contested final hearing, the mother conceded the care order but opposed the plan of adoption. Her case was simple – she requested more time to prove she had separated from the father and that she can protect the child from him. There were no concerns over her ability to meet the child’s basic care needs.

The local authority and guardian submitted that the child required permanence at the earliest opportunity and asserted that, to put it simply, the mother had done too little, too late. The court was satisfied with this and granted the placement order.

Statutory time-limit and domestic abuse cases

For non-family practitioners, section 32 Children Act 1989 requires all care or supervision proceedings to conclude within 26 weeks from issue. The court may extend under certain circumstances.

It is right that all children cases, particularly public law proceedings, should conclude without delay and all parties should work efficiently and diligently to achieve this.

But what of cases where the indicators of change begin late in proceedings? There is no formula or time limit as to how survivors recognise and seek support for domestic abuse. In fact, I argue that cases which start with the removal of child(ren) may in fact delay this process as victims are then left vulnerable and alone with the perpetrator who can further develop their ‘us against the world’ narrative to the victim, thereby continuing the cycle of abuse.

I propose it is high time to review our approach to domestic abuse in care proceedings starting with the statutory time limit to allow greater flexibility and a more realistic approach to survivors of domestic abuse, especially in cases where placement orders are sought.

Conclusion – the way forward

Professor Hester’s findings, which mirror my own experience, is clear evidence that there is a pressing need to review how domestic abuse is addressed in family law.

Both the criminal and injunctive jurisdictions are on the right track but unity between these areas with public and private law is required so that the same message is conveyed – domestic abuse is detrimental not only to children’s wellbeing but to its victims who will undoubtedly function and act in a way very differently to what is expected from a ‘reasonable’ person.