How the legal system deals with cases where individuals have suffered domestic abuse is a matter of critical importance. In England & Wales, family law provides a framework to protect survivors and ensure they receive the justice and security they deserve. Domestic violence can have devastating effects on individuals and families, particularly where children are involved, and the law must strike a balance between protecting survivors and ensuring fairness in legal proceedings.
This article explores how family law in England & Wales approaches cases involving survivors of domestic abuse, examining the legal remedies available, the role of the family courts, and the challenges that can arise during the process.
Legal Protections for Survivors
The law in England & Wales recognises domestic abuse as a serious issue that affects the safety and well-being of individuals. The Domestic Abuse Act 2021 strengthened protections for survivors by broadening the definition of domestic abuse to include not just physical violence, but also emotional, coercive, and economic abuse. This legislation places a duty on authorities to take domestic abuse seriously and provide appropriate support for those affected.
In family law cases, survivors of domestic violence can seek various legal protections through the courts. These measures are designed to ensure their safety, prevent further abuse, and protect any children who may be at risk.
Protective Court Orders
The law provides several types of orders that can be obtained through the family courts to protect survivors from further harm.
Non-Molestation Orders
A non-molestation order is designed to prevent an abuser from harassing or threatening the survivor. It can forbid the abuser from contacting the victim in any way, coming near their home, or engaging in any behaviour that could cause distress. These orders can be obtained quickly in urgent cases, and breaching them is a criminal offence, punishable by up to five years in prison.
Occupation Orders
In situations where the survivor and the abuser share a home, an occupation order can determine who has the right to live in the property. This order may require the abuser to leave the home, even if they own or jointly own the property. The court considers several factors, including the needs of any children, the likely impact of the order on both parties, and the survivor’s ability to find alternative accommodation.
Domestic Violence and Child Arrangements
One of the most complex aspects of family law cases involving domestic abuse is deciding on child arrangements, including residence and contact with the non-resident parent. The courts must prioritise the welfare of the child under the Children Act 1989, and allegations of domestic abuse must be carefully considered to ensure the child’s best interests are met.
The ‘Welfare Checklist’
When making decisions about child arrangements, the court applies the ‘welfare checklist,’ which includes factors such as the child’s wishes and feelings, their emotional and physical needs, and any potential harm they might suffer. If there is evidence of domestic abuse, the court must consider how this affects the child and whether contact with the abusive parent would be appropriate.
Presumption of Parental Involvement
There is a general presumption in family law that children benefit from having a meaningful relationship with both parents unless there is evidence that doing so would put the child at risk of harm. However, domestic abuse cases challenge this presumption, as contact with an abusive parent may not be in the child’s best interests. The court must carefully assess the risk before deciding on contact arrangements.
Fact-Finding Hearings
If allegations of domestic abuse are disputed, the court may hold a fact-finding hearing to determine what has taken place. During these hearings, both parties can provide evidence, including witness statements, medical reports, and police records. The burden of proof is on the balance of probabilities, meaning the judge must decide whether it is more likely than not that the alleged abuse occurred. If domestic abuse is found to have taken place, this can greatly affect the outcome of child arrangement proceedings.
Special Measures for Survivors in Court
Navigating family court proceedings can be traumatic for survivors of domestic abuse. To protect them from further distress, special measures are available to ensure they can present their case safely.
Prohibition on Cross-Examination by Abusers
The Domestic Abuse Act 2021 introduced a ban on perpetrators of abuse directly cross-examining their victims in family court. Previously, survivors often found themselves being questioned by their abuser, which could be deeply distressing and impact their ability to participate in proceedings effectively. Instead, the court can appoint a legal representative to conduct questioning on behalf of the unrepresented party.
Separate Waiting Areas and Screens
Many family courts provide separate waiting areas for survivors to prevent intimidation by their abuser before a hearing. In court, screens can be used so the survivor does not have to see the abuser while giving evidence, and video links may be available to allow them to participate remotely. These measures help ensure that survivors can give honest and clear testimony without fear or distress.
Financial Support and Divorce Considerations
For survivors of domestic abuse, leaving an abusive relationship often comes with financial challenges. In divorce and separation cases, family law provides mechanisms to help survivors secure housing and financial support.
Financial Settlements
When a couple divorces, their assets must be divided fairly. The court considers factors such as the length of the marriage, each party’s financial resources, and the needs of any children involved. If domestic abuse has had financial repercussions for the survivor, such as preventing them from working or causing them economic hardship, the court may take this into account when making a financial order. In some cases, the survivor may be awarded a larger share of assets to help them achieve independence.
Legal Aid for Domestic Abuse Survivors
Accessing family law advice and representation can be costly, but domestic abuse survivors may qualify for legal aid to cover their legal costs. To be eligible, they must provide evidence of domestic abuse, such as a police report, medical records, or a non-molestation order. Legal aid ensures that survivors can pursue protective measures, child arrangements, and financial settlements without facing prohibitive legal costs.
Challenges in Family Law Cases Involving Domestic Abuse
Despite the legal protections in place, survivors of domestic abuse face several challenges when navigating the family law system.
Proving Domestic Abuse
Many forms of abuse, such as emotional and economic abuse, leave no physical evidence, making them harder to prove in court. Survivors may struggle to gather sufficient evidence, particularly if they did not report incidents of abuse to the police or seek medical assistance. The requirement for fact-finding hearings can also prolong proceedings, causing additional emotional strain.
Concerns About Abuser Manipulation
Abusers may attempt to manipulate family law proceedings, making false allegations against the survivor or using the legal system as a tool of continued coercion. Some survivors find that their abuser tries to prolong court proceedings to maintain control, particularly in child arrangement cases.
Delays in the Family Courts
The family court system is often overburdened, leading to delays in hearings and decisions. For survivors seeking urgent protection or child arrangements, these delays can leave them in limbo, prolonging their distress and uncertainty. The time taken to resolve cases can have serious implications, particularly where safeguarding concerns exist.
Moving Forward
Family law in England & Wales has made significant strides in recognising and addressing the needs of domestic abuse survivors. The introduction of the Domestic Abuse Act 2021 and the provision of special measures in court reflect an ongoing commitment to protecting vulnerable individuals. However, challenges remain in ensuring that survivors receive timely and effective legal remedies.
Continued legal reform, improved access to legal aid, and better training for judges and court staff are essential in creating a system that fully supports survivors. Advocacy groups and legal professionals play a crucial role in pushing for further improvements to ensure that survivors of domestic abuse are protected and empowered to move forward with their lives.
By strengthening legal frameworks and addressing systemic challenges, family law can better serve those who have experienced abuse, enabling them to find safety, justice, and a future free from fear.