FAMILY COURTS
& THE LAW
(10 minute read)
Sitting on top of the Central Criminal Court in London (and indeed in many courts across the globe) you will find a statue of Lady Justice. She wears a blindfold. This represents impartiality; the ideal that justice should be applied without regard to wealth, power, or other status. In her right hand is a double-edged sword, which symbolises cutting cleanly through fact and fiction to arrive at the truth. In her left hand she holds a pair of scales, depicting the weighing up of evidence and the administration of balance and fairness.
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Sadly, at present, when you mention the word Justice to many women who have been through the Family Court system, in relation to divorce and/or to Child Arrangement Orders, they will often snort loudly with derision and say: 'There is no justice', 'I have a highly controlling, abusive partner and no one is taking any notice'.
No one can fail to feel sympathy for a women in this position. The courts and especially child contact arrangements are often used by perpetrators of abuse as a means to further control an adult victim. A woman (or man - this site is specifically female oriented but men suffer abuse and control too) may be trying to break free, do her best to protect her children and looking for protection herself, but can report feeling retraumatised by the very system that one is turning to for help. It is clear that there are many problems with the system mainly to do with transparency, training and funding - you can read more about calls for scrutiny of the Family Courts here and (2021) The Law Must Change. However, what I have also noticed is that many people seem unaware that there is a difference between Criminal and Civil Law and therefore between the remit of the Criminal and Family Courts. |
Indeed, sometimes (not always) the problem may not be so much about a lack of justice in the Family Court, but about misplaced expectations as to what the Family Court Judges are currently able to do to deal with abuse under current legislation and procedural rules. Perhaps even a lack of understanding about the way in which the Justice system operates as a whole and the separation of powers.
That is definitely not to say that the Courts are without fault. I think most people are aware by now that there is a need for major reform. The Government and politicians know it too, which is why this programme of reform is underway with HMCTS between 2018 and 2023 and why Louise Haigh MP raised this in The House of Commons in April 2019. There is no doubt that there must, as a matter of urgency, be more comprehensive, mandatory Domestic Abuse training for all Judges. Despite the President of the Family Division giving new directions in October 2017 (via Practice Direction 12J) to Judges deciding cases where allegations of domestic abuse and harm are made, many Judges still do not appear to understand the subtleties of manipulative, controlling post-separation behaviour.
In the interests of fairness though, there is definitely also a need to make women more aware of the constraints on the Judges due to the current laws. It is only Parliament who can change the detail of laws. It has also been decided (2021) that it would be constitutionally incorrect for Parliament to interfere in what must be the role of the Judicial College to ensure Judges are adequately trained in Domestic Abuse and Coercive Control. This constitutional aspect is why many MPs who work tirelessly in Domestic Abuse had to vote against this law.
For many women, trying to break free of an abusive partner the Family Court is their first-ever experience of the law courts. So, if you are looking for practical advice if you are in the process of leaving your abuser, a) please follow the advice on this page about leaving safely and b) please read this page below in conjunction with the Law and the page about Divorce, as they both also contain links to important info about child arrangements. Overall though, you must take proper leagl advice.
In what follows I'm going to attempt to give an overview of the Justice system in really simplistic, down-to-earth layman's terms. I'll include lots of links to various pieces of information. This approach will hopefully make options more clear to women who are just at the start of their journey of leaving their abuser. (Disclaimer: Again, I am not a lawyer and you should always seek professional legal advice. See Resources section and The Citizens Advice Centres offer free legal help as does Advocate the Barrister's Pro-Bono Centre).
THE JUSTICE SYSTEM FOR THE LAYPERSON
Let's first look at the basics. I was once loathe to admit that, despite being an intelligent woman, I did not understand the difference between a Solicitor and a Barrister and I was too ashamed to ask anyone. Nowadays information is more freely available Read this article
Both Solicitors and Barristers are known by the collective term: Lawyer. Each solicitor and barrister will have a specialisation. It might be in Media law or Corporate law or Family Law - there are many, many branches. A barrister might only undertake Family/Matrimonial cases or deal with Human Rights or Crime/Fraud, so you need to choose wisely. Solicitors usually instruct barristers on your behalf, but some barristers work on an open-access basis so you can bypass the solicitor. Solicitors work in Law Firms or in-house for organisations, most barristers work out of 'Chambers' and tend to be self-employed. A small amount are employed by the State. A barrister appears in Court. A solicitor, generally does not - they usually instruct a barrister.
The Solicitors Regulation Authority and Law Society oversees all Solicitors and Barristers.
Judges are known by the collective term, the Judiciary. This document tells you what each is responsible for and lists the structure of the Judiciary.
HM Courts and Tribunals
Next, let's look at the range of Courts there are (click or pinch to enlarge):
In the interests of fairness though, there is definitely also a need to make women more aware of the constraints on the Judges due to the current laws. It is only Parliament who can change the detail of laws. It has also been decided (2021) that it would be constitutionally incorrect for Parliament to interfere in what must be the role of the Judicial College to ensure Judges are adequately trained in Domestic Abuse and Coercive Control. This constitutional aspect is why many MPs who work tirelessly in Domestic Abuse had to vote against this law.
For many women, trying to break free of an abusive partner the Family Court is their first-ever experience of the law courts. So, if you are looking for practical advice if you are in the process of leaving your abuser, a) please follow the advice on this page about leaving safely and b) please read this page below in conjunction with the Law and the page about Divorce, as they both also contain links to important info about child arrangements. Overall though, you must take proper leagl advice.
In what follows I'm going to attempt to give an overview of the Justice system in really simplistic, down-to-earth layman's terms. I'll include lots of links to various pieces of information. This approach will hopefully make options more clear to women who are just at the start of their journey of leaving their abuser. (Disclaimer: Again, I am not a lawyer and you should always seek professional legal advice. See Resources section and The Citizens Advice Centres offer free legal help as does Advocate the Barrister's Pro-Bono Centre).
THE JUSTICE SYSTEM FOR THE LAYPERSON
Let's first look at the basics. I was once loathe to admit that, despite being an intelligent woman, I did not understand the difference between a Solicitor and a Barrister and I was too ashamed to ask anyone. Nowadays information is more freely available Read this article
Both Solicitors and Barristers are known by the collective term: Lawyer. Each solicitor and barrister will have a specialisation. It might be in Media law or Corporate law or Family Law - there are many, many branches. A barrister might only undertake Family/Matrimonial cases or deal with Human Rights or Crime/Fraud, so you need to choose wisely. Solicitors usually instruct barristers on your behalf, but some barristers work on an open-access basis so you can bypass the solicitor. Solicitors work in Law Firms or in-house for organisations, most barristers work out of 'Chambers' and tend to be self-employed. A small amount are employed by the State. A barrister appears in Court. A solicitor, generally does not - they usually instruct a barrister.
The Solicitors Regulation Authority and Law Society oversees all Solicitors and Barristers.
Judges are known by the collective term, the Judiciary. This document tells you what each is responsible for and lists the structure of the Judiciary.
HM Courts and Tribunals
Next, let's look at the range of Courts there are (click or pinch to enlarge):
As you can see, that's a lot of Courts and a lot of Judges presiding over them.
Criminal vs Civil Law
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In the Justice System, we have a set of laws (legislation) laid down in the statute books. This means they have been agreed by Parliament.
Parliament has a bicameral system, meaning it is comprised of two chambers, The Commons and The Lords. (These make up the Houses of Parliament). Only MPs are elected by the people. The people are 'the Electorate and the MPs have a consituency, which is an area of the country. Everyone who lives in that consituency and is eligible to vote, whether they voted for the MP duly elected or not, is a Constituent. MPs represent the interests and concerns of their constituents and scrutinise the work and policies of the government, holding it to account. |
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The Lords do not have constituents. Peerages in the Lords are either hereditary or bestowed however the Lords share the task of making and shaping laws and checking and challenging the work of the government.
The Monarchy is the 3rd part of the British parliamentary system. When a law has finished passing through the two chambers it receives Royal Assent and moves from being a Bill to becoming an Act of Parliament. These laws are known as Primary Legislation. They are there in order to prevent society descending into chaos.
They give us all a set of rules to live and abide by and protect the vulnerable - or are supposed to!
When a criminal law is broken, if there is enough evidence and it is deemed in the public interest to prosecute, a case will be brought between Regina (The Crown Prosecution Service) and the offender. A jury will be present and the goal is for them to arrive at a verdict of either guilty (beyond a reasonable doubt) or not-guilty. If the former, then the Judge will then dispense fair punishment for the offence, to uphold and maintain order in society.
The punishment will not be arbitrarily arrived at by the Judge but rather there are very specific sentencing guidelines issued for each and every crime and circumstance. A first-time offender will have a different sentence to a serial offender - and that's how it should be unless its a very serious crime. 'Minor' crimes are dealt with by Magistrates but more serious crimes will be dealt with by the higher courts. The highest court in the land is The Supreme Court. It is the final court of appeal in the UK. If an appeal is granted here the case is won - it can go no higher.
Prosecution
If you are the victim of a crime, and the police are informed, you will probably* not need to hire a lawyer as the offence is deemed to have been perpetrated against you and society as whole i.e., the offender (the accused) is the one on trial and they will be prosecuted by 'the State'. (* please note, in some cases, you might need to hire a lawyer). The police will do the evidence gathering and charging but it is the Crown Prosecution Service (CPS), not the police, who will decide whether to prosecute the crime and only the CPS can drop the charges. Unless it's a common assault, you cannot stop the process. So if you have suffered serious harm at the hands of your abuser the decision is not in your hands. In fact, if you do not cooperate with the prosecutor, you too could be charged with a criminal offence.
If your partner makes a false allegation against you though you would need to get legal advice and representation. The criminal offence of making false allegations is covered under the common law offence of perverting the course of public justice. The actual wording of the offence is 'Where a person deliberately makes a false allegation about an offence in order to have a person arrested.' This would amount to attempting to pervert the course of public justice. I believe consideration could also be given to an offence under section 5(2) of the Criminal Law Act 1967, which covers wasteful employment of the police, better known as wasting police time. It's complicated and you need legal advice but you can read all about it here: Perverting the Course of Justice
So the ordinary sequence of events for Criminal Law will proceed something like this: a crime (like assault, rape, coercive control etc) is reported to the police; the police gather statements and evidence to see if the behaviour and evidence meets the threshold guidelines to charge. If it does then the CPS are informed and a decision to prosecute (or not) is taken. The CPS (Crown Prosecution Service) must be satisfied that there is a realistic prospect of conviction. This means that a Jury, or bench of Magistrates, or a Judge hearing the case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
Many, many cases do not get prosecuted. This is not because they don't believe victims, or are being unfair, but will likely be that there is not a realistic prospect of conviction. This is why evidence gathering is so important if you are to get redress for the abuse you have suffered. Please see the evidence list on this page.
The Monarchy is the 3rd part of the British parliamentary system. When a law has finished passing through the two chambers it receives Royal Assent and moves from being a Bill to becoming an Act of Parliament. These laws are known as Primary Legislation. They are there in order to prevent society descending into chaos.
They give us all a set of rules to live and abide by and protect the vulnerable - or are supposed to!
When a criminal law is broken, if there is enough evidence and it is deemed in the public interest to prosecute, a case will be brought between Regina (The Crown Prosecution Service) and the offender. A jury will be present and the goal is for them to arrive at a verdict of either guilty (beyond a reasonable doubt) or not-guilty. If the former, then the Judge will then dispense fair punishment for the offence, to uphold and maintain order in society.
The punishment will not be arbitrarily arrived at by the Judge but rather there are very specific sentencing guidelines issued for each and every crime and circumstance. A first-time offender will have a different sentence to a serial offender - and that's how it should be unless its a very serious crime. 'Minor' crimes are dealt with by Magistrates but more serious crimes will be dealt with by the higher courts. The highest court in the land is The Supreme Court. It is the final court of appeal in the UK. If an appeal is granted here the case is won - it can go no higher.
Prosecution
If you are the victim of a crime, and the police are informed, you will probably* not need to hire a lawyer as the offence is deemed to have been perpetrated against you and society as whole i.e., the offender (the accused) is the one on trial and they will be prosecuted by 'the State'. (* please note, in some cases, you might need to hire a lawyer). The police will do the evidence gathering and charging but it is the Crown Prosecution Service (CPS), not the police, who will decide whether to prosecute the crime and only the CPS can drop the charges. Unless it's a common assault, you cannot stop the process. So if you have suffered serious harm at the hands of your abuser the decision is not in your hands. In fact, if you do not cooperate with the prosecutor, you too could be charged with a criminal offence.
If your partner makes a false allegation against you though you would need to get legal advice and representation. The criminal offence of making false allegations is covered under the common law offence of perverting the course of public justice. The actual wording of the offence is 'Where a person deliberately makes a false allegation about an offence in order to have a person arrested.' This would amount to attempting to pervert the course of public justice. I believe consideration could also be given to an offence under section 5(2) of the Criminal Law Act 1967, which covers wasteful employment of the police, better known as wasting police time. It's complicated and you need legal advice but you can read all about it here: Perverting the Course of Justice
So the ordinary sequence of events for Criminal Law will proceed something like this: a crime (like assault, rape, coercive control etc) is reported to the police; the police gather statements and evidence to see if the behaviour and evidence meets the threshold guidelines to charge. If it does then the CPS are informed and a decision to prosecute (or not) is taken. The CPS (Crown Prosecution Service) must be satisfied that there is a realistic prospect of conviction. This means that a Jury, or bench of Magistrates, or a Judge hearing the case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
Many, many cases do not get prosecuted. This is not because they don't believe victims, or are being unfair, but will likely be that there is not a realistic prospect of conviction. This is why evidence gathering is so important if you are to get redress for the abuse you have suffered. Please see the evidence list on this page.
Family Law
Civil Law deals with disputes and what we commonly know as lawsuits between parties. For example, a woman called Nicola Stocker was accused of making a statement about her former husband and he pursued her under the (Civil) libel laws. Nicola, supported by the Centre for Women's Justice, won her case when it went all the way to The Supreme Court. You can read about that here. (The Supreme Court hears both civil and criminal cases).
Family law is a branch of civil law but neither civil law nor family law is criminal law and this is a critical distinction, because what it means is that criminal law concepts do not apply in family court for divorce/financial remedy hearings/child arrangements: in family law there is no prosecution. Rather there is a dispute between individuals and the role of the courts is to dispense a fair remedy (i.e., not a punishment or sentence) between the parties. There is no jury in a family court but instead, like in any civil case, you have to pay for legal representation and court fees (you may be eligible for legal aid) or act as a Litigant in Person i.e., represent yourself. There are exceptions to this in the case of local authority intervention (see Public Law) to do with child protection.
Here is a Guide for Litigants in Person There are more in the Resources section.
You can also watch an excellent series of videos about 'The Family Courts without a Lawyer' here with Lucy Reed. This is video three of three:
Family law is a branch of civil law but neither civil law nor family law is criminal law and this is a critical distinction, because what it means is that criminal law concepts do not apply in family court for divorce/financial remedy hearings/child arrangements: in family law there is no prosecution. Rather there is a dispute between individuals and the role of the courts is to dispense a fair remedy (i.e., not a punishment or sentence) between the parties. There is no jury in a family court but instead, like in any civil case, you have to pay for legal representation and court fees (you may be eligible for legal aid) or act as a Litigant in Person i.e., represent yourself. There are exceptions to this in the case of local authority intervention (see Public Law) to do with child protection.
Here is a Guide for Litigants in Person There are more in the Resources section.
You can also watch an excellent series of videos about 'The Family Courts without a Lawyer' here with Lucy Reed. This is video three of three:
So Criminal Courts punish an offender who is found guilty. Family Courts dispense remedies (orders) in disputes between two individuals over their finances or child arrangements.
Many women who have been abused simply want to find relief and see their partner punished for trying to control them but it's a mistake to think that a Judge in a Family Court can punish your partner. He or she can "punish" an abusive partner by sending him for committal for Contempt of Court (which is a criminal offence) if he breaks an order or flagrantly disrespects the Family Court. Realistically though, that is a long drawn out procedure and if he apologises and presents good reasons then the first-time contemnor (person who has committed contempt) is highly unlikely to end up in prison. Even if a Judge rules to stop contact upon hearing of abuse he is not, in the eyes of the law, "punishing" the abuser for what he has done or protecting you but rather, simply looking after the best interests of the child.
Practice Direction 12J specifically guides the Judiciary on how to view cases involving domestic abuse when making Child Arrangement and Contact Orders. For the issue of child arrangements the court will (is supposed to) ensure that any order for contact will not expose the child(ren) to an unmanageable risk of harm.
Many women who have been abused simply want to find relief and see their partner punished for trying to control them but it's a mistake to think that a Judge in a Family Court can punish your partner. He or she can "punish" an abusive partner by sending him for committal for Contempt of Court (which is a criminal offence) if he breaks an order or flagrantly disrespects the Family Court. Realistically though, that is a long drawn out procedure and if he apologises and presents good reasons then the first-time contemnor (person who has committed contempt) is highly unlikely to end up in prison. Even if a Judge rules to stop contact upon hearing of abuse he is not, in the eyes of the law, "punishing" the abuser for what he has done or protecting you but rather, simply looking after the best interests of the child.
Practice Direction 12J specifically guides the Judiciary on how to view cases involving domestic abuse when making Child Arrangement and Contact Orders. For the issue of child arrangements the court will (is supposed to) ensure that any order for contact will not expose the child(ren) to an unmanageable risk of harm.
This is taken from Practice Direction 12J which is guidance from the President of the Family Division to Judges in the Family Court.
As stated earlier, there is a big push for radical reform, greater scrutiny and better training in this area currently underway. You can see from point c above that the Judges should be alert to partners who are using the court process to continue a form of domestic abuse (control) against the other parent. Many women feel that this direction is not being properly considered. Again, greater awareness of the tactics of abusers is needed by the Judiciary. Some stories are heartbreaking but due to the secrecy of the Family Court (which is to protect the child) we may not always know the full facts.
FRAUD & SHAM
So, when deciding a financial order that will be a different hearing and a different set of practice directions and procedural rules to PD12J and in those cases the Judge will not be interested in the conduct of your partner unless it is highly material to the fair division of assets i.e a fraud or sham. This is why a Solicitor will often tell you not to raise conduct about domestic abuse in these hearings (unless it's attempted murder or child abuse).
In the case of H v H 2005 conduct was taken into account as a husband’s attack on his wife was found to be so serious it impacted on her earning capacity. It's not that abuse doesn't matter to the Judge, or that he/she doesn't care, it's just that they cannot (presently) consider many issues of conduct a factor in fair division of assets. However, if there is financial non-disclosure, even if you discover it after the divorce has been granted and a financial order made (and you can prove it), you can return to court as there is a duty to the court for both parties to make full and frank disclosure - see Divorce. and seek legal advice.
You can read all the Practice Directions here
DIVORCE ABUSE
Where problems commonly arise for many women divorcing an abusive man though is
a) in the abusers desire to prolong the process to cause maximum upset and
b) if there are children, they can be used as a means to upset and further control the partner.
This is effectively the abuser 'weaponsing' the Court system.
So the abusive partner may agree to arrangements in Court then immediately break them, necessitating further court hearings and therefore dragging it out. They may make false allegations about you - or worst case, even harm the children. There are some horror stories out there and many women struggle to get even trained professionals and expert witnesses to see behind the mask of the really clever abusers.
Claire Throssell campaigns tirelessly to make Judges accountable for the decisions they make over child contact arrangements.
If the Judiciary are not properly trained in the control tactics of perpetrators, they might, in their quest to be impartial, end up unwittingly enabling an abuser and agree Financial, Contact, Residence or Specific Issue Orders in the Family Court that should never be made. It's a huge ongoing issue - how to get a more seamless, joined up system and reform the law so that every circumstance of abuse is understood and caught in the net in either the Criminal or Family Courts, or both.
It is not fair or right to say that only men abuse women and/or children. The reverse does occur. Statistically though males abusing females predominates.
ECONOMIC ABUSE
There is nothing worse for a woman then seeing her controlling ex turn on the charm and pulling the wool over the eyes of a Judge as to his true demeanour, with cruel intent to eke out the financial dispute hearings or to use the children as pawns. Sadly, the current legal system does allow an abusive partner to continue to economically control a woman by repeatedly dragging her back to court (through the system of appeals) and because there are so many cases the delays to getting the case heard can mean it can take years to sort out, leaving the woman in dire financial straights, mounting debt and limbo when all they want to do is break free and move on. Meanwhile children are suffering.
This is why the charity Surviving Economic Abuse are calling for economic abuse to be a stand-alone criminal offence and for this to include economic abuse perpetrated after separation.
WHAT'S THE SOLUTION?
The solution is for greater awareness among the Judiciary of post-separation control and for the criminalisation of economic abuse (Update, Now enacted 2021) Parliament needs to clamp down on the deliberate abuse and weaponising of the law, and lawyers need to ensure they are not enabling post-separation abuse. Enforcement measures must be acted upon and be stronger in deterrent value.
However in Child Protection proceedings, as I say, you only have to look at the sheer number of women who feel that incorrect decisions have been made over the care of their children to know that, as well as better training for Judges, there needs to be greater transparency and a root and branch overview of the way that CAFCASS operates vis a vis consideration and understanding of the horror of post-separation abuse tactics.
We must ensure the onus is on the perpetrators to stop their behaviour, so please appraise yourself of the exact wording of the Coercive Control law and what other criminal laws may be open to you to use, separate to family law. Please see the list on this page to ensure you get the justice you deserve. Always bear in mind that family lawyers are not criminal lawyers. Just as knee surgeons can't perform brain surgery: a lawyer's knowledge is generally limited to their specialist area and they may be handling many cases all at one time. Do not expect the family lawyers to automatically tell you what other criminal laws may be open to you to use - do your research and make sure you ask.
Only YOU are 100% invested in the outcome of your case. Many lawyers will know the law backwards but not all, and so a second opinion is always advisable.
If you are not happy with your lawyer's conduct you should follow their complaints procedure or consider reporting them to the SRA or Bar Standards Board.
International Custody Disputes
For more information about this subject and The Hague Convention, please see this website. The Hague Convention (HC) is an international agreement which has been signed by nearly 100 countries . It aims to prevent international child abduction, where one parent has wrongfully ‘removed’ or ‘retained’ their child in another country. The HC aims to return children to the country where they are classed as ‘Habitually Resident’ (HR). It believes that the courts in the country of HR are best placed to deal with any welfare issues including where and with whom the child should live.
If you end up separating from your partner, or if one of you wants to stay in the foreign country while the other wants to go home, you might not be allowed to return home with your children. International law states that when you arrive in a new country with the intention of staying, the ‘habitual residence’ of your child shifts to that new country. So unless the other parent gives you permission to take your children back home, you will need to apply to the local court to override this. It doesn’t matter if you are fleeing domestic violence and poverty; it doesn’t even matter if the other parent is in prison and you are the sole carer. By law, you must stay put and wait for the local court to decide if you can go back home with your children.
If you end up separating from your partner, or if one of you wants to stay in the foreign country while the other wants to go home, you might not be allowed to return home with your children. International law states that when you arrive in a new country with the intention of staying, the ‘habitual residence’ of your child shifts to that new country. So unless the other parent gives you permission to take your children back home, you will need to apply to the local court to override this. It doesn’t matter if you are fleeing domestic violence and poverty; it doesn’t even matter if the other parent is in prison and you are the sole carer. By law, you must stay put and wait for the local court to decide if you can go back home with your children.
Public vs Private Law
To further expand on the separation of legislative powers in the UK, criminal laws and some civil laws are known as public laws i.e. they are there to protect the public interest and are between the state and the people. Some laws are known as private law, which means they can be brought by individuals, if they pay for it.
So, the distinction is, Public Law cases are brought by local authorities or an authorised person (currently only the NSPCC) and include matters such as:
Whereas, Private Law cases are brought by private individuals, generally in connection with divorce or the parents’ separation.
Order types include:
This division between public and private law can create problems for both the Courts and the victim where domestic abuse is a factor. This is because many acts of abuse are criminal (Public Law)and yet the break up of a relationship is civil (Private Law) matter. However, as stated here "There is sometimes an overlap between civil cases and criminal cases. A clear example is an assault. If one person unlawfully punches another in the face this amounts to an assault. The victim could bring a civil case for assault and seek to recover damages for his pain and suffering and perhaps any other damage that had resulted (e.g. dental work, a new pair of glasses and lost earnings). Also, the assailant could be prosecuted in the criminal courts because assault is a criminal offence." Again, to learn more about the Criminal laws that can be used to prosecute abusers in criminal courts, see this page here.
In reality a woman who has been abused is highly likely not to want to initiate a civil lawsuit as it just prolongs the stress and contact with her abuser. Also, often when a woman has been economically abused she does not have access to the money to litigate, so although that option is there, they feel let down by the reality of abuse - this is compounded when if the very laws that are there to protect them, such as harassment or defamation, are deliberately mis-used as a weapon against them. Even more so if her ex-partner is a legal professional or is powerful/wealthy and has access to top lawyers.
Law enforcement does have a duty though to ensure that they determine who is the true perpetrator.
"It may not always be straightforward to identify the primary aggressor and true complainant in a case of domestic abuse. It is possible in some cases that a primary 'complainant' of abuse or violence may have acted in a manner in which they are then seen as the perpetrator. For example, retaliation against the primary aggressor after years of abuse." - from Domestic Abuse Guidelines for Prosecutors
As such, the police and CPS should take great care to consider the full facts of the offending behaviour and relevant background and history before any action is taken in arresting and/or charging the suspected offender.
Some Judges ARE trained in Domestic Abuse but more is needed. The training of the Judiciary, and the standard of it, currently falls under the remit of Ian Burnett, Lord Burnett of Maldon, who oversees The Judicial College so please do make your thoughts know to Lord Burnett.
If you want to report a Judge, you can do that here: They will only deal with complaints about the personal conduct of judicial office holders. This means that they will not accept complaints about a judge’s decision or the way a judge has managed a case but if a Judge bullies you or is very rude to you, you can (and should) report him or her.
OTHER CONSIDERATIONS
To return to the two types of law and remedies available to the Family Court Judges to protect the abused person, there is currently a crossover between family and criminal law in the area of civil injunctions:
There are currently two main types of injunctions available under Part IV of the Family Law Act 1996:
It becomes a criminal offence to breach an order (sadly many are not being properly and consistently enforced).
You would have to see a solicitor to apply to the court for any order/injunction (and be warned, perpetrators of abuse often try and turn the tables and say they are the one being harassed. They do this as a form of control).
If there is harassment, stalking, violence or coercive control (see the table of offences on this page ) you should call or visit the Police. With violence there is something called a Domestic Violence Protection Order (DVPO) and Notice (DVPN). This is an emergency non-molestation order and can be given instantaneously by the police.
DVPO measures give police the power to ban a violent abuser from your home for a length of time decided through the magistrates’ court (between 14 and 28 days), allowing you to stay rather than flee to a friend's home, or a refuge, to escape your abuser.
TIMEFRAMES
Some laws have a statute of limitations which means you only have a certain time frame in which to report them. So for reporting a common assault - if you are pushed, slapped hit or punched in any way, it is 6 months. Most crimes though do not have a time limit and with coercive control law if you have experienced violence the limitation does not apply - they are looking for a pattern of behaviour with a partner or family member who you live with or have lived with, so that covers post-separation abuse and does not have to include violence but must include serious alarm or distress - S.76 (4) (b)
So, the distinction is, Public Law cases are brought by local authorities or an authorised person (currently only the NSPCC) and include matters such as:
- care orders, which give parental responsibility for the child concerned to the local authority applying for the order
- supervision orders, which place the child under the supervision of their local authority
- emergency protection orders, which are used to ensure the immediate safety of a child by taking them to a place of safety, or by preventing their removal from a place of safety
Whereas, Private Law cases are brought by private individuals, generally in connection with divorce or the parents’ separation.
Order types include:
- parental responsibility
- financial applications
- special guardianship orders, which give a special guardian legal responsibility without removing legal responsibility from the birth parents
- orders under Section 8 of the Children Act 1989, which can be used to settle where a child lives, parental contact and responsibility and other specific disputes. Orders can also be made over “prohibited steps” – for example, preventing a parent from moving a child to another country.
This division between public and private law can create problems for both the Courts and the victim where domestic abuse is a factor. This is because many acts of abuse are criminal (Public Law)and yet the break up of a relationship is civil (Private Law) matter. However, as stated here "There is sometimes an overlap between civil cases and criminal cases. A clear example is an assault. If one person unlawfully punches another in the face this amounts to an assault. The victim could bring a civil case for assault and seek to recover damages for his pain and suffering and perhaps any other damage that had resulted (e.g. dental work, a new pair of glasses and lost earnings). Also, the assailant could be prosecuted in the criminal courts because assault is a criminal offence." Again, to learn more about the Criminal laws that can be used to prosecute abusers in criminal courts, see this page here.
In reality a woman who has been abused is highly likely not to want to initiate a civil lawsuit as it just prolongs the stress and contact with her abuser. Also, often when a woman has been economically abused she does not have access to the money to litigate, so although that option is there, they feel let down by the reality of abuse - this is compounded when if the very laws that are there to protect them, such as harassment or defamation, are deliberately mis-used as a weapon against them. Even more so if her ex-partner is a legal professional or is powerful/wealthy and has access to top lawyers.
Law enforcement does have a duty though to ensure that they determine who is the true perpetrator.
"It may not always be straightforward to identify the primary aggressor and true complainant in a case of domestic abuse. It is possible in some cases that a primary 'complainant' of abuse or violence may have acted in a manner in which they are then seen as the perpetrator. For example, retaliation against the primary aggressor after years of abuse." - from Domestic Abuse Guidelines for Prosecutors
As such, the police and CPS should take great care to consider the full facts of the offending behaviour and relevant background and history before any action is taken in arresting and/or charging the suspected offender.
Some Judges ARE trained in Domestic Abuse but more is needed. The training of the Judiciary, and the standard of it, currently falls under the remit of Ian Burnett, Lord Burnett of Maldon, who oversees The Judicial College so please do make your thoughts know to Lord Burnett.
If you want to report a Judge, you can do that here: They will only deal with complaints about the personal conduct of judicial office holders. This means that they will not accept complaints about a judge’s decision or the way a judge has managed a case but if a Judge bullies you or is very rude to you, you can (and should) report him or her.
OTHER CONSIDERATIONS
To return to the two types of law and remedies available to the Family Court Judges to protect the abused person, there is currently a crossover between family and criminal law in the area of civil injunctions:
There are currently two main types of injunctions available under Part IV of the Family Law Act 1996:
- A non-molestation order
- An occupation order - Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the matrimonial home. They are only a short-term solution and will not affect what happens to the property in the final settlement.
It becomes a criminal offence to breach an order (sadly many are not being properly and consistently enforced).
You would have to see a solicitor to apply to the court for any order/injunction (and be warned, perpetrators of abuse often try and turn the tables and say they are the one being harassed. They do this as a form of control).
If there is harassment, stalking, violence or coercive control (see the table of offences on this page ) you should call or visit the Police. With violence there is something called a Domestic Violence Protection Order (DVPO) and Notice (DVPN). This is an emergency non-molestation order and can be given instantaneously by the police.
DVPO measures give police the power to ban a violent abuser from your home for a length of time decided through the magistrates’ court (between 14 and 28 days), allowing you to stay rather than flee to a friend's home, or a refuge, to escape your abuser.
TIMEFRAMES
Some laws have a statute of limitations which means you only have a certain time frame in which to report them. So for reporting a common assault - if you are pushed, slapped hit or punched in any way, it is 6 months. Most crimes though do not have a time limit and with coercive control law if you have experienced violence the limitation does not apply - they are looking for a pattern of behaviour with a partner or family member who you live with or have lived with, so that covers post-separation abuse and does not have to include violence but must include serious alarm or distress - S.76 (4) (b)
Always consult the police and raise the incident with them.
TRANSPARENCY IN THE FAMILY COURTS
So in conclusion, as anyone who has read The Secret Barrister will know, the UK Criminal Justice System is definitely in a bit of a mess. (See #TheLawIsBroken on Twitter) and there's no doubt the Family Law System, resting as it does upon a highly patriarchal foundation, and lacking in diversity (although that is slowly improving), is in need of urgent reforms too - especially around enforcement of Family Financial Orders and an understanding of how abusers manipulate the system - but knowledge is power and by understanding who to reach out to for support and how the law operates you will feel more empowered to deal with whatever your abuser might try and throw at you.
Because many of the hearings that take place in the Family Courts are held in private (so as to protect the children) the lack of transparency can give rise to all manner of misconceptions about what is actually going on. Often the women passing through the family courts have been abused and are already lacking in trust. To then have to be confronted by a system replete with an archaic language and laws - many have not be changed since Victorian times - and dire contempt of court warnings if anything is leaked, it all seems incredibly unfair and secretive.
There is no doubt that many women ARE regularly let down by 'the system' and there is a need for greater transparency in many areas, but for every woman who has had a bad experience, there are an equal number who will sing the praises of the people who dealt with them as they passed through the legal system; we just don't hear from them so often, they've happily moved on while others are left still trying desperately to feel heard, understood and believed.
If you are facing court hearings either as a Litigant in Person or with legal representation, please learn as much as you can about the law, how it operates and what laws are available to you as a victim of abuse. If children are involved, please try and gather a support network and learn as much as you can about what is ahead. Here are two excellent one-hour lectures from a female QC, Jo Delahunty, about Transparency in the Family Court and the Child Protection system, there are more videos on the resources page.
Wishing you much strength and support.
TRANSPARENCY IN THE FAMILY COURTS
So in conclusion, as anyone who has read The Secret Barrister will know, the UK Criminal Justice System is definitely in a bit of a mess. (See #TheLawIsBroken on Twitter) and there's no doubt the Family Law System, resting as it does upon a highly patriarchal foundation, and lacking in diversity (although that is slowly improving), is in need of urgent reforms too - especially around enforcement of Family Financial Orders and an understanding of how abusers manipulate the system - but knowledge is power and by understanding who to reach out to for support and how the law operates you will feel more empowered to deal with whatever your abuser might try and throw at you.
Because many of the hearings that take place in the Family Courts are held in private (so as to protect the children) the lack of transparency can give rise to all manner of misconceptions about what is actually going on. Often the women passing through the family courts have been abused and are already lacking in trust. To then have to be confronted by a system replete with an archaic language and laws - many have not be changed since Victorian times - and dire contempt of court warnings if anything is leaked, it all seems incredibly unfair and secretive.
There is no doubt that many women ARE regularly let down by 'the system' and there is a need for greater transparency in many areas, but for every woman who has had a bad experience, there are an equal number who will sing the praises of the people who dealt with them as they passed through the legal system; we just don't hear from them so often, they've happily moved on while others are left still trying desperately to feel heard, understood and believed.
If you are facing court hearings either as a Litigant in Person or with legal representation, please learn as much as you can about the law, how it operates and what laws are available to you as a victim of abuse. If children are involved, please try and gather a support network and learn as much as you can about what is ahead. Here are two excellent one-hour lectures from a female QC, Jo Delahunty, about Transparency in the Family Court and the Child Protection system, there are more videos on the resources page.
Wishing you much strength and support.
The Rule of Law
The rule of law is one of the fundamental principles of UK’ s unwritten constitution. The key principle is that the law should apply equally to all. It is best explained by a set of sub-principles which are:
No-one Is ‘Above’ The Law
The law applies to the Prime Minister, ministers and public officials as well as other members of society. This is supposed to ensure that public officials use their power reasonably and do not exceed the limits placed on its use. This aspect of the rule of law is upheld through administrative law and by the practice of judicial review.
There must be Equality Before The Law
The law is meant to treat all citizens alike. All people should therefore have the same legal rights and have the same access to the legal system regardless of Race, Colour, Creed, Religion, Wealth, social status and official position. All must be rated the same by the court system.
There must be access to legal remedy.
Disputes must be resolved by the application of the law rather than by other means. This means that there must be a certainty of punishment for breaches of law –law cannot apply in certain circumstances, but not in others. By the same token, there should be punishment only for breaches of law - people should not be penalized except through the due process of law.
There must be a fair hearing by an Independent Judiciary
One crucial aspect of the rule of the law is that judges are meant to be strictly impartial and non-political .
Reference
No-one Is ‘Above’ The Law
The law applies to the Prime Minister, ministers and public officials as well as other members of society. This is supposed to ensure that public officials use their power reasonably and do not exceed the limits placed on its use. This aspect of the rule of law is upheld through administrative law and by the practice of judicial review.
There must be Equality Before The Law
The law is meant to treat all citizens alike. All people should therefore have the same legal rights and have the same access to the legal system regardless of Race, Colour, Creed, Religion, Wealth, social status and official position. All must be rated the same by the court system.
There must be access to legal remedy.
Disputes must be resolved by the application of the law rather than by other means. This means that there must be a certainty of punishment for breaches of law –law cannot apply in certain circumstances, but not in others. By the same token, there should be punishment only for breaches of law - people should not be penalized except through the due process of law.
There must be a fair hearing by an Independent Judiciary
One crucial aspect of the rule of the law is that judges are meant to be strictly impartial and non-political .
Reference
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Notes and Disclaimer:
Nothing on this site, on any page, should be taken as legal advice, it is for information only - you should always seek the services of a qualified legal professional. Likewise, nothing on this site should be construed as medical advice. The services of a medical professional or mental health professional should be sought if needed.
All information is provided in good faith to educate the general public, victims and survivors about abuse, and specifically, post-relationship control. Please be aware that some of the content of this site may 'trigger' .
*The British Crime Survey shows Domestic Abuse to be a gendered issue, however no offence is intended and it is accepted that men may be affected and there may be people of other gender identities to whom this information may apply. Abuse can happen to - and be perpetrated by - anyone, from any sector of the socioeconomic scale.
** It is recognised that Coercive Control can happen in an intimate or familial relationship see The Law
Nothing on this site, on any page, should be taken as legal advice, it is for information only - you should always seek the services of a qualified legal professional. Likewise, nothing on this site should be construed as medical advice. The services of a medical professional or mental health professional should be sought if needed.
All information is provided in good faith to educate the general public, victims and survivors about abuse, and specifically, post-relationship control. Please be aware that some of the content of this site may 'trigger' .
*The British Crime Survey shows Domestic Abuse to be a gendered issue, however no offence is intended and it is accepted that men may be affected and there may be people of other gender identities to whom this information may apply. Abuse can happen to - and be perpetrated by - anyone, from any sector of the socioeconomic scale.
** It is recognised that Coercive Control can happen in an intimate or familial relationship see The Law