Connect Article September 2024
Family law proceedings, such as divorce, contact cases and care matters, are stressful. They can also be complex, expensive and hard to follow. The risk of insensitive conduct by the parties (and sometimes, by their lawyers in correspondence and aggressive questioning in Court), can traumatise families, or re-traumatise survivors of abuse where a fact-finding hearing is needed, e.g. if allegations of domestic abuse are made.
As a reminder, the Domestic Abuse (Jersey) Law 2022 is in force and confirms the creation of an offence of domestic abuse.
Welfare
Anything that can be done to reduce the negative impact of court proceedings on the parties (both adults and children), is essential. Central to the Children (Jersey) Law 2002 is that the child’s welfare shall be the court’s “paramount” consideration. The Law also states the “no delay” principle, to ensure that public law proceedings relating to children “are disposed of (dealt with), without delay”.
Pathfinder Pilots
What if the voices of vulnerable participants were not only heard more easily, but the participants were made to feel more protected? In certain parts of England and Wales, certain family courts are using ‘Pathfinder Pilots’. The scheme was launched in Dorset and North Wales in March 2022, to help improve information sharing between services such as the police and local authorities and the courts.
The scheme emphasises the need to listen to children’s feelings at all stages of the court process, and especially before the first court hearing. An early hearing called a “gatekeeping hearing” reviews all the information available, to see whether other dispute resolution processes would be more suitable than attending court. Mediation is not always recommended where there has been domestic abuse.
Nicole Jacobs, the independent Domestic Abuse Commissioner for England and Wales, recognised in her July 2023 report, “The Family Court and Domestic Abuse – achieving cultural change”, that (i) children’s needs and (ii) the impact of domestic abuse are both vital considerations, and victims and survivors of domestic abuse must feel listened to and respected in court.
Unfortunately, this is not always the case.
The Commissioner’s report recalled the case of GK v PR [2021] EWFC 2021, where GK, a vulnerable witness who was hospitalised after the first day of the hearing due to its impact, should have been questioned in a different manner. A video link was set up, but the parties could still see each other, which traumatised GK.
In K v K [2022] EWCA Civ 468, concerns were raised following the seeming minimisation of domestic abuse allegations (by judges), in some family courts.
Keep conduct in mind
Personal conduct matters in any litigation, but especially within family law proceedings.
‘Conduct’ includes the language and actions of the parties, their lawyers, and the experts they are relying on, to ensure a safe outcome for domestic abuse survivors – and their children.
This article does not constitute legal advice. Anyone wishing to speak to Chris in confidence can call him on 01534 833 888.