The Discordant and Disproportionate Ways the Criminal Law, Private Law Children and Public Law Children Systems Treat Domestic Abuse
Published on Exchange Chambers, August 2021. A version also appeared in Today’s Family Lawyer.
The landmark decision of the Court of Appeal in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 and the passage of the Domestic Abuse Act 2021 represent the most significant developments for the treatment of domestic abuse across the legal landscape in a generation. Yet are the criminal law, private law children, and public law children systems equipped to work together — or do they continue to work at cross-purposes, to the detriment of the very people they are designed to protect?
In public law, the paradigm that saw the adult victim as somehow deserving or responsible for the abuse and that demanded both an unrealistic level of insight and strength to protect the children still pervades. The adult victim in such cases is subjected to shame and legal jeopardy: required not only to acknowledge that their received abuse has inflicted harm on their children, but further required to undertake the enormously demanding task of progressing and healing toward ‘survivor’ in less than 26 weeks — for fear that otherwise this may be a factor resulting in the permanent removal of the children from their care.
As we continue to appreciate the Court of Appeal decision in Re H-N and the arrival of the Domestic Abuse Act 2021, it is time for us all — involved in family justice — to rethink and reframe our approach to domestic abuse in care proceedings.