Draft Best Practice Guidance on Domestic Abuse

In January 2020, the Communications Working Party of the Resolution Staff Team launched a consultation into the use of Social Media. Working with our Digital Communications Committee, together with input from members of the Family Law Reform Group, Resolution submitted the response below.

Resolution’s 6,500 members are family lawyers, mediators and other family justice professionals, committed to a non-adversarial approach to family law and the resolution of family disputes.

Resolution members abide by a Code of Practice which emphasises a constructive and collaborative approach to family problems and encourages solutions that take into account the needs of the whole family, particularly the best interests of any children.

Resolution is committed to developing and promoting best standards in the practice of family law amongst both its members and amongst family lawyers in general.

We also campaign for better laws and better support and facilities for families and children undergoing family change.

Resolution’s comments on the draft Best Practice Guidance

We welcome this Best Practice Guidance and the work undertaken by the Working Group. The guidance seems to us to be appropriately comprehensive.

We suggest that a possible omission is that it is important that there is a record on the face of any orders made in family proceedings of any findings of domestic violence, in order to assist the victim to secure private family legal aid for any related family proceedings.

Chapter 5 Training on Domestic Abuse

5.4

Resolution is happy to review our domestic abuse training and we will continue to encourage members to work towards accreditation and reaccreditation.

It would be helpful for the professional groups table to include legal executives and solicitor advocates. Resolution training is available for them and barrister members as well as our solicitor members. Our training is often also open for non-members.

The table should also include Family Law Arbitrators (and IFLA/CIArb training).

5.5

We are unsure about exactly what is meant by there being scope to consider the training requirements that might be attached to legal aid contracts for family law. The guidance might better refer to there being scope to consider legal aid contract supervisor requirements (for example, whether only relevant accredited specialists should supervise domestic abuse work), albeit that this issue would require very careful consideration.

5.6

We suggest that the resources listed include Resolution’s Guide to Good Practice in domestic abuse cases

Chapter 6 Dispute Resolution in cases involving Domestic Abuse

6.2.1

We strongly agree that MIAMs should be attended separately. It is the experience of our members that the Legal Aid Agency (LAA) is pressing for more meetings to be joint for the purposes of approving payment. This approach risks individuals being coerced into attending a MIAM with an abusive partner.

6.2.2

We suggest that the point about shuttle mediation could be reinforced by saying something along the lines of “The strategy of shuttle mediation may be used to keep parties physically apart where there are safety concerns. However, shuttle mediation may not be sufficient in itself to make mediation either safe or appropriate, particularly in cases of coercive and controlling abuse. Physical separation during mediation and staggered arrival and departure times do not prevent intimidation before mediation, repercussions afterwards, or the exercise of control and coercion during the process through statements and messages conveyed (possibly unwittingly) via the mediator. Mediators have a responsibility to ensure that each person is able to speak and negotiate freely on their own behalf and victims of coercion and/or controlling behaviour are unlikely to have the ability or capacity to do so due to the cumulative effects of these behaviours on them.  Likewise, co-mediation is supportive for the mediators but does not necessarily ensure safety or empowerment for the victim of abuse.”

It is also the case that mediators are not ‘experts’ in domestic abuse assessments, rather they are trained in understanding the range of abusive behaviours and to make an assessment as to whether mediation might be or is appropriate taking account of the individuals’ situations and the circumstances, not to make a judgement as to whether there is risk of or actual abuse. A mediator can only work with each individual’s perception of their situation as they can’t ‘fact find’ or interrogate beyond checking whether there is or might have been some level of recorded evidence or protection in place.  Where both potential mediation clients openly agree that there has been domestic abuse in the relationship and want to mediate, the mediator can only make an assessment as to whether it is appropriate and what measures should be in place to ensure the safety of all concerned.

6.5

We await the final recommendations of the Private Law Working Group. Whilst we are broadly supportive of the idea of placing cases on tracks, our concern would be about a triage stage introducing an extra level of decision making without the parties having been before the court, and whether that would be dealt with by the right level of judge with appropriate expertise and rigour. What is needed is up to date expertise to identify domestic abuse cases when they are not so obvious whilst recognising that in some cases it is not possible to gauge the safeguarding threat level until allegations have been committed to written evidence. In our members’ experience, there is little point to putting off a fact finding hearing so that the parties and the case can move on. They have also queried triaging taking place based on written, non-verbal communication only, without the parties actually being there at the time and without all the dynamics in front of any triage judge, for example, in a case where coercive control is not evident from the papers it will be even harder to identify.

Chapter 7 Safety and protection for (alleged) victims of abuse at court

7.2.3

Where a party chooses to issue in a particular court, for example, to avoid disclosing their whereabouts/refuge location to the respondent, the court should not refuse to issue that application. Nor should a return date be listed in a different court. It would be helpful for the guidance to make this clear to courts and judges, and to advise legal practitioners how best to bring the reasons for the choice of court to the court’s attention.

7.2.7

Please could the second line in the last paragraph on page 25 of the draft guidance refer to “a qualified legal representative” which would reflect the anticipated wording in the Domestic Abuse Bill.

Chapter 8 Support Services for Parties at Court

It might be helpful for the guidance to specifically state that non-legal, specialist domestic abuse support at court is not the same as or a substitute for specialist legal support (as well as explaining the benefits of types of non-legal support for victims).

8.2

Whilst it is extremely difficult to persuade the LAA that an (alleged) perpetrator meets the merits test, it is not the case that they are unable to obtain legal aid under any circumstances. Technically, Civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 are within the scope of legal aid under Schedule 1 LASPO 2012. Ilegal aid for respondents remains in scope, subject to means and merits assessment, for civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996Civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 are within the scope of legal aid under Schedule 1 LASPO 2012. Civil legal services provided in relation to home rights, occupation orders and non-molestation orders under Part 4 of the Family Law Act 1996 are within the scope of legal aid under Schedule 1 LASPO 2012. . A respondent may present their own gateway evidence for a private family law legal aid application where there are cross allegations, which will be subject to means and merits assessment, or occasionally successfully apply for exceptional case funding.

The evidence requirements apply on applications for legal aid for private family law children and finance cases.

Chapter 9 Assistance for litigants in person in cases involving (alleged) domestic abuse

We consider that information on the availability of legal aid in private family law cases for sufferers of domestic abuse, and for injunctions, should be available at court for litigants in the event that they have not previously had information and are unaware of what is available.

9.4

We are in the process of preparing more online information for litigants at court on non-molestation and occupation orders.

We suggest including under websites:

– Resolution’s web content for those looking for help https://resolution.org.uk/looking-for-help/abuse-addiction/

– Information and support on Domestic Abuse provided by Only Mums and Only Dads

Chapter 13 Child Arrangements Cases

13.4.6

In our view the last sentence about consultation with Cafcass should be removed. There is no such provision in Part 4 of PD 16A – Representation of children. Whilst there might need to be liaison with Cafcass as to whether a children’s guardian can be appointed without delay, the decision as to a child’s party status is for the court.

Chapter 15 Family Law Act Injunctions

15.3

It may be worth reminding users of the guidance here or elsewhere that there is no need for an applicant for legal aid for a non-molestation order to provide gateway evidence of domestic abuse.

15.3 (and A1.1)

Many members of the Only Mums and Only Dads Family Law Panel are Resolution accredited specialists in Domestic Abuse who will provide assistance in preparing statements and other support.

Chapter 16 Financial Proceedings

We have some concerns about the current availability of judicial resources to permit, for example, detailed reading of form E before a hearing (even before FDRS in many cases). In our members’ experience, a non-molestation order would be a red flag but in practice it would be for the alleged victim’s lawyer (if they have one) to raise issues and request any special arrangements for the hearing.  It is also unlikely that a District Judge dealing with a consent order is going to ‘read between the lines’ sufficiently to investigate whether the order being made is fair (which is their duty in any event) or if it may have been influenced by an imbalance of financial or other power between the parties. The most obvious unfairness would be (and is) picked up on, but it’s the effect of the order rather than the root of it being agreed that the District Judge will focus on. Having said that, we support the guidance and what is suggests should happen to guard against domestic abuse impacting financial outcomes.

Appendix A1.1

Under National services it would be helpful to provide separate web links for Resolution’s Find a Law Professional and The Law Society’s Find a Solicitor

For further information please contact:

Rachel Rogers, Head of Policy
020 3841 0309, rachel.rogers@resolution.org.uk

December 2019