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COVID-19 and domestic abuse: are integrated courts the solution?

Posted on 19 May 2020

On 10 May 2020, the Government announced that it would be changing its message from "Stay at Home" to "Stay Alert". However, for many people this will mean continuing to work from home, with restaurants and bars staying closed, and socialising outside your immediate household remaining restricted. This will be difficult for many people for a variety of reasons – but the continued lockdown will be particularly worrying for victims of domestic abuse who are isolated with their abusers.  

It has been reported that nearly three times as many women were killed by men as a result of domestic abuse during three weeks of lockdown as in the same period in the average year, and the Metropolitan police reported that in the six weeks up to 19 April, domestic abuse calls had risen by a third.

Over 40% of victims of partner abuse have at least one child under the age of 16 living in the household, and during the COVID-19 lockdown, there is an enhanced risk of abuse to children at home and a greater likelihood of this abuse going undetected.

Tackling domestic abuse and providing protection to victims has therefore become all the more urgent.

On 2 May, the Communities Secretary announced an additional £76 million in funding to support a number of charities, including those who support survivors of domestic abuse, vulnerable children and their families. The much publicised Domestic Abuse Bill, intended to provide a statutory definition of abuse and greater powers to support survivors of abuse, is progressing through Parliament, and in the Spring 2020 Budget, the Chancellor announced that the Ministry of Justice is to receive £5 million to fund a new integrated domestic abuse court, which will consider family and criminal matters in parallel.

The President of the Family Division, Sir Andrew McFarlane, has reported that allegations of domestic abuse are made in approximately 60% of family cases, and the purpose of these integrated courts is to provide victims with more consistent support and demonstrate that domestic abuse is being taken seriously. Indeed, proponents of the "one judge, one family" model point to the United States, Australia and New Zealand where there is evidence to suggest that the integrated courts increase convictions, decrease the likelihood of re-offending, enforce protection orders more effectively, and reduce case processing time.

How this will work in practice in England is unclear.

The proposal was made without consultation and the available evidence is limited. An integrated domestic violence court was piloted in Croydon in 2006, however only five cases proceeded through the court as a result of which it was found to be impossible to assess effectively whether the aims of the court had been fulfilled or even whether there was a need for the court at all.

Many factors will need to be considered, including:

  • The different burdens of proof in criminal vs civil proceedings. A claimant in civil proceedings must prove their case "on the balance of probabilities", whilst in criminal proceedings, the prosecution must prove their allegation "beyond reasonable doubt".
  • Transparency. Hearings in the family courts are generally in private and so only those involved can attend. In contrast, almost all criminal cases are held in open court.
  • The best interests of the child. The family court emphasises the importance of a child spending time (however limited) with both parents on the basis that this is generally accepted to be in their best interests, although careful consideration must be given to the potential risk of harm. An integrated court may provide greater protection for vulnerable children who are exposed to abuse, however this must be balanced against the potential breakdown of contact between children and non-resident parents.
  • The potential for bias. It is hoped that an integrated domestic abuse court will enable cases to be dealt with more effectively and efficiently by a judge who has an understanding about all of the concurrent proceedings and how they interrelate. However, this also gives rise to the potential risk of perceived bias. For example, if the abuser is found not guilty in criminal proceedings (which has a higher standard of proof), the judge may be perceived to be predisposed towards them in the family proceedings.
  • Legal prejudice. Similarly, consideration must be given to Article 6 of Human Rights Act 1998 - the right to a fair trial. For example, in the integrated court piloted in Croydon, to ensure compliance the same judge could only hear both criminal and civil aspects of the same case where (i) the criminal case had concluded before the family matter, or (ii) the defendant pleaded guilty to the criminal charge and consented to the judge continuing to hear the family case. It is hard to envisage a scenario in which (ii) would apply (why would the "defendant" agree?) and so one has to question whether issues with legal prejudice will undermine the efficacy of the project.
  • Specialist training for the judges. Judges sitting in the family and/or criminal division will need training in order to preside in these integrated courts, which many will agree is overdue. 

The focus on domestic abuse and how it can be tackled more effectively by the English courts, particularly in light of the COVID-19 crisis, is positive. However, whether integrated courts are the answer remains to be seen. The potential benefits are significant (increased protection for victims, better training for judges, and a more streamlined process) and most of the obstacles – barring perhaps legal prejudice – are surmountable. During the discussion at the 2nd reading of the Domestic Abuse Bill on 28th April, Robert Buckland QC MP confirmed that he would provide some clarity "soon" as to how the courts will be piloted, and we might reasonably expect that these extraordinary circumstances could accelerate their introduction.

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