Few people outside the justice system – and victims of domestic abuse itself – realise just how damaging are the current delays in the justice system, writes David Hodgson, a Partner in our Family & Divorce team.
About a year ago my colleague Louise Barretto also wrote here that she often feels that some of our clients have been living with domestic abuse for many years, without even realising it.
They know that something is not right, but it would not have occurred to them that what they are experiencing constitutes a criminal offence. Even if pointed out to them, they will often not wish to take the matter further, but simply try to get divorced as soon as possible and move on with their lives. This approach is understandable and, in many cases, sensible, but the victim needs to be attuned to the fact that harm would have been caused to them and they may require some professional help to assist them in recovering.
Imagine then how much worse their condition is being made now that Family court hearings are being pushed back until Spring 2023 as the court system falters under the weight of its backlog. Any court appearance is sensitive, but the emotional nature of the Family courts adds stress to an already challenging experience.
This recent article in CityAM even goes so far as to suggest that, “Court hearing delays are putting victims at greater risk.”
“Many couples petitioning for a divorce have little option but to continue to live together in the family home while they await a judgement that will decide their financial future.”
We are all accustomed to thinking of physical abuse when the term ‘domestic violence’ is used. The stereotypical black eye comes to mind, but since 2015 the definition of domestic abuse has been expanded for the first time, criminalising non-physical abuse which so often occurs in the domestic setting.
Non-physical domestic abuse
Since December 2015 Section 76 of the Serious Crime Act makes coercive or controlling behaviour in intimate or family relationships a criminal offence. This has been extended by the Domestic Abuse Act 2021 to cover such abuse post separation.
This criminal offence recognises psychological and emotional harm which can result from a pattern of behaviour and the need to consider and deal with controlling or coercive behaviour in domestic (family or close) relationships.
Although the definition of domestic abusive has been expanded, and made a criminal offence, the challenge is being able to provide evidence of the behaviour because, unlike a physical injury, it may not be obvious or noticeable to others.
This does not make it any less harmful.
The offence is concerned with repeated behaviour that has a serious effect on one person, either by making that person fear that serious violence will be used against them or by causing that person serious alarm or distress, which has a substantive and adverse effect on their usual day-to-day activities. The event is therefore designed to include a range of behaviours which, when taken altogether, seriously affect the victim due to their controlling or coercive nature.
It is often happening behind closed doors and is largely undetectable.
The guidance issued by the Home Office on this offence acknowledges that this is primarily “a form of violence against women and girls and is underpinned by wider societal gender inequality”.
Generally, coercive control can involve micromanagement of everyday activities quite often associated with women in their roles as homemakers, parents and partners. This was a frequent theme of the story we followed here.
Examples of this behaviour can be controlling how the victim dresses, cleans, looks after the children, and keeps the house. For this to constitute domestic abuse, the abuser’s demand must be linked with a believable threatened negative consequence if the victim doesn’t comply.
Another example is the withholding of finances or other resources. This means that the victim feels compelled to comply to avoid the negative consequences that are threatened. Sometimes the tactics of coercive behaviour are confused or misinterpreted as signs of affection or caring.
Emotional abuse is now clearly recognised as grounds for a separation.
Many clients have endured this kind of behaviour for years, and their reasons for doing so are often perfectly understandable. Some of these may be: they believe this is “normal” behaviour, or they think it will improve; they want to do the best for their children or because they are fearful of what the consequences of change might be.
Objectively, one party may be experiencing emotional abuse if he or she is:
- often left humiliated by something their partner has said or done
- unable to express disagreement with their partner without being subjected to criticism and ridicule
- constantly being told by their partner that they are worthless or inadequate
- made to feel guilty for no good reason
- blamed for everything going wrong regardless of the circumstances
Occasionally the isolation of the victim from friends and family and the policing of their behaviour and clothes can be seen as signs of love rather than jealousy. The context is very important.
Abuse has been likened to an elephant – not easy to define but identifiable when seen.
The people involved in assessing, prosecuting, and helping in these cases will need special training. They need to be able to understand both the behaviour of the perpetrator of the abuse and all about the harm that it inflicts upon the victim.
The first step has been taken, in recognising that this behaviour exists, and that it causes harm, and that something needs to be done about it. The next step will be to ensure that the proper training is in place and that these offences can be successfully prosecuted.
In the meantime, our Family court delays often leave the parties with a feeling of injustice, if there are long delays after a rush to commence proceedings. In the short-term victims of abuse deserve the resolution only the court can achieve. In the long term the longer the system is seen as unable to cope with its workload the reputation of the courts will be diminished.
Bishop & Sewell’s Family lawyers have the knowledge and experience to guide you through these challenging times and have rankings in the Legal 500 and Chambers & Partners for their expertise.
The above is accurate as at 22 November 2021. The information above may be subject to change during these ever-changing times.