Concerns raised about family violence and FDR; UK research finds screening practices inadequate

Women's Refuge, some family lawyers and chair of the Glenn Inquiry Bill Wilson QC have raised concerns about the impact of family court reforms on women and children experiencing violence. These include the risk of women facing abusive partners in mediation and/or having to file their own applications and represent themselves. For further detail, see the media stories below.

'Family justice' reforms aiming to keep disputes out of court have also been carried out in England and Wales. Research recently carried out by the Universities of Exeter and Kent has aimed to establish an evidence base on the awareness, usage, experience and outcomes of Family Dispute Resolution (FDR) processes to inform practice and policy.

The study, Mapping Paths to Family Justice, applied both qualitative and quantitative methods to analyse the three most common forms of FDR in England and Wales (Mediation, Solicitor Negotiation and Collaborative Law), from both client and practitioner perspectives.

The research raised concerns in relation to screening for domestic violence before mediation. Despite legislation and policy requiring practitioners to screen for domestic violence, the research found it was "not currently done sufficiently rigorously or consistently."

Analysis of client experiences found:

• A number of cases involving violence were referred to mediation.
• A number of cases where effective screening was sidestepped.
• A clear correlation between failed mediations and cases where there were violence or coercive control issues.

A number of examples are provided.

Analysis of practitioners' views found:

• Practitioners held "a divergence of views" on whether to use individual or joint Mediation Information and Assessment Meetings (MIAMS) and on if or when cases of domestic violence were suitable for mediation.
• Non-mediators were more likely than mediators to view mediation as inappropriate if domestic violence was disclosed.
• A commonly held theme among mediators was their ability to handle certain kinds of domestic violence cases, rather than a concern for the risks involved for the victim and children.

The research also found the removal of legal aid in many cases placed additional pressure on practitioners to include borderline cases of violence and coercive control, as self-representation in court was seen as a "worse fate" for the vulnerable party.

The research concludes by recommending best practices for FDR processes. Best practices specific to domestic violence included:

• Effective screening for client and case suitability is needed in all processes, combined with appropriate responses to the situation.
• Practitioners could do more to address the support needs of victims of domestic violence and abuse including referrals to and working with domestic violence support services.

New Zealand's Family Court reforms promote the use of FDR to determine issues such as arrangements for children when couples separate. The use of FDR has been criticised, with concerns about the methods used to identify whether someone is experiencing family violence and the safety of parents and children experiencing domestic violence.

New Zealand has signed a Memorandum of Understanding with England and Wales allowing for regular information sharing about family justice reforms.

Media:

Legal changes cut court cases, Hawke's Bay Today, 20.10.2014

Refuge has Family Court doubts, Radio NZ, 14.10.2014

Changes pose 'major risk' to women, Radio NZ, 13.10.2014

Image: My Trusty Gavel by Brian Turner. Licence: Attribution 2.0 Generic (CC BY 2.0)