A recent Guardian investigation has highlighted the ordeal many victims of domestic abuse are forced undergo in family courts across the country.

A serious problem

A number of women have spoken to the Guardian, giving ‘graphic descriptions of the “torture” of being questioned by abusive men’ in court.

This problem is well known to solicitors working in family law.

Following the cuts in Legal Aid, it is now common-place for parents to be representing themselves in court without the benefit of a legally qualified advocate. The court system has not caught up with this reality and is still built around the ideal scenario of both parents having legal representation. When both parties have legal representation, then one party’s solicitor or barrister can then cross-examine the other on their evidence. The problem comes when one party does not have a solicitor or barrister to question the other.

On the one hand, it is important to ensure the justice is done. A mother may be alleging serious domestic abuse which, if true, would mean that it is not safe for the children to spend time with him. That evidence has to be tested in court. It would not be fair to the father or the children if allegations of that nature were accepted without question.

On the other hand, it is hard to over-estimate how cruelly distressing it is to expose a mother to aggressive questioning by a father who had abused her over many years. She may never have seen him since they separated. Facing him in court could be too much for her to bear. She may avoid court so she does not have to face him and it would be hard to blame her.

Possible solutions

One answer may be the Judge stepping in and questioning the mother. This would protect her from facing her former abuser directly. This poses some problems of its own as it involves the Judge removing their ‘impartial hat’ and thinking and acting like an advocate for one party. Another alternative may be government funding for legal representation in hearings where cross-examination is necessary, but that won’t come cheap.

The President of the Family Division, Sir James Munby, has released a statement on the judiciary website. He acknowledges that “Reform is required as a matter of priority” and he “would welcome a bar” on alleged perpetrators of domestic abuse questioning alleged victims. He blames the government for a slow response in implementing change he has been advocating for years.

Time will tell whether the government will give the time to addressing this important issue. For victims of domestic abuse, reform cannot come to soon.

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