The private law pathfinder transforming domestic abuse victims’ experiences of a previously ‘brutal’ system

These pilots, funded by the Ministry of Justice and designed in consultation with a wide range of family justice experts, also come in response to the Harm Report, the recommendations of which were accepted by the government and became part of their manifesto promise. In Wales, this pathfinder has become part of the Welsh Government’s work programme in response to the action to be taken following the Harm Report.

The changes in this new model include more in-depth initial information being gathered by Cafcass and Cafcass Cymru, and this includes speaking to children before the first hearing in most cases. There is also a focus on better integration of agencies beyond the courts, such as those specialising in domestic abuse or mediation, to give the best response to families. It is here in particular that HHJ Chris Simmonds and HHJ Gaynor Lloyd have seen the most positive impacts. Speaking to Nuffield Family Justice Observatory’s Associate Director for Strategy and Delivery, Jude Eyre, during one of the organisation’s In Conversation With lunchtime talk sessions, HHJ Chris Simmonds explained how the pathfinder works:

‘Our approach is very different and is very much an investigative approach with Cafcass being at the absolute core. We have an early gatekeeping, where we look at the information and the court speaks to the parties at the beginning, within days, to explain what’s going to happen. We front load the engagement.’

‘The difference is, if you’re coming to court and we’ve got the right information early on to make the right decisions, we will also try our best to stop you needing to come to court. If it’s been investigated properly – and there are no safety concerns – either the parties have reached an agreement and it can be dealt with without coming to court or, if you are still coming to court, that one hearing is the final hearing.’

The voice of the child has been an important part of the pathfinder. ‘It’s frontloading the voice of the child and making it central to proceedings. We’ve tried very hard to change the language of the court and make it very non-adversarial’ explained Judge Lloyd. ‘We look at the impact of adult behaviours, and whatever the vulnerabilities of the families are, and look at the impact on children. This has proved a really powerful way of getting parents to stop focusing toward each other and looking instead at the children.’

At the same time, better integrating the court with the support services around it has been key. This has included working closely with domestic abuse charities and understanding their work on the ground, along with ensuring that those coming to court have proper support from these workers. ‘One thing you have to do in pathfinder is get out of your silo’, says Judge Simmonds. ‘I speak to domestic abuse charities in our area regularly, I know the workers, I know what they’re doing. We also have a standing rule that they’re allowed in, unless there’s a very good reason for them not to be. I have never had an objection to it. Domestic abuse workers now feel able to come to court and they really do support the most vulnerable.’

Resource has been the biggest challenge in implementing this pilot. ‘When this was being launched we were down by 50% of our judges, we had limited legal advisers, which remains the same, and we had problems in our court staff, we had vacancies that hadn’t been filled.’ But these challenges haven’t stood in the way. ‘Even with these problems, we were able to make pathfinder work. We had a huge backlog of legacy cases. But towards the end of last year we were making huge inroads. We have no 2018/2019 cases left, and I have a spreadsheet with the ones from 2020 onwards, as judges we’re working through them and giving them priority. We now have court time to do that, we didn’t have it before this pathfinder.’

By implementing a multi-agency approach and refusing to let these limitations become a blocker to changing their ways of working, Judge Lloyd and Judge Simmonds are seeing incredibly positive outcomes. Domestic abuse survivors are feeding back on the model describing it as ‘much less brutal and much more kind than their perception of adversarial family court proceedings’, explains Judge Lloyd. ‘They feel supported and that support deliberately goes on far beyond the scope of proceedings.’ Children in North Wales have fed back positively about having their voices heard, one 11 year old girl said, ‘I had a lot in my head before and so I was happy to get to say what I wanted and relieved.’

Judge Simmonds adds that the challenge of limited resources shouldn’t be taken as an excuse not to trial new and innovative ways of working. ‘Limited judicial resource, limited court staff, are not a bar to making pathfinder work. Cafcass are the lynchpin, as are local authority resource, they’ve been able to provide domestic abuse staff, who have been great and we’re so thankful for that. It’s about multi-agency working to recognise and respond at the earliest possible opportunity. Taking early steps to identify domestic abuse and managing risk.’