Thursday, 27 January 2011

Mum's the word after new court ruling

‘Men and women who shout at their partners risk being thrown out of their homes under a sweeping ruling by judges yesterday’ said the Daily Mail on 27th January.[1]

This widening of the judiciary’s powers comes only a month after Stephen Cobb QC, chair of the Family Law Bar Association, warned that the proposed reform of legal aid will motivate parties to make false allegations (legal aid will only be available to those who allege domestic violence). [2]

The risk of false allegations grows, while punishments become more draconian (a verbal argument could result in eviction and homelessness, a conviction, and restricted contact with children). Are the courts likely to be impartial should both parties claim they were shouted at? Should you be worried about bias or prejudice?

Sir Nicholas Wall, our President of the Family Courts said only in October ‘In my experience, physical domestic abuse is largely a male problem. There are, of course, women who physically abuse their partners and their children, but they are, in my experience, the minority. This is not a politically correct opinion. The politically correct view is that domestic violence affects both sexes and is perpetrated by both.’[3]

In family law, your guilt or innocence is decided on what a judge believes to be probable. It is not necessary for an allegation to be proved beyond all reasonable doubt, as happens in criminal trials. This is why in family law, it is even more important that judicial opinion does not prejudge, and is ideally based on fact.

The British Crime Survey records that 1 in 4 women and 1 in 6 men are victims of DV.[4] In 2008/9, 40% of victims of severe force were male[5] (629,000 men were victims of DV). The experience of a good number of litigants I know is that the courts are indifferent to female violence in family cases. The belief that domestic violence affects both sexes isn’t just politically correct, it is a fact, and not one to be trivialised by our leading judge.

If contact denial and the making of false allegations were included in the new definition of domestic violence, the majority of victims might even be male. Male or female, aren’t both entitled to the court’s protection, and the recognition that such abuse is not a gender issue, but one of control and violence (whether physical, emotional, financial or psychological)?

[1] Daily Mail – Steve Doughty ‘Shout at your spouse and risk losing your home: It’s just the same as domestic violence warns woman judge (27.01.2011)

[2] Law Society Gazette ‘Legal aid cuts spark child abduction fears’ (27.01.2011)

[3] Resolution - Sir Nicholas Wall – ‘Keynote address at domestic abuse conference’ (15.10.2010)

[4] British Crime Survey 2004/5

[5] British Crime Survey 2008/9 – Statistical Volume No 2 (England and Wales) – see Chapter 3 (table 3.01 p.70)