Guardian investigation shows how women are often cross-examined by violent ex-partners in secretive civil court hearings
Violent and abusive men are being allowed to confront and cross-examine their former partners in secretive court hearings that fail to protect women who are victims of abuse, a Guardian investigation has found.
Mothers involved in family court hearings have given graphic descriptions of the “torture” of being questioned by abusive men – a practice still allowed in civil cases but banned in criminal courts.
They describe how former partners can make repeated, sometimes spurious, court applications to continue the harassment.
In one case, a mother was cross-examined for two hours by her ex-husband despite him being the subject of a restraining order to keep him away from her.
Sarah, whose name has been changed, said: “I thought, why does the judge allow him to continue this abuse? I had escaped a really violent relationship, it was a very hard thing to do, and the court threw me back into harm’s way constantly. It was torture for me.”
The court of protection and central family court in London. Photograph: Nick Ansell/PA
Family courts cases are held in private in England and Wales. The testimony of witnesses, documentary evidence, expert statements and judicial decisions are mostly still secret.
Women who spoke to the Guardian knew they were at risk of being held in contempt of court but said they wanted to shine a light on the secretive processes.
The revelations have prompted one MP to demand a review of the way the court system operates and a change in the law. Peter Kyle, Labour MP for Hove and Portslade, said the situation amounted to the “abuse and brutalisation” of women by the legal system. “Mothers need the protection of the law and they need to know in advance that the system is there to look out and protect their interests,” he said.
“It only takes one woman to be placed in a situation where she can be legally be asked by the man who has violently abused her; ‘When did you last have sex?’. That only has to happen once to realise that the system is corrupted and domestic abuse is going on in our system in the courtroom.”
The evidence obtained by the Guardian spans ongoing and completed cases, interviews with participants, lawyers and court officials. It reveals how the family court:
- Allows men with criminal convictions for abusing their ex-partners to directly question them – sometimes repeatedly.
- Is able to ignore restraining orders imposed by the criminal courts to protect the women.
- Allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers.
- Can ignore expert evidence that women are at risk from abusive men.
- Fails to adequately protect vulnerable victims of domestic and sexual abuse.
Research by the all-party parliamentary group on domestic violence found that 55% of women had no access to special measures in the family courts, where 70% of separation and child contact cases involve some form of domestic violence.
One mother whose case was examined by the Guardian was told by a judge to sit next to her ex-partner to view a police video of her reporting his sexual assault. She said: “Since when is it OK to force a victim of abuse to sit next to her abuser around a laptop and watch the police video of the statements she made to the police about her sexual abuse? There was no screen in place, they provided no separate room for me.”
Polly Neate. Photograph: Sam Friedrich/for the Guardian
Polly Neate, chief executive of Women’s Aid, has presented research to the judiciary that shows a quarter of victims of domestic violence surveyed had been cross-examined by abusive partners. “When we talk to judges about this they say that this never happens. But it is happening, that is clear, and it seems fairly difficult to get this across,” she said.
Neate is in talks with a senior judge selected by the president of the family division, Sir James Munby, to force the courts to follow guidance, known as practice direction 12J, which is designed to protect mothers from direct cross-examination by violent perpetrators of abuse.
Responding to the revelations in the Guardian, Cris McCurley, a family lawyer from the north-east, said: “I have worked on hundreds of cases and the direct cross examination of victims by a perpetrator happens a lot. It is absolutely traumatising. We have got to get something in place to stop this, even if it means appointing a special advocate or even a law student to put the questions instead of the perpetrator.”
McCurley said the cuts to legal aid and the cutbacks in the whole court estate, meant the situation for vulnerable women within the family courts was getting worse. Women who have suffered domestic violence are entitled to legal aid if they can prove with documentation that they are a victim. Many women do not qualify and are forced to represent themselves before their alleged perpetrator.
Jane Monckton-Smith, an expert in domestic homicides, stalking and coercive control, said the family court system was antiquated. “The family courts need to up their game in order to prevent abusive men using the access they are being given by the courts to continue their behaviour,” she said.
Monckton-Smith said the case of Ben Butler, the father who killed his six-year-old daughter Ellie after a family court judge returned the child to him and his partner, should have been a warning sign about how some abusive men can manipulate the system and put women and children at risk. But that had not happened.
Legal aid cuts mean increasing numbers of men and women are representing themselves in court, increasing the chance of some men being able to use the process as part of their continuing harassment, abuse and controlling behaviour. Ministry of Justice figures released in October 2016 show in 80% of family law cases at least one of the parties was a litigant in person.
Zoe Dronfield set up a support group, I want my Mummy (IWMM), after her abusive ex-partner was given emergency custody of their child.
“I speak out because most women cannot,” she said. “The family court stipulates that they must not talk about their case, so the secrecy goes on and they are kept silent.”
Cases examined by the Guardian reveal that judges in some cases appear to be ignoring advice from agencies including police, social services and Cafcass officials, to allow an abusive man contact with a child.
Mandip Ghai, legal officer for Rights of Women, said: “Judges will bend over backwards to try and find a way for contact to take place. We have cases where there has been quite serious domestic violence and Cafcass has recommended no direct contact, but the judge finds a way of deciding to allow it anyway.”
Ben Butler, with his partner Jennie Gray. Photograph: Ken McKay/Rex/Shutterstock
Many courts, she said, were failing to carry out fact-finding hearings where there were allegations of domestic abuse and that could put a child at risk.
“If there is no fact-finding hearing to establish whether there has been domestic violence, then there is no assessment of the risk the child might be in. There needs to be some thought about how this situation can be improved,” she said.
A judiciary spokesman said the president of the family division has acknowledged in public a pressing need to address the issue of abusive men questioning their victims, and the wider issue of protecting vulnerable victims of domestic violence.
In another case, a district judge is allowing a father with a history of violence, who has made repeated threats to kill his ex and his child, to continue his case for contact with the child. His former partner said: “It shocks me that a judge can see all these violent threats, and see from his criminal record that this is a man who does what he threatens to do, and … consider allowing him contact with his child. That leaves me speechless.”
Claire Waxman, of Voice4Victims who are campaigning to end the abuse of process in civil courts, said the family courts were undermining the criminal justice process. “Women feel bullied by the court and they are terrified of their restraining orders being altered because they know it will put them at risk, so they agree to everything the family court says. It is shocking.”
Taken from The Guardian 22nd December 2016