Child Proceedings In The Family Court And Domestic Violence Including Coercive Control
Our experience of this subject is vast. We have experience dealing with it in the court room, seen judges’ and magistrates’ appalling views on it, interviewed many people who have suffered from it, and interviewed professionals who deal with domestic violence day in and day out. The main thing we have realised is that, although these two words ‘domestic violence’ are well known, not many people actually know what it entails, what is does to individuals, and what the law says that it is.
There are also many pre-conceived ideas and notions that society holds about who is a victim of domestic violence and how they should behave. It is these pre-conceived ideas that are rife within the male-dominated UK family courts.
WHAT CONSTITUTES DOMESTIC VIOLENCE, INCLUDING COERCIVE CONTROL?
‘Domestic violence’ is an abusive incident, or a series of abusive incidents, over a period of time against you by another whom can either be your partner, spouse, family member, or carer.
The term ‘domestic violence’ encompasses multiples types of abuse. SOME of these are –
- Physical abuse.
- Psychological & Emotional abuse.
- Economic & Financial abuse.
- Sexual abuse.
- Verbal & Non-verbal abuse.
- Cultural abuse.
- Spiritual abuse.
- Neglect.
- Online abuse.
- Litigation abuse
- Coercive control.
The list above can be broken down into the following behaviours. Many of these behaviours overlap into the above different types of abuse –
- Biting, slapping, kicking, pushing, punching, pinching, dragging, scratching, choking, or stabbing you.
- Throwing things at you with the intention to harm or scare you.
- Threatening you with anything that can be used as a weapon, such as, kitchen utensils, bottles, or irons.
- Burning or scalding you.
- Trying to poison you.
- Refusing you access to medical help.
- Force-feeding or over-medicating you.
- Attempting to reduce your self esteem on a regular basis. Yelling at you, mocking you, insulting you, making fun of you in private, and in public.
- Constantly blaming or falsely accusing you for all that goes wrong even when it is not your fault.
- Controlling your access to money and what you spend it on.
- Giving you the silent treatment.
- Taking away affection and love to keep you in your place or cause distress.
- Harassing and stalking you in person or online.
- Putting you down on social media.
- Revenge pornography.
- Isolating, humiliating, intimidating, and controlling you by using or threating physical or sexual violence.
- Forcing you into sexual acts.
- Discouraging/not allowing you to meet with your family and friends.
- Discouraging/not allowing you to go outside or to any public place.
- Constantly asking about and checking on your whereabouts.
- Threatening to take your children away.
- Threatening to have you beaten up.
- Any actions taken to frighten, harm, or punish you.
Coercive control is a lesser known form of domestic violence. It is a pattern of behaviour, such as threats, violence, intimidation, mind games, bullying, and financial abuse intended to frighten and control you, creating an unequal power dynamic in your relationship. Coercive control is difficult to recognise and often prevents you from leaving the relationship.
GOVERNMENT DEFINITION
“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexual orientation. The abuse can
encompass, but is not limited to:
- Psychological
- Physical
- Sexual
- Economic
- Emotional
Controlling behaviour
Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour
Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”
HM Government, Transforming the Response to Domestic Abuse: Government Consultation (2018), p13
ARE THERE ANY DOMESTIC VIOLENCE ACTS PASSED BY PARLIAMENT?
2011 – Sarah’s law was passed in 2011 and concerns the child sex offender disclosure scheme. Under this scheme, you (the parent, carer, or guardian) can ask the police for information on people who have contact with your children regarding convictions for sexual offences against children. The police can refuse your request. Sarah’s law is named after Sarah Payne, an eight year old girl who was abducted and murdered in 2000 when she was visiting her grandparents. You can call 101, visit a police station, or make an online application.
LINK TO MAKING AN APPLICATION UNDER SARAH’S LAW
2014 – Clare’s law was passed in 2014 and concerns the domestic violence disclosure scheme (DVDS). Under this scheme, you can ask the police about the history, offences, violent behaviour, convictions of domestic violence, or anything they hold on record that could put you at risk against a person whom you may be in a relationship with. Information can only be given to the person who is at risk or someone who can protect them. At present, the police aim to give you the information within 35 days. Of course, many police forces across the country fail to meet this target set by the home office. The police can refuse your request. Clare’s law is named after Clare Wood who was killed by her partner in 2009. She didn’t know of his violent history against women. You can call 101, visit a police station, or make an online application.
LINK TO MAKING AN APPLICATION UNDER CLARE’S LAW.
2015 – In 2015 (section 76 of the serious crime act 2015), a law was passed that if your spouse/partner/family member or carer is using coercive control against you after 29-12-2015, then this is now a crime and can be reported to the police.
LINK TO CPS NOTES ON COERCIVE CONTROL
2021 – The latest domestic abuse act was passed by the government in 29-04-2021. This act supersedes all previous acts.
LINK TO GOVERNMENT DOMESTIC ABUSE ACT 2021
LINK TO GOVERNMENT DOMESTIC ABUSE BILL RECEIVES ROYAL ASSENT
LINK TO THE LAW SOCIETY NOTES ON DOMESTIC ABUSE ACT 2021
WHO CAN SUFFER FROM DOMESTIC VIOLENCE? IS THERE A SPECIFIC TYPE OF PERSON IT CAN HAPPEN TO?
This question is important. It is a common myth that only weak, uneducated women/men of a certain class or culture suffer domestic violence. We have even heard people say that domestic violence only happens to those individuals who let it happen to them. This is false. Nobody lets domestic violence happen to them. Many individuals do not even know when it started to happen to them and how it took control over their lives. But it did. Domestic violence can happen to anybody, and it does.
No matter who you are, how educated you are, whatever you background and ethnicity and what status in society is – you can still suffer from domestic violence.
WHO CAN YOU TURN TO FOR HELP?
- GP – Contact your GP and tell them what is happening. They will refer you for help.
- POLICE – You can also contact the police. They will protect you and refer you for help.
- CITIZENS ADVICE BUREAU – They will inform you of all your options, guide you, and refer you for help.
- CONTACT AN ORGANISATION DIRECTLY – You can either contact a domestic violence organisation directly or be referred. Once you contact them, they will allocate a case worker and this case worker will then work with you.
LINK TO L.I.P HELP GUIDE FOR CONNECT WITH REGISTERED CHARITIES THAT COULD HELP YOU
WHAT RIGHTS DO DOMESTIC VIOLENCE SUFFERERS HAVE IN CHILD PROCEEDINGS?
- It is now commonly accepted that a judge will not allow your ex-partner to cross-examine you in the family court if there has been domestic violence.
LINK TO GOVERNMENT FACT SHEET FOR CROSS-EXAMINATION IN FAMILY PROCEEDINGS.
As of 21-07-2022 many court forms such as form C7, C100, form C2, C1, and Fl401 now contain a statement that is two paragraphs long. The paragraphs are about the questioning of a victim of domestic violence or a witness by the alleged perpetrator or the questioning of an alleged perpetrator by the victim. If your case involves domestic violence and your court hearing is one where you or your ex-partner will give oral evidence then the court may send forms EX740 (the party making the abuse allegation) and EX741 (the party accused of abuse) to you and/or your ex-partner along with the court order informing you of the date of the oral hearing. You and/or your ex-partner will need to complete forms EX740 and EX741 and return them to the court. Once the court has one or both of these forms then the court can consider whether to prevent the questioning or cross-examination in person of either party by each other. You can also make this application to the court by yourself if you DO NOT wish to be cross-examined by the perpetrator or the accuser.
LINK TO OUR L.I.P HELP GUIDE FOR FORM EX740
LINK TO OUR L.I.P HELP GUIDE FOR FORM EX741
- You can request and are entitled to a screen in the court room so you do not have to face your ex-partner.
- You can request and are entitled to, where possible, a separate room where you can wait before your court hearing starts.
- You can request the judge to keep your ex-partner in the courtroom for 10-15 minutes while you leave the court premises if you think they may follow you into the carpark or onto public transport.
- You can make a request to the judge for a remote hearing by video link if you feel that coming into contact with your ex-partner will have a detrimental effect on you. You may need medical evidence for this.
WHAT PRE-CONCEIVED IDEAS AND NOTIONS DO JUDGES, MAGISTRATES, AND THE COURTS HAVE REGARDING DOMESTIC VIOLENCE?
We forget that judges and magistrates are also human beings. They hold their own preconceived ideas of what victims of domestic violence should look like, act like, and be like. And, unfortunately, these notions follow them into the courtroom. Many do not understand, or have not been trained on, the intricacies of domestic violence and how it takes control and power over an individual without them realising it. The confused emotional state of the victim eludes many judges and magistrates, leaving them having doubts about the victim’s testimony and giving benefit of the doubt to the perpetrator. Many victims of domestic violence are faced with judges/magistrates trying to wrap their heads round the following questions –
- How could you let this happen to you?
- Why did you allow this?
- Why did you not report the abuse earlier?
- Why did you stay in the marriage?
- Why did you carry on as if nothing was happening?
- Why didn’t you think about the children?
- Why did you not fight back?
- You must have done something to make this happen to you?
- How can a calm articulate individual who comes across as together in court, possibly be a victim of domestic violence?
- If you cannot recall certain facts or are confused, then you must be lying?
Judges/magistrates’ outdated thoughts and understanding of domestic violence ensure that they constantly make the following catastrophic mistakes in the family courts –
- Judges/magistrates often disregard historical domestic abuse and only take into account recent abuse and violence. This doesn’t allow a pattern of behaviour to be shown or that the perpetrator is a serial abuser.
- Many judges/magistrates regard domestic violence as only physical and have no understanding that it also constitutes many other things.
- Judges/magistrates think domestic violence and abuse ends at separation. They do not understand post-separation abuse, and bullying by proxy in divorce. Courts are blind to the fact that litigation and economic abuse are also a continuation of domestic abuse.
LINK TO OUR L.I.P HELP GUIDE FOR BULLYING BY PROXY IN CHILD PROCEEDINGS
LINK TO OUR L.I.P HELP GUIDE FOR CHILD PROCEEDINGS IN THE FAMILY COURT AND POST SEPARATION ABUSE
- Judges/magistrates often think the victim is making the domestic violence up as a way to alienate the perpetrator from the children.
- Many judges/magistrates will accept testimony of friends, family, and colleagues for the exemplary behaviour of the perpetrator in public. The testimony of the victim regarding the perpetrator’s behaviour in private is viewed with caution as it is so different. Often judges cannot understand why the behaviour is so polar opposite and give the benefit of the doubt.
- Judges/magistrates think the only answer for a child not liking the perpetrator is because the victim has brainwashed the child against the perpetrator. The fact that the child has experiences and thoughts of their own is often disregarded.
- Judges/magistrates think that when a victim of domestic abuse struggles to re-collect specific details of abuse that the person is lying or making up events. Often victims bury traumatic events deep into their brain and try to forget as a mechanism of coping. Being confused, finding it difficult to re-collect events are all part of the post period of domestic abuse.
- Judges/magistrates can think that domestic violence didn’t occur because the victim did not fight back and allowed it to continue. Often a victim is unable to fight back because the perpetrator is stronger and the victim is scared.
- Judges/magistrates do not understand why a victim of domestic violence has stayed in an abusive relationship. It is often because they are financially dependent upon the perpetrator and have no where else to go. They often cannot afford to feed the children themselves or maybe they cannot break up the family unit due to cultural or societal reasons.
Some horrific examples of the above are –
- In one case a judge said the words ‘I wouldn’t have let that happen to me’ out aloud about an incident that was described to her by a victim.
- In another case a judge smirked when a victim’s ex-partner’s barrister compared his threats to kill her with that of a passenger throwing empty threats at a bus driver who is late.
- Another judge said ‘go get a job’ when a victim complained her ex-partner was not allowing her access to her money (please be aware – we said access to her money NOT he was not giving her money. The marital assets and money are equally hers).
- One of the most traumatising incidents we heard about was when a magistrate sighed annoyingly at the fact a victim had NOT encouraged her daughter to attend court as a witness of the domestic violence the victim had suffered at the hands of her ex-husband. Her daughter was not mentally ready and was scared to go up against her father in court. There was no understanding from the magistrate that the victim chose not to push her daughter to give evidence against her father. Her daughters mental welfare for her was far more important. The magistrate showed no compassion and empathy why the daughter had chosen not to give evidence.
We found many judges/magistrates were cold, out of touch, in need of retraining, biased, opinionated, and discriminatory towards victims of domestic violence especially if they were litigants in person and had been abused.
Domestic violence is a crime, it is not acceptable and definitely not your fault. Please do not let any judge, magistrate, or family court make you feel as if it is.
WHAT IS VICTIM SHAMING IN DOMESTIC VIOLENCE?
Victim shaming is the process where the onus and blame for domestic violence falls on the victim and not the perpetrator. The victim will be asked questions such as, why they let it happen, why they didn’t prevent it, and if they benefited from it in any way. They may be ridiculed and judged as a result. The focus is not on the person committing the domestic violence. Somehow the victim has to take some responsibility, has a part to play, or is responsible for it starting and continuing.
Many victims of domestic violence feel no one will believe them if they come forward, and when they do, they often get asked why didn’t report it sooner or why they allowed it to happen. Many victims of domestic violence are made to feel guilty as to why they stayed in the relationship and put up with the abuse, often for years. During our research we recall a magistrate actually said, ‘I wouldn’t have put up with that’, when a victim spoke in court about the domestic violence she had suffered. It made the victim feel embarrassed and inferior to her. The magistrate made it seem as if she was a better person because she would have fought back whereas the victim didn’t. Some judges/magistrates believe that domestic violence didn’t occur because the victim didn’t fight back or accepted it as part of their day to day reality.
PARENTAL ALIENATION USED AS A COUNTER ARGUMENT FOR DOMESTIC VIOLENCE IN FAMILY COURTS
Very often in family courts the perpetrator will say that the victim is making up allegations of domestic violence so that they can alienate the perpetrator from the children. It is known that many victims think twice about making abuse allegations in case they are accused of parental alienation.