Violence against women and girls (VAWG) is a prominent issue in modern day society; it takes one look at the newspapers to see stories outlining yet another incident where women or girls have been the victims of violence. In this blog post Megan Cox, a crime and family practitioner, explores the links between the criminal and family justice systems in relation to VAWG and the lack of coordination between the two.
Efforts have been made to bring perpetrators to justice and support those who have been impacted, however, there remains a disconnect between the criminal justice system and the family justice system, with the key difficulty being that women and girls can find themselves trying to navigate two separate legal pathways which have different aims. The lack of coordination and communication between the two systems can lead to women and their children being left without the support they desperately need.
Systems at cross purposes: co-parenting
For some women, escaping an abusive relationship is only the beginning of a much longer battle. Often, that battle plays out in the courtrooms where the criminal and family justice systems fail to align.
A defendant may face charges for domestic abuse in the criminal justice system. They even may have been found guilty of offences of a domestic nature against their partner. However, in the family justice system, the paramount consideration of the court (under the Children Act 1989) is the welfare of the child: the courts consider “that involvement of the parent in the life of the child concerned will further the child’s welfare.”
In practical terms, this means that a person could have a conviction for violence towards the other parent, but the victim is still required to promote contact between the perpetrator of that violence and the child.
This is an example of where the systems are at cross purposes, because in a case where we have a finding that violence has taken place, it may still be encouraged for the child to be brought into contact with the offending parent.
This can have a number of knock-on effects, including further exposure of the child to violence, and also a failure to target problems at their root cause. The family courts have attempted to find suitable solutions for contact which prevent victims of domestic violence from being drawn into a dangerous situation. However, in a society where the majority of perpetrators of domestic abuse have, themselves, been exposed to domestic abuse as a child, it is concerning that there are not more available resources that can be offered to perpetrators of violence, aimed at changing their thinking and behaviours.
Further, there should be more resources for children who have been exposed to domestic violence at a young age, to combat any negative behaviours or trauma that they have suffered from, to prevent the cyclical nature of domestic abuse.
Failure to align: failure to protect findings
One of the ways by which local authorities attempt to combat exposure to domestic abuse is by securing ‘failure to protect’ findings. Clearly, there is a need for such findings, especially in a world where, as noted above, most perpetrators of domestic abuse have been exposed to domestic abuse during their own youth.
In some instances, where a mother has not supported a criminal prosecution against an abusive partner, a local authority will seek a ‘failure to protect’ finding against her. This is another example of where the criminal and family justice systems do not align when it comes to domestic abuse cases.
Due to the current Crown Court backlog, some trials are not being listed until 2027. This means women and girls who have come forward to speak out about alleged abuse are waiting for years before giving evidence.
This delay can also result in situations where pressure is exerted (by the perpetrator) for a victim to drop the charges. This can cause a dilemma for some; many women wish to move on with their lives once they have attained a level of personal safety, however, there is also pressure to support a connected prosecution for fear of criticism by their local authority.
A lack of support for such prosecutions may not only be understandable, but the best course of action for some, particularly where victims are actively being encouraged to co-parent with the perpetrator of violence against them.
Re-traumatising: finding of fact hearings and jury trials
Another difficulty vulnerable women and girls suffer is that, by virtue of the complete separation of the two systems, victims can be required to relive their trauma and experiences twice. They are often required to give evidence in the family court before a judge and barristers, which they are then cross-examined on. What follows are the inevitable challenges to their evidence, ie that they are not telling the truth or that they are inconsistent and an unreliable historian.
Once the case makes it into the criminal arena, the same victim has to recount the same story, only this time, due to the strict rules of evidence in the criminal courts, they are told that they must leave certain aspects out of their evidence, focusing only on the aspects which relate to the charges.
All of this must be done before 12 members of a jury, the judge and the barristers. Inevitably, they have to relive the trauma they have suffered again (this time in a courtroom open to the public), all whilst being cross-examined and being told that they are an unreliable witness.
Towards a more holistic approach
At first glance, it seems that there is little that can be done to solve this unfortunate position, and that is probably correct. At the very least, it is clear that more support needs to be provided for those who are brave enough to come forward and give evidence about their traumatic experiences, whether that be in the family and/or the criminal courts.
Another way of providing protection comes from combatting the issues which are precursors to violence at the first instance, be it by educating potential future perpetrators in order to prevent problems from developing at the source.
One other way in which the issues raised could be mitigated, is by assisting vulnerable women and girls in the aftermath of violence. Signposting routes to available support and highlighting the ways to report violence are some things that may be improved.
To protect women and girls effectively, there does need to be some overlap and co-ordination between the criminal and family jurisdictions. Addressing violence against women and girls requires more than just a conviction or punishment of individual acts of violence; there needs to be a holistic approach recognising the long-term impacts of abuse, as well as focusing on – and mitigating – the times when victims are required to revisit that trauma. Trauma which, in some cases, they may still be exposed to.
Megan Cox is a junior barrister at 7 Harrington Street Chambers, practising in both criminal and family law.