"What about my right not to be abused?” Domestic abuse, human rights and the family courts

“I don’t believe I had any rights in court. I don’t believe I had any equality, or any equal rights in court. It never came across like that. We were there to make contact happen between father and child, and that was it” - Anonymous survivor of domestic abuse

The family courts are an obvious venue where human rights matter – after all they make life-altering decisions about children’s lives and children’s safety. They should be a place of safety, where children’s rights are put first and where the concerns and fears of survivors of domestic abuse are listened to and respected. However, recent research undertaken by Women’s Aid and Queen Mary University of London provides a stark reminder of what happens when this is not the case.

At Women’s Aid we launched the Child First: Safe Child Contact Saves Lives campaign in 2016. As a result of our campaign, there has been some progress in making child contact arrangements safer in cases where there has been domestic abuse. However, survivors of domestic abuse continue to raise concerns about unsafe child contact and inadequate understanding of the links between domestic abuse and child wellbeing and safety.

For this reason we decided to partner with Professor Shazia Choudhry at Queen Mary University of London. Professor Choudhry has drawn particular attention to the applicability of the human rights framework to issues of child contact in situations where there has been domestic abuse. Talking to survivors about rights – using plain language around the right to a fair trial and the right to life – helped uncover clear problems with the culture and practice in the family courts that affect the courts’ ability to do justice, safeguard against further trauma and prioritise children’s safety.

Human rights, domestic abuse and the family courts

The European Court of Human Rights has made it clear that domestic abuse will fall within the scope of Articles 2, 3, 8 and 14 of the European Convention on Human Rights (ECHR) and that a state can be held to be in breach of those rights if they have not taken sufficient steps to protect survivors from further abuse.

Under Section 6 of the Human Rights Act (HRA), public authorities – including the family courts – are not allowed to act in a way that is incompatible with the Act, and under Section 3 of the HRA, courts are required to interpret all legislation ‘so far as is possible to do so’ in a manner which is compatible with the Convention rights. This is particularly relevant when the court is faced with survivors of domestic abuse and their children who may be at risk of further abuse as a result of contact and who are in a particularly vulnerable position.

What do the experiences of women in our research sample tell us about human rights?

Survivors told us that they were not consistently being given a safe and fair hearing in child contact cases where there is an allegation of domestic abuse and this prevented them from effectively advocating for their child’s best interests in the family courts.

Some survivors were further abused by their former partner during the court process. One quarter of survivors (24%) surveyed reported that they had been cross-examined by their abusive ex-partner during the court hearings, while three in five survivors (61%) reported that there were no special measures – for example, separate waiting rooms, different entry/exit times, screen or video link – in place in the court despite allegations of domestic abuse in their case. Our research indicates that in these cases, women’s safety had been compromised to such an extent that they were at further risk of abuse under Article 3 of the HRA: the right to be free from degrading treatment.

Women did not feel their cases were heard fairly in the family court, indicating that their rights to a fair trial under Article 6 of the HRA were not being met. They described submitting evidence of domestic abuse that was not considered; a lack of fact finding hearings; poor legal advice; and inconsistencies between the approaches of different judges and other family court professionals. Women felt they were viewed through a lens of gender stereotypes; as over-emotional, difficult, weak or unstable women, and they encountered victim-blaming attitudes.

We found inconsistent understandings of, and use of arguments around, Article 8 of the HRA: the right to privacy and family life. In our sample, it appeared that the rights to family life of perpetrators of domestic abuse were given higher priority by the courts than those of the survivors of the abuse. This is despite the fact that Article 8 rights are qualified rights which may be interfered with in order to protect the rights of another or the wider public interest, unlike Article 2 and 3 rights, which are absolute rights, and cannot be modified in the same way.

Our findings also suggest that Articles 3, 12 and 19 of the United Nations Convention on the Rights of the Child (UNCRC) were not consistently upheld; in some cases the courts had dismissed evidence of child abuse and/or ordered unsafe contact, and the rights of children to have their views respected, best interests considered and to be protected from violence, abuse and neglect were ignored. Over two thirds of survivors (69%) reported that their abusive ex-partner had also been emotionally abusive towards their children, while almost two in five survivors (38%) reported that their abusive ex-partner had also been physically abusive towards their children. Yet unsupervised contact with an abusive parent was most likely to be awarded in the cases in our sample. This reinforced findings from a recent report by Cafcass and Women’s Aid which revealed that unsupervised contact was ordered at the final hearing in almost two in five cases where there was an allegation of domestic abuse (39%).

Survivors’ lack of access to a safe and fair hearing is clearly putting children’s wellbeing and safety at risk. In the most extreme cases, women felt their own and their children’s rights under Article 2 of the HRA: the right to life, had been threatened by the ordering of contact which placed them in unsafe proximity to their former abusive partners, or the revealing of confidential information about their address or location.

What will make the family courts a safer place for survivors of domestic abuse and their children?

Overall, the research highlights the damaging effects of a toxic combination: a lack of understanding of the dynamics of domestic abuse and the devastating impact it has on children, ingrained gender discrimination, and incorrect interpretations of human rights. As a result, we make a range of recommendations. These include:

  • An independent inquiry into the handling of domestic abuse by the family courts
  • Improved education and awareness raising on domestic abuse, human rights, theories of ‘parental alienation’ and equality for all professionals involved in child contact cases
  • Ban cross-examination in family courts of survivors by their abusive former partners
  • Guarantee special measures for survivors of domestic abuse in the family courts
  • Better, empowering, specialist support for survivors of domestic abuse throughout child contact proceedings
  • Take a safer approach to unsupervised contact, with no unsupervised contact for abusive parents where there are ongoing criminal proceedings for domestic abuse

Only by challenging the inequalities and discrimination within the culture of the family courts, and promoting understandings of human rights that apply to all, can we make sure that ‘Child First’ becomes the fundamental approach in child contact proceedings – not just in rhetoric, but also in reality.

Find out more about the report here.

Jenny Birchall, Research and Policy Officer at Women’s Aid and co-author of ‘“What about my right not to be abused?” Domestic abuse, human rights and the family courts’