Not my area…

Money lawyers may dismiss what follows as the deranged ramblings of a mere children lawyer, who rightly gave up money work as ‘too hard’ – but hear me out…

I spent a large chunk of last week listening to – and live tweeting – the conjoined domestic abuse appeals heard by the Court of Appeal on Tues-Thurs. Now this is not the first time I’ve thought about the implications of domestic abuse across the broader spectrum of Family Court work and beyond my little niche, but it has given rise to some musings about where we are at in terms of their impact on financial remedy specifically. These are not fully thought through proposals or anything, just some queries I’m throwing out for discussion. I think we maybe need to ask ourselves some questions, though I don’t profess to have all the answers. It’s been a while since I’ve done financial remedy work, and I may be out of touch.

So, things like PD3AA on vulnerable witnesses ostensibly applies to all types of family proceedings where there is a vulnerable witness, though I’m not sure how often it is deployed in such cases, in particular how often it is utilised in cases where there is a background of domestic abuse (alleged or proved), perhaps beyond the occasional screen.

PD12J however, the detailed guidance on dealing with domestic abuse – sits under Part 12 of the rules and, as such, applies only to Children proceedings.

It’s easy to forget that domestic abuse can hold relevance for two primary reasons in proceedings :

  • because of its impact on participation and best evidence
  • because it may be relevant to the substantive decision e.g. in children cases it means there is a risk to be managed

The first basis is clearly relevant in any sort of family proceedings. Where there are children there will likely have been some consideration of the issues in the context of the children case, something will have been committed to writing, perhaps there will be findings. But in many cases that is not the case – either the children are adult or there are none. How then does the court address, or even become aware of those issues, particularly where many participants in proceedings will be in person? As far as I’m aware there is no equivalent process to the C1A where a participant is asked at the point of issue whether or not there is a background of domestic abuse – meaning that the ‘red flags’ about the need to deploy PD3AA may not go up for the judge. The only place someone might deposit such matters is in the ‘conduct’ box on Form E.

I wonder if our culture of trying to avoid the blame game in money work might be impacting on this : what do I mean? Well, in financial remedy proceedings the court is directed by statute not to consider ‘conduct’ unless it would be ‘inequitable’ to disregard it (s25 Matrimonial Causes Act 1973). That means that judges are very reluctant to hear about allegations of domestic abuse, because they are generally not going to affect the outcome. Even where conduct is initially raised, judges are often at pains to explain this bit of the law to litigants, explaining that bad behaviour within relationships is sadly commonplace and the decision is not likely to depend on such issues. And if these issues aren’t going to affect the outcome there is of course no incentive for them to be set out in writing (indeed there is a positive discouragement or prohibition on doing so) , in order to alert the judge to the potential participation implications – or the substantive relevance of the alleged behaviour.

On top of that is the long running – and entirely sensible – campaign to remove fault from the divorce stage of proceedings more generally (ultimately successful).

But what if domestic abuse is relevant not just to participation (though that is important in itself), but to the substantive matters?

  • What if there has been financial control? What if other forms of control are now being expressed through the proceedings instead?
  • What if the control is continuing through the proceedings, unnoticed by the court, through persistent non-disclosure or vexatious but apparently reasonable requests for further information or by ramping up legal costs that a perpetrator knows the victim can ill afford until she is left acting in person, ground down and demoralised?
  • What if the control and abuse has eroded the victim’s self confidence, negatively impacted her capacity to support herself independently through an impact on her career?
  • What if the impact on the child(ren) means that there is justification in the victim staying at home, reducing hours or taking a less challenging role, to enable them to support the childrens’ wellbeing, therapy, recovery rather than maximising earning potential?
  • What if the behaviour has had such an enduring impact on the victim, even if non-physical in its form, that it would be unfair to ignore it?
  • What if there is a particular pressing need for the shape of any order to be crafted so that it ensures financial separation from the perpetrator so that the abuse through financial control can end?

One might say that my asking these questions is in tension with the no fault ethos. I don’t think it is. Firstly, it is important to distinguish between bad behaviour (which most relationships do involve at one time or another, in different guises and to differing degrees) and abusive behaviour which has a relevant impact on participation or financial matters. But secondly, a re-focusing upon relevance through impact was a recurrent theme in the domestic abuse appeals last week, and it seems to me that there is probably room for more thought about how we square the presumptive bar on the consideration of ‘conduct’ generally with the need to obtain sufficient information about allegations of abusive behaviour to properly inform the court both in terms of case management and possibly outcome. I suppose what I’m asking is : how does a judge know whether its inequitable to disregard conduct in the form of domestic abuse if the process squashes any mention or exploration of it systemically? And how easy would it be for a victim of such abuse to be heard on such issues? (particularly given all the pressures such victims will often be under, both financial and otherwise, and often without legal representation).

I suspect that at present the procedural framework for financial remedy proceedings may render judges oblivious to much of what may be going on under the surface. Particularly if the Court of Appeal adopts some of the arguments made last week about the Article 6 duties of proactive enquiry and case management around potential abuse (including in circumstances where not all victims are even aware that what they have gone through is abuse), then as a matter of principle those duties ought probably to extend to other types of proceedings – even where there is no relevant child of the family to consider under s25.

It might be that my worries about domestic abuse not being properly picked up and handled in the financial remedy sphere are unfair and unfounded. But in the context of so much evidence emerging of how we don’t always get it right in the children sphere even where it’s obviously pretty central, and knowing that there are similar personnel and all the same pressures on resources, I think it’s a valid question to be asking, even if the answer that comes is ultimately reassuring.

It’s also not Just about a fair procedure. As in the children sphere we do need to ask ourselves some searching questions about attitude. Think about Moor J’s remarks in MAP v MFP about a wife who sought an add back in respect of funds spent by her husband on cocaine and prostitutes – well, he said ‘since this was part of H’s flawed character and a spouse must take their partner as they find them, this could not be said to be wanton either & would not be added back’.

Now you can argue about whether to see the Husband’s behaviour in that case as an affliction or as merely evidence of him being a bit of a sh*t, but imagine if that approach were applied to a case of domestic abuse. A cynic might say it amounts to little more than the court shrugging its shoulders and saying ‘well, you should choose your husband’s more carefully love’. I would say that whilst domestic abuse may be a character flaw, it is still abuse, and the court should where relevant factor in the impact of it on the proceedings and the fair financial resolution. Not by way of punishment for bad behaviour, but in recognition of impact.

In part this post was triggered by me readingĀ  some guidance offered by a lawyer and others in a newspaper advice column, which suggested that conduct was something that might be relevant in the case. I queried whether that would really be something that would be run – or perhaps that was likely to be helpful to run – but then began to wonder whether it was really right that we squash these noises about domestic abuse because of our culture of avoiding conduct and blame. From the replies I got I know I’m not the only lawyer who is being pulled in two directions by these issues, but I’d be really interested to know whether these are topics of active re-appraisal amongst financial remedy specialists?

I shall now retreat to my bunker and await a general drubbing for sticking my oar in to a field I know nowt about…