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The President of the Family Division has said in a speech given yesterday to a Resolution conference on domestic abuse that family judges focused too much on the future of relationships instead of investigating allegations of domestic abuse.
Speaking to the conference on the topic of domestic abuse Sir Nicholas said: "Judges, I suspect, came late to realise the true evil of its effects on victims and on children. The ethos of the Children Act 1989 was perceived by many, myself included, as non-blameworthy, un-recriminatory. Look forward, not back. The relationship is over: don't spend time raking over its embers: look to the future.
"I suspect that this attitude prevented a number of us from investigating allegations of domestic abuse, and also stopped us permitting victims to advance abuse as a reason - to take just one example - for denying contact."
Sir Nicholas said it was not until the Court of Appeal cases of Re L ( a child) (Contact: Domestic Violence); In re V, M and H reported in 2001 that the judiciary really took domestic abuse on board. Each of these cases involved domestic violence by the father, and in each the court had refused to make an order for contact. The fathers appealed, and in each case the appeal was dismissed.
However, the judge explained that since then the judiciary has progressed significantly with the redefinition of "harm" in section 31(9) of the Children Act 1989 which now includes ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another.
The judge recalled how he had been involved in setting up a Children Act Sub-Committee in 1996 that reviewed parental contact to children in cases in which there was domestic violence. The judge said that he recalled "the hostility we encountered from Ministers and, through them, from their officials at our wish to address this topic. We were told - in terms - that the government did not want us to address the subject and saw no point in us doing so."
Turning to the current issues, Sir Nicholas said that he thinks there is a deficiency in the interaction between criminal law and the civil aspects of domestic abuse and questioned whether there is a need for nine Acts of Parliament to legislate for this.
"Both the Family and Criminal jurisdictions are increasingly complex and it very rare for practitioners to be expert in both fields. As a result, there is little real understanding of the procedures by each of the other area, and in particular of, for example, the practicalities of sharing information across the two jurisdictions," the judge said.
However Sir Nicholas said that the most pressing issue currently in domestic abuse law is "honour" based violence. In his conclusion he stated: "Any culture which routinely abuses women or treats them as second class citizens is unacceptable in English law."
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