Introducing Resolution’s report on Domestic abuse in financial remedy proceedings

As the chairs of Resolution’s Domestic Abuse and Property, Tax & Financial Remedy Committees, we welcomed the opportunity to contribute to Resolution’s groundbreaking report on the interplay between domestic abuse and financial remedy proceedings, which was published on 8 October 2024 and has garnered widespread press coverage, including in the national media. The working party brought together a wide coalition of family professionals, including members of both committees, as well as members of the Cohabitation, Litigants in Person and National Committees, and drew on the wide breadth of experience within our membership and the commonality of approach shared by Resolution members, to improve clients’ experience of the family justice system.

Following a detailed analysis of the state of the law in this area, the report makes recommendations for the changes needed to make the family justice system safer and fairer for survivors of domestic abuse when resolving their finances on divorce. It is fundamental reading for anyone working in this area, not least because Resolution hopes that it will help to shape the future of how this sensitive issue is dealt with in the courts.

Having surveyed family justice professionals, the report sets out some alarming statistics. 80% believe domestic abuse and specifically economic abuse is not given sufficient consideration in financial remedy proceedings; 85% believe it is not given sufficient consideration in Schedule 1 cases; and 87% believe it is not given sufficient consideration where a separating couple have cohabited and have not been married.

These results did not surprise us and are clearly widely recognised, given that the report was endorsed and supported by organisations within the family law community and beyond, including:

• The Domestic Abuse Commissioner, Nicole Jacobs
• The Law Society
• The Bar Council
• The Family Law Bar Association
• Surviving Economic Abuse
• Rights of Women
• UK Finance

Although the report provides an in-depth analysis of section 25(2)(g) of the Matrimonial Causes Act 1973, it is clear that it does not set out to make a final recommendation about whether there should be legislative change to amend the way in which the court approaches the issue of conduct. Instead, the report concludes with recommendations for change that can be implemented without revisiting primary legislation. Full details are set out in the report, but they include:

• changes to the Family Procedure Rules to safeguard parties from ongoing domestic abuse, including an amendment to the overriding objective to ensure that dealing with a case justly includes safeguarding the parties from domestic abuse
• there should be a clear emphasis that the duty of full and frank disclosure begins before any court process is in place
• that there are circumstances in which the balance should move away from non-court dispute resolution (NCDR) to give victim survivor’s the benefit of using a court-backed process
• creating an expedited procedure to convert arbitral awards and private FDR agreements into orders to prevent economic abuse continuing to be perpetrated where no order is yet in place
• the Efficiency Statements should be amended to include specific reference to ensuring that financial proceedings cannot be used as a vehicle for ongoing abuse
• further thought should be given to providing victim survivors with financial support until the final outcome of financial remedy proceedings
• the legislation relating to LSPOs should be reviewed to recognise that economic abuse may prevent one party from accessing resources to enable them to take legal advice
• as well as judges and legal professionals working together to consider the consequences of non-compliance with a financial remedy order at the time it is made, the Law Commission’s 2016 recommendations on the enforcement of orders should be introduced to make it easier and simpler for people to take action where there is non-compliance
• increasing legal aid rates as well as reviewing financial thresholds and requirements to ensure that people are able to access appropriate legal representation

Resolution’s vision is for a swift implementation of these measures. In the meantime, whilst many of us have a broad understanding of economic abuse, there are changes that each of us can adopt now which will ensure that on a day-to-day basis we are putting the experience of the victim survivor at the heart of how we practice. Making these adjustments to our own practices can help to lessen the impact of the family justice system on the most vulnerable.

1. It is useful to return to the definition of abuse itself in section 1 of the Domestic Abuse Act (DAA) 2021 and be aware that domestic abuse, including economic abuse, should not be thought of as an area of practice specific only to a certain “type of client”.
2. We can prompt ourselves to think beyond the immediate factual scenario a client presents to us and consider if there are additional issues which a client might not have yet understood as abusive.
3. Ensure that abuse is not dismissed or minimised as “historical” or as a one-off incident. Not understanding the ongoing and long-term trauma of domestic abuse for victim survivors can perpetuate it, increasing the risk of harm or further harm. In trauma-informed practice, there is no such thing as “historical” abuse.
4. The Family Solutions Group report “Language Matters” gives clear and useful guidance on how the language we use in our work directly impacts on the people we are using it about. In the context of domestic abuse, if your client has described to you what has happened to them, you should not re-interpret it, which includes avoiding re-interpreting their description of the impact that it has had upon them. (On this and on point 3 above, see further the article on the new Cafcass Domestic Abuse Practice Policy).
5. Non-disclosure and economic abuse go hand in hand. In non-court or voluntary proceedings (NCDR) it is vital to ensure that there is a clear and understood timetable for exchanging disclosure and that there is an expectation that the obligation to provide full and frank disclosure starts as soon as the parties enter into NCDR or begin to negotiate. Discussing and agreeing a realistic timetable with your client first and then with the other party, as well as agreeing with your client what steps you intend to take if the timetable is not adhered to, creates a firm strategy that enables you to take a focused approach. Pension disclosure is often the most difficult to obtain for the purposes of completing Form Es, and sending Form Ps at the beginning of a case is key to ensuring that the appropriate information is in place.
6. Despite domestic abuse remaining an exception to the requirement to participate in NCDR, the changes introduced this year may make victim survivors feel more pressure to engage with NCDR even if it is not safe or appropriate for them to do so. Domestic abuse can be evidenced for a MIAM exemption in the following ways:

1. • A Domestic Abuse Protection Notice (DAPN given under DAA 2021 s22 against a prospective party.
   • A letter from an independent domestic abuse organisation confirming that they are providing or have provided support to a prospective party.
   • A Home Office official can now confirm a prospective party has been granted leave to remain in the UK based on domestic abuse instead of for other reasons provided for under the immigration rules.
   • An appropriate health professional provided an examination of the victim by telephone or by video conferencing, or in person.

Once in the court process, protection can be afforded to victim-survivors of domestic abuse. Planning this in advance and talking through the options with your client can help them to feel reassured through the use of separate waiting rooms and screens. Planning how to assist your client to avoid contact with the perpetrator if they are both going to be in the court building is key.

7. Giving thought to the practical provisions to be included in an order, over and above the standard orders, can assist in later reducing the amount of interaction between the parties once an order has to be implemented. This reduces the prospect of ongoing control continuing to be exerted by a perpetrator of economic abuse. The report’s co-author Olivia Piercy comments: “Post-separation abuse can be just as bad, or worse, as the abuse that happens during the course of the relationship. It just finds new channels.” Thinking laterally and consulting with lawyers from other areas can assist to ensure that, for example, all required information/documentation is set out in an order for sale of the family home, so that it can be implemented smoothly and will work in practice during the sale process, reducing potential areas for further abusive behaviour.
8. If a victim-survivor has accrued debts, they can be signposted to the Surviving Economic Abuse (SEA) website. It is also useful to encourage clients to complete the Economic Abuse Evidence Form. This is completed by a trained debt advisor within SEA and leads to faster decision making when it comes to an individual’s debts. (See Sarah Archibald’s article in the last issue of The Review for more information about SEA.) Most banks have established subdivisions to assist vulnerable clients and can take steps to help protect them. For example, it may be possible for a bank to mask a sort code, which means that it cannot be used to track the account holder to a certain part of the country.

9. Finally, we need to acknowledge that these cases are challenging for us to work on and that they can take a toll on us, and this impacts the client’s experience. “Reflective supervision” or coaching can assist us to alleviate the stress and pressures of working on cases that feature domestic abuse. Gillian Bishop’s article in the last issue, “Brave enough to be it”, shone the light on the need for this approach to be taken seriously, and firms that promote it can recognise the impact that it has had on their teams.

Most important of all, whilst we wait for the systemic changes recommended by the working party’s report to be implemented, we can all ensure that empathy, understanding and support for the victim-survivor, whether they are our client or the other party, should be at the heart of all we do and at the heart of the service Resolution members should be aiming to provide to their clients.

Jo.Carr-West@hunterslaw.com

RChristie@fladgate.com