Allegations of domestic abuse are made in more than half the cases heard by the family courts of England and Wales, the president of the High Court family division said last week. Why are they so difficult to resolve? 

Joshua Rozenberg

Joshua Rozenberg

The answer, as Sir Andrew McFarlane (pictured) explained, is that it is often one parent’s word against the other’s. If there is independent evidence, the courts may have to wait months for it. ‘We need to increase the ability of the court to get information from the police and from other agencies,’ McFarlane told me in an interview for Law in Action on Radio 4.

The number of days on which the family court now sits undertaking family work is 91,000 court-days a year. The best research we have is the allegations of domestic abuse are made in about 60% of all family cases

Sir Andrew McFarlane

That may not be easy. The police, needless to say, are overstretched. And if the evidence is to be found on a mobile phone then downloading it will be costly and time-consuming.

Should the alleged abuser – typically, the father – have unsupervised contact with his children in the meantime? If the court allows this, the children may suffer further abuse. If the court refuses contact and the allegations are not proved to the necessary high degree, then the child’s relationship with a parent will have been damaged for no good reason and restarting it after as long as six months may prove difficult.

Bob Greig of the support group OnlyDads called for a triage system to prioritise cases. ‘If there is domestic abuse and one parent is a danger to the child,’ he told me, ‘it’s in the child’s interests that this is found out really quickly.’

McFarlane, the senior family judge in England and Wales, said the volume of cases made delay inevitable. ‘The number of days on which the family court now sits undertaking family work is 91,000 court-days a year. The best research we have is the allegations of domestic abuse are made in about 60% of all family cases.’

He was sure improvements could be made. One challenge was legal aid: the alleged abuser might not be legally represented. Decisions on contact were often made by benches of lay magistrates and more training would help. Court guidelines – currently contained in practice direction 12J – had been revised twice in the past 10 years and could be further improved.

Earlier this year, the Ministry of Justice invited court users to say how well they thought the family courts were protecting children from abusive parents. More than 1,200 responses were received, 63% representing mothers and 17% on behalf of fathers. Similar questions were asked by an expert panel at roundtable discussions and focus groups.

A brief progress update published last month reported that ‘victims of abuse felt that their experience of family court process (including but not limited to direct cross-examination by their abuser) was degrading and retraumatising’. No surprise there: clause 75 of the recent Domestic Abuse Bill would have put a stop to that sort of questioning. The bill lapsed when parliament was dissolved this month, but the government has promised to bring it back after the election – and it has all-party support.

According to the progress report, court users had also ‘raised concerns about how the family court prioritised the child’s relationship with a non-resident parent over the welfare of the child and the risks to which this could expose the child and other parent’. To protect victims and children from further harm, the panel reported, there was a need to address ‘systemic issues in relation to how risk is identified and managed’.

Does that mean telling judges to take fewer risks? Will fathers see their children less often? Courts can certainly reduce the likelihood of abuse by denying non-resident parents unsupervised contact. But some contact with each parent, however limited, is likely to be in a child’s best interests. Older children may express a clear wish to see a parent who has been abusive in the past. And courts are well aware that allegations of abuse against a non-resident parent may be exaggerated or even fabricated.

On the other hand, the family courts define domestic abuse widely enough to cover coercive and controlling behaviour. Emily Hilton of the NSPCC painted a disturbing picture of children being taught by an abusive parent to lock the other parent out of the house in the rain or to claim that a meal had not been cooked properly by the resident parent and throw it in the bin. ‘Domestic abuse has been shown to have profound emotional and mental health impacts on children and young people,’ Hilton said. They were at risk of having unsafe relationships in the future.

We expect courts to have foresight, but we judge their decisions with hindsight. The consequences of a misjudgment can be devastating – not just for the child but also for the judge. In deciding what is in the child’s best interests, family courts need all the help we can give them.