Embarking on a journey through the Family court is often a stressful and emotional experience. The strain will be worse for those who are survivors of domestic abuse. What help is there for victims of domestic abuse in the family courts? Well, there are things which the court can do to make things a little easier, and these are called “special measures”.
Special measures are provisions which help a party or witness in family proceedings participate or give evidence. The family court has power to make ‘participation directions’ to assist a person during proceedings. These can include:
- A separate court entrance
- Separate waiting rooms for the parties
- Allowing the survivor to leave first after a hearing takes place
- Using screens in court (to prevent the witness from seeing the perpetrator and vice versa)
- Giving evidence via video / live link
- Assistance of a supporter or McKenzie friend
Practice Direction 12J: if, at any stage, the court is advised by the applicant, by Cafcass or otherwise that there is a need for special arrangements to secure the safety of any party or child attending any hearing, the court shall ensure that appropriate arrangements are made for the hearing and for all subsequent hearings in the case, unless it considers that these are no longer necessary.
Family Procedure Rules 2010: victims of domestic abuse are eligible for special measures if the court is satisfied that the quality of their evidence (or ability to participate in the proceedings) is likely to be diminished due to their vulnerability.
S63 Domestic Abuse Act 2021: where a party is, or is at risk of being, a victim of domestic abuse, they will automatically be eligible for special measures in family proceedings because the court will assume their ability to participate or give evidence and the quality of their evidence will likely be diminished.
There is acknowledgement by the President of the Family Division, Sir Andrew McFarlane, that victims of domestic abuse should always be consulted as to their preferred mode of participation in proceedings – whether that be in person, or by telephone or video.[LT1]
What you can do
It’s important to take steps at the start of your case to make sure that things are set up properly. Set out below are some key tips:
- Be proactive
Contact the court and request details about what special measures they offer and the processes they have in place.
- Communicate with the court if a victim of domestic abuse
Tell the court about the special measures you are requesting as soon as you know the hearing date so that the Court has time to respond. If you don’t hear back from the Court, you should chase this up 7 days before the hearing, and then again 2 days prior to the hearing. If you haven’t given the court plenty of notice, then you must let them know 48 hours prior to the hearing at the very latest.
- Don’t attend alone if a victim of domestic abuse
Decide who you would like to attend the hearing with you to support you. The court should usually allow either party to be accompanied in any hearing by a supporter (whether or not you are legally represented) or a McKenzie Friend (if you are not legally represented), though the Judge has discretion to exclude any supporter who disrupts the hearing. The supporter should ideally not to be directly involved in the proceedings. A suitable person may be a domestic abuse support worker or friend. The supporter / McKenzie Friend should be permitted to sit quietly in the same room as you, whether physically present in court or joining the hearing remotely.
- Think about your arrival and safe space
Avoid arriving at court alone. Attend with your legal representative, supporter or McKenzie Friend. If arranged, use a separate entrance.
Request the use of a conference room or separate waiting room to the other party. Think about arriving slightly earlier than scheduled to give you plenty of time to find a safe space and alert court staff to your requirements.
- Cross examination – know what the law says
There is a new law in place (Section 65 of the Domestic Abuse Act 2021) which says that where a party has been found to be an abuser, they cannot cross examine their victim. Instead, the court will appoint a solicitor or barrister to cross-examine them instead. The victim can’t cross-examine the perpetrator either, and again this would need to be done by a court-appointed solicitor or barrister. This is a huge step forward, and saves victims having to be subjected to questioning by someone who has abused them.
- Planning is key
Provision for special measures / participation directions should be included in the case plan for all hearings and recorded on the order arising from your hearing. You should raise this with your legal representative or the court directly.
It is just as important to put measures in place for remote hearings, and the Family court recognises that just because the parties aren’t attending in person, it doesn’t mean that a survivor will automatically feel safe.
You may find it comforting to know that you should never be put in a situation where you are alone with the perpetrator, whether in or outside of a courtroom, on a telephone line, or in video conference. Either a member of court staff should activate the hearing and remain on the line at least until the Judge has joined, or the Judge should activate the hearing and admit the other parties.
The court recognises the importance of the perpetrator not seeing details of your private, safe space via a screen. If you are unable to attend from a neutral space i.e. a lawyer’s office, and are joining the link from your home, ask the court to distort your background or request permission to join by audio only or have your video turned off.
You may seek permission to be excused from attendance at the hearing, if you are legally represented and the hearing is not one at which evidence will be given (as long as you are available to your representative to provide instructions throughout the hearing via telephone).
When it comes to court proceedings, planning is key, and this is especially important if you are a survivor of domestic abuse. Communication with your legal adviser, the court and your support network is crucial, and will help to make the whole process feel a lot less daunting.
Postscript. Additional reading material is contained in a number of books explaining the law to people going through a divorce or separation. There is a range in our specialist shop. We have links to a number of organisations and charities who offer additional advice and support on these pages. If you are considering looking for alternatives to going to family court, these pages have some quality material to read through.
Lucy Todd contributed to ‘Separating With Children 101’ 3rd edition, (Bath Publishing, 2023)