How the British Legal System is Highjacked by Abusers

Leaving an abusive relationship is supposed to be the hard part. At least that’s what we think. Somebody finally leaves and the relationship ends, the victim and their family and friends breathe a sigh of relief. The police may have become involved. There is often a sense that, however difficult the recovery ahead may be, the danger itself has passed and life can begin to rebuild.

Yet the more I work with and read about post-separation abuse and the family court system, the more I have found myself wondering if the legal system itself misunderstood the problem entirely, despite the research. Because for many women, particularly those who share children with an abusive former partner, leaving is not necessarily the end of the abuse. In some cases it appears to be the point at which the abuse simply changes form and it is well documented, yet the courts very often fail to identify the continuation of abuse.

The shouting stops but now a judge who hasn’t lived with the abuser insists on contact about children, because they’ve become leverage. Often only wanted as a prop to punish the victim for speaking up. The actual interest in the child/ren often remains low from abusers. The threats are now legally bound up as solicitor’s letters and the intimidation is in legal language. The need for power and control remains exactly the same, but it is now expressed through procedures, paperwork and systems that were originally designed to help families resolve disputes.

What makes this particularly uncomfortable is that the concern does not come solely from campaigners or survivors. Over the last decade it has increasingly appeared in government reports, parliamentary evidence, judicial guidance and reviews commissioned by the justice system itself. The 2020 Harm Panel Report, commissioned by the Ministry of Justice, concluded that there were deep-seated and systemic problems in the way domestic abuse was understood and handled within the family courts. The report heard evidence from survivors, legal professionals, academics and judges, ultimately concluding that many children and adult victims were being harmed by processes that frequently failed to recognise the reality of domestic abuse and coercive control.

That phrase, coercive control, appears repeatedly throughout modern discussions of abuse and for good reason. One of the most important developments in recent years has been a growing recognition that abuse is not simply about physical violence. It can involve surveillance, intimidation, manipulation, financial control, isolation and the creation of fear. It’s often less about individual incidents and more about patterns of behaviour. The objective is sometime injury, to the person or to feelings, harm to pets at times too. Sometimes it is influence, or access, the ability to remain present in another person’s life whether they want that presence or not.

Viewed through that lens, some of the accounts emerging from family court proceedings become difficult to ignore. The Harm Panel heard repeated descriptions of survivors being drawn back into proceedings again and again. Applications were made, challenged, amended and renewed. Hearings stretched across months and sometimes years. Financial resources were drained and it could be said this is deliberate at times. Worse still if the abuser claims they are the victim and seeks Legal Aid by which to torment the victim further. The acceptance of Legal Aid is almost a precluding status for some, influencing far more than it should and yet we know the Legal Aid system is abused too. For many dragged through court employment was disrupted. Anxiety became chronic and the abuser delights in it, feeling they’ve created justice when they’ve been rejected for their actions. Lives remained organised around the next court date, the next hearing and the next application. The business of living life is on hold.

What strikes me with every account I hear, or read, is how familiar the pattern sounded. Remove the legal language and many of the underlying dynamics are instantly recognisable. One person controls the timetable, determines when the next disruption arrives. One person remains unable to move on because another hearing, another challenge or another application may appear at any moment, they lose faith in the “justice system” to protect them. The mechanism is entirely different from the abuse that occurred within the relationship, but the experience described by many survivors often sounds remarkably similar.

This is where something called Section 91(14) of the Children Act becomes particularly interesting. Most people have never heard of it, yet its existence tells us something important. Section 91(14) allows a court to require somebody to seek permission before making further applications concerning a child. In practical terms, it can be used to prevent repeated and unnecessary litigation. The fact that Parliament created such a provision is significant because it represents an acknowledgement that repeated court proceedings can themselves become harmful. Government guidance issued alongside the Domestic Abuse Act went further still, explicitly recognising that repeated applications may be used as a means of continuing abuse after separation.

That raises an obvious question. If the law recognises the risk, why do so many survivors continue describing exactly the same experience?
Part of the answer appears to lie in a culture that developed over many years within the family justice system. The principle itself is difficult to argue with. Most children would benefit from meaningful relationships with both parents. In fact we can see from psychology and studies that children will usually thrive more with two good parents who show interest, spend time with them and meet all the basic needs with love. Really it goes without saying, but the evidence stacks over and over that outcomes are better by enormous measures, acting as a safeguard where most will attain in education, go on to work, avoid criminality, early pregnancy and generational cycles of abuse, poverty, low attainment, poor education and criminality. Problems arise when the understandable desire to maintain parental involvement begins to outweigh concerns about safety, coercion or abuse. The Harm Panel repeatedly identified what it described as a pro-contact culture, a tendency for the maintenance of parental relationships to become the starting point from which decisions were made, sometimes at the expense of properly recognising domestic abuse. This begins the downfall of children into what we know as ACE’s, adverse childhood experiences. The measures which cause significant harm.

That finding matters because it helps explain why so many survivors describe feeling as though they are expected to prove abuse repeatedly whilst simultaneously being encouraged to facilitate contact. The concern raised by campaigners and domestic abuse organisations is not that children should be denied relationships with loving parents. The concern is that abuse can sometimes be minimised, reframed or treated as evidence of conflict rather than evidence of control. Once that happens, safeguarding concerns can begin to look like hostility and fear can be interpreted, deliberately and maliciously, to look obstruction. Victims are once again manipulated successfully if they show strength and resilience, newly interpreted by the uninformed as belligerence, attack or disdain.

We’ll follow with more articles about continued abuse though the courts, come back soon.