Are Domestic Abuse victims still being failed by the Family Justice System?: Domestic Abuse Commissioner Release

Last week, the Domestic Abuse Commissioner released a new report entitled “Everyday Business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism” with research from Professor Mandy Burton and Professor Rosemary Hunter KC (Hon) of Loughborough University, in partnership with researchers from senior researchers in the Office of the Domestic Abuse Commissioner. As outlined by the headline of the press release, the report finds that “Majority of Family Court cases involve domestic abuse but system still not responding”[1]. 

Since the Harm Panel report (2020), it would undoubtedly have been hoped from users and professionals alike that the issues highlighted and addressed in the report would have progressed and developments been implemented five years on. As the present research demonstrates, there is still much to be desired, leading to failures for domestic abuse victims using the Family Justice system.

Concerningly, in over half of the cases that the report reviewed, unsupervised overnight contact was ordered, despite over 87% of cases having evidence of abuse within them. It may be that the prevalence of abuse within matters makes the system and those within it somewhat normalised, thus shifting the scale by which courts decide which matters influence contact. 

The figures may not reflect the full extent of the issues; a failing system is not going to encourage those who come to the courts to raise allegations. Addressing allegations within proceedings is difficult, whether this be raising historical abuse in statements, to Cafcass, or even being cross-examined on this in a fact-finding. If, despite these being raised as concerns, or even being found following a trial, contact is still ordered, victims are going to feel failed. In this article, the key aspects of the new report are summarised.

Harm Panel Report (2020)

In 2020, the Ministry of Justice (MoJ) published a report, Assessing Risk of Harm to Children and Parents in Private Law Children Cases, which has come to be known as the ‘Harm Panel’ report, which examined how effectively the family courts identify and respond to allegations of domestic abuse in private law child arrangements cases under section 8 of the Children Act 1989. 

The research reviewed for the panel showed that the family courts have long struggled to recognise domestic abuse (in all its forms, including post-separation abuse) and to respond appropriately to allegations of domestic abuse when deciding contact arrangements. The panel concluded that there are four structural barriers that operate together to impede responsive processes and safe outcomes in child arrangements proceedings in the family courts:

1. a pro-contact culture
2. adversarialism, 
3. resource constraints 
4. silo working

Changes Since the Harm Report 

Domestic Abuse can be perpetrated in many forms. Physical abuse is widely known and understood, but statutory recognition of other forms of abuse finally came in the Domestic Abuse Act 2021. Section 1 of the Act outlines the definition of domestic abuse as abusive behaviour which is physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse (see subsection (4)) psychological, emotional or other abuse, either as a single incident or a course of conduct.’[2] In addition, the Domestic Abuse Act 2021 now recognises children as direct victims of domestic abuse if they ‘see, hear or experience the effects’ of abuse.

As a result of the Harm Panel’s recommendations, practical work began on piloting a different approach to the standard Child Arrangements Programme (CAP), and the courts involved in this work have become known as ‘Pathfinder’ courts. 

The Family Procedure Rules were also amended to provide that victims of domestic abuse are automatically considered to be ‘vulnerable witnesses’, requiring the court to consider what special measures may need to be provided such as separate waiting areas and screens within the court to prevent parties from seeing each other. Examination of victims by abusers and the need for a victim to cross examine their abuser was also removed through introduction of a Qualified Legal Representative (QLR) scheme, preventing additional abuse within the courtroom, as well as any additional trauma.

Other developments include fresh guidance in case law, notably Re H-N and Others and K v K where the Court of Appeal reiterated that fact-finding hearings (FFHs) on contested allegations of domestic abuse should only be held when ‘necessary and proportionate’ and later guidance confirms only if they are relevant and necessary to the court’s decision regarding the welfare of the child. However, the court noted the importance of a modern understanding of domestic abuse that acknowledges the risk of harm that coercive and controlling behaviour poses. An emphasis was placed on the need to look for patterns of behaviour rather than focusing on discrete incidents of physical abuse and discouraged the use of Scott Schedules. 

The DAC Report – Key Findings

The Commissioner’s report was based on a review of 100 files in child arrangements cases from each of the three ‘Pathfinder’, observations of hearings, focus groups with domestic abuse survivors in the area of each court and interviews with judges, magistrates and Cafcass/Cafcass Cymru officers working in each court.

The report highlighted the fact that family court and Cafcass administrative systems do not collect or report systematic quantitative data on cases involving domestic abuse which is an ongoing barrier to the understanding of and effective responses to domestic abuse. Knowledge is derived from previous case file studies (studies 1999-2017 summarised in the Harm Panel report). These found evidence of domestic abuse in around 50% of cases, 60% of cases in two studies in 2007 and 2017, while an HM Inspectorate of Court Administration (HMICA) review of Cafcass files in 2005 found domestic abuse in over 70%.

There is no decrease in the present report; evidence of domestic abuse was found in 73% of observed cases and 87% of case files. Many cases in which domestic abuse was raised (57%) included mention of two or three types of domestic abuse. As the report states: “these findings strongly reinforce the view that domestic abuse is not exceptional or even as likely as not to be present in private law children cases. Rather, it is the ‘everyday business’ of the family courts, present in most cases at all levels”. Despite the prevalence of domestic abuse in cases, it was only considered to be a “live issue” in 42% of hearings. The sidelining or reason for domestic abuse being somehow classified as irrelevant in child arrangements cases are explored in the remainder of the report.

The report further considered allocation of the cases that have domestic abuse and the differences within judicial tiers; the only significant differences were in relation to physical and sexual abuse which were more likely to be allocated to a judge rather than to magistrates. This indicates that physical and sexual abuse continue to be assessed as more ‘serious’ compared with other types of abuse, and the seriousness of coercive and controlling behaviour continues to be downplayed. The ability to report coercive and controlling behaviour being absent in the C1A form, they considered, may lead to a reliance on safeguarding enquiries conducted by Cafcass or Cafcass Cymru, making early allocation harder.

PART A – BASELINE FINDINGS

The four issues outlined in the Harm Report (a pro-contact culture, adversarialism, resource constraints and silo working) are re-examined in the new research:

1. The pro-contact culture

The report considered whether there was a correlation between parental alienation allegations and domestic abuse reporting. However, only 9% of files contained evidence of allegations of parental alienation against the mother, and 3% against the father, thereby demonstrating it as less rife among separated parents than perhaps anticipated. However, all of the cases in which parental alienation was alleged also involved allegations of domestic abuse, so there remains an association and use of parental alienation as a counter-allegation to domestic abuse, perhaps as a part of an ongoing pattern of coercive control.

Professionals indicated to survivors that contact would go ahead irrespective of any abuse and so survivors felt discouraged from raising allegations of domestic abuse. An emphasis remained placed on police involvement and convictions. The pro-contact culture is therefore still in effect, minimising abuse in all but the most ‘severe’ cases where children have been physically injured or witnessed physical abuse of their parent. Even where survivors recounted positive experiences with Cafcass taking their experiences and concerns seriously and recommending that contact be restricted, survivors found, that the court often did not follow these recommendations.

2. Adversarialism

The adversarial process still dominates the litigation of child arrangements cases, particularly where domestic abuse is alleged suggesting that this often leaves survivors feeling disempowered. Any contested hearing with evidence should be avoided as they can serve to entrench conflict. A fact-finding hearing (FFH) would not be required in every case in which domestic abuse is relevant, especially if there are admissions. Despite domestic abuse being raised in 87% of cases, however, only 4% of cases had a FFH, all of which included allegations of physical or sexual abuse, indicating that such allegations are both considered more ‘serious’, and are more easily itemised in a schedule and determined in a contested hearing (despite Re H-N accepting that Scott Schedules are not an adequate mechanism for understanding patterns of abuse in a relationship, and in particular for capturing the existence of coercive and controlling behaviour). 

3. Resource limitations

As one judge succinctly put it: “Resources are always a key problem” with limited judicial resources impacting on judicial continuity which is particularly important in domestic abuse cases in obviating the need for a survivor of abuse to tell their story several times over, and in enabling familiarity. PD12J recognises the desirability of judicial continuity in cases involving domestic abuse allegations and survivors indicated to the report that they would have liked this also.

It was widely acknowledged by the judiciary in this study that there was an undersupply of QLRs available to take cases. Judges frequently commented on the difficulties of getting a QLR and pointed to the fact that the fee structure was not particularly attractive. Another resource issue that was commonly raised by professionals was the lack of contact centres, and the lack of appropriate Domestic Abuse Perpetrator Programmes (DAPPs). 

4. Silo Working

Survivors and professionals both talked about the consequences of multiple proceedings that are often overlapping but disconnected. Being part of multiple proceedings creates additional burdens for the survivor, for example, the prospect of giving evidence twice was doubly traumatic, “especially when they felt that they were not being protected adequately or taken seriously in either court”.

Further, there is a frustration expressed by survivors about lack of police action being taken as an indicator in the family courts that domestic abuse either had not happened or was not relevant to child arrangements. The pro-contact culture overrides waiting to obtain evidence from the criminal justice process to inform the welfare assessment about whether contact will be safe.

The continuing consequences of structural barriers

1. Minimising of Abuse

Survivors said that they felt that non-physical abuse was viewed as unimportant as well as being difficult to prove and just “weaponising the kids” and making mutual or “tit for tat” allegations. If there is no physical abuse or injury, abuse was often framed as ‘minor’, without looking at patterns. Domestic abuse was frequently reframed as ‘parental conflict’ due to the alleged perpetrator making counter allegations, even if psychological abuse was found in a FFH.

Other safeguarding issues were seen as more important than abuse, such as parental substance misuse, mental health and criminal records. Mental health of a mother was considered as a link to the trauma of abuse. As the report states, “All of these ways of minimising and diminishing the significance of domestic abuse flow from the pro-contact culture and may result in the quick progression of contact despite domestic abuse” [page 52].

2. Retraumatisation  

Court is an unfamiliar and scary environment for many users, but the nature of family proceedings can make survivors feel alone and ‘all consumed’ by the process. This can be traumatising and have a detrimental effect on mental health. 

Despite the progress of ‘the routinisation of special measures’, the report highlighted the issues with special measures on a practical level. In domestic abuse cases, special measures were in place in just 53%. None of the courts had separate entrances, with issues in queuing and security. Screens were not always in a way that a party could be with their counsel, leading to a victim having to choose whether to use special measures or not. Even with special measures, survivors can still be understandably distressed knowing they are in the presence of an abuser and having to answer cross-examination questions.

Section 91(14) of the Children Act 1998 allows the court to make orders barring a party from making further applications under the Act for a specified period of time without leave of the court. These orders had traditionally been regarded by the courts as draconian and to be made only in exceptionally rare cases. The Harm Panel recommended that section 91(14) orders should be more readily available to constrain the ability of perpetrators to bring repeated family court applications as a form of ongoing harassment, control and coercion of their former partners. Subsequently, the Domestic Abuse Act 2021 made amendments to the criteria for a section 91(14) order. However, section 91(14) was raised in only four cases.

In summary, “there is only so much that special measures and QLR appointments can do to mitigate trauma, but the qualitative data shows that the implementation of special measures can still be improved in some cases”.

3. Silencing Children’s Voices

Survivors said that they did not think Cafcass were able to get to the ‘true’ wishes and feelings of their children. Some raised concerns that the time spent with children was short, that dismissing their wishes led the children to ‘shut down’, concerns that what they say will be repeated due to the other parent and some children’s additional needs. It was “generally agreed that too little weight was given to the views of teachers and other people who work daily with children and could give them a voice” [page 61].

Although Guardians may assist under rule 16.4, only 3% of cases had one appointed (mainly in Wales). This may be due to resources, or concerns about delays. Due to the pro-contact culture, a child expressing not wanting contact was ignored or minimised 

4. Unsafe, unsustainable and harmful orders 

The Harm Panel report documented the family courts’ overwhelming emphasis on ‘making contact happen’, resulting in too many cases with unsafe and unworkable orders which, in turn, caused ongoing harm and returns to court. The data in the file sample suggests that little has subsequently changed in this regard. In the context of 87% of cases involving some issue of domestic abuse, it is of great concern that 33% of cases ended with joint ‘live with’ orders, and 44% ended with orders for unsupervised overnight contact, with a further 16% of orders prescribing progression of contact.

Forty-seven per cent of final orders were made by consent but this does not necessarily indicate that they were safe as parents are often encouraged or pressured to settle. Unsupervised overnight contact and progression of contact to unsupervised overnight were just as likely to be ordered in domestic abuse cases as in cases not raising issues of domestic abuse - only a criminal conviction for domestic abuse would make a difference to the court’s approach.

Section 7 reports were analysed by the report, though it was unclear what way they influenced a final order – where there were judgment reasons, domestic abuse was only mentioned in three cases, whereas the s7 report was most frequently cited. A section 7 report was more likely to be present in cases involving domestic abuse, but domestic abuse was not mentioned in 13% of the section 7 reports in these cases. Where domestic abuse was mentioned, it was more likely to be as an allegation (56%) (which inevitably diminished their impact and their likelihood of influencing the report’s recommendations) than as either an admitted (2%) or established (26%) fact. This is borne out by the fact that domestic abuse was central to the recommendations in only 11% of section 7 reports. While it was considered relevant in 27% of reports, in the majority of section 7 reports it was treated as marginal or irrelevant (62%). It is therefore not surprising that most section 7 reports where domestic abuse was raised (59%) also recommended unsupervised contact. 35% recommended supervised or supported contact, while only 11% recommended no contact.

Practicality of orders also posed issues, resulting in potential danger, such as a third party for handovers being unavailable but being told to “try and get along for the sake of the kids”.

Good Practices

During the Pathfinder Pilot, there was an aim to identify good practices and disseminate these widely. There was a positive shift as called for by the Harm Panel from the pro-contact culture to a culture of safety and protection from harm. There are key examples outlined of when domestic abuse was taken seriously, not minimised and where staff did work to put special measures in place. The final category of good practices observed was where judges and magistrates followed PD12J and refused to accept consent orders presented to them that did not address the risks of continued domestic abuse.

                

 
PART B – NEXT STEPS

The report highlighted clear need for change; given the findings in Part A, the DAC stated that there remains convinced of the need for further rollout of the FCRRM; addressed in Part B through a series of recommendations, summarised and condensed below.

Recommendation 1 - The Ministry of Justice should commit resource and funding to a second phase of the Family Courts Review and Reporting Mechanism

The findings of the pilot show that courts operating under the CAP need to improve the experience of the CAP and implement good practices whilst the gradual rollout of Pathfinder courts continues.

Phase two aims to continue to ask research questions by producing more data. The report proposes ‘deep dives’ into areas of particular concern (such as identifying domestic abuse) in safeguarding reports and otherwise, the process prior to, during and after fact-finding hearings, Section 7 reports, the role of lawyers in supporting clients who are alleged victims or perpetrators of domestic abuse, and intersections of domestic abuse with issues relating to ethnicity, immigration status, disability and/or health status. It is proposed that the MoJ, the Family Court, HMCTS, and Cafcass will be involved to ensure that the research is feasible, policy sensitive and there is dialogue around and commitment to implementing recommendations.

Recommendation 2 - Pathfinder court sites as well as CAP courts should be included as part of the intensive court study in phase two of the FCRRM.

As it is anticipated that by March 2026, 25% of private law children’s cases will be dealt with in Pathfinder courts, it is crucial they are included in phase two. There is currently limited data from one completed evaluation, and one evaluation is ongoing.

Benefits of involving Pathfinder courts include the dropping of the third stage of the Pathfinder model from Practice Direction 36Z (designed to head off the high rate of returns to court and place responsibility on the courts to contact parties and children to determine how well the orders were working) without any alternative to replace it. This leaves serious problems identified by the Harm Panel, such as children and non-abusive parents left to live with unworkable, unsafe and harmful orders, unaddressed.

                The DAC also raises concerns about potential issues emerging from the Pathfinder rollout such as limited time for and reduced emphasis on consultation with children for the Child Impact Report, lack of resourcing of and referrals to domestic abuse services, and lack of training for lawyers about the Pathfinder process and the different role they play in supporting clients in an investigative, problem-solving (as opposed to adversarial) process. 

The Pathfinder and CAP processes, it is recommended, should be systematically compared, asking the same questions and using the same methods of data gathering and analysis, and considering how good practices might be carried over.

Recommendation 3 - As well as reviewing child arrangements cases, phase two of the FCRRM should incorporate the review of financial remedy cases, applying the same research questions to these cases.

The Harm Panel, and other reports, identified respondents citing domestic abuse, and specifically economic abuse, set against the substantial barriers to applicants wishing to argue conduct; reserved for the most ‘serious’ cases in the court’s estimation. Consequently, financial orders might be a source of ongoing harm to children and their non-abusive parents, and financial remedy cases should be considered in phase two. 

Recommendation 4 - Data on (i) the presence of domestic abuse concerns and (ii) the type(s) of domestic abuse raised, should be routinely collected by the new CCD system from online forms, safeguarding letters and section 7 reports.

HMCTS is planning to introduce a new Core Case Data system (CCD) to replace FamilyMan, their current case management system. CCD will incorporate a much wider range of information about family court cases gathered directly from electronic forms and case management records, substantially increasing the data available on family court proceedings. However, the system is delayed and it is not yet clear whether CCD will fill all the current data gaps or what the quality of the data it produces will be. Recording practices could be optimised by a ‘domestic abuse flag’, as opposed to a ‘harm flag’ which could relate to a number of safeguarding concerns. 

Recommendation 5 - Future data collection focusing on domestic abuse in the family justice system should record allegations that are not endorsed by professional judgement as well as those that are. 

The findings may show that there is significant under-reporting, as well as potentially misleading reporting where cross-allegations of abuse are validated rather than a primary perpetrator being identified. Data should disaggregate between allegations made by different parties, against whom, and allegations judged to be relevant by Cafcass and the court.

Recommendation 6 – Changes to the Form C1A

1. Abuse in Section 2 should be extended to include ‘coercive and controlling behaviour’, ‘stalking’, ‘harassment’ and ‘honour-based abuse’.
2. The categories should be listed in alphabetical order which will place coercive and controlling behaviour at the beginning of the list.
3. The list of orders in Section 2 should be extended to include FGM protection order.
4. The table on p.3 of the form should not be a grid but rather should only have columns with space for narrative answers.
5. The response section on p.9 should be a single text box allowing for a narrative response.
6. References in the Notes to Section 2 to ‘incidents’ and ‘individual incidents’ should be removed, and instead encourage the person completing the form to describe holistically the nature and extent of the abusive behaviour they allege, and how they believe it has impacted on the children

Problematic and data limiting features of forms C100 and C1A currently include an inability to capture coercive and controlling behaviour, stalking, harassment, honour based abuse, and FGM, leaving them underrepresented or missed. De-alphabetisation would reduce the suggestion of an implicit hierarchy of seriousness, and narrative responses would allow parties to address the holistic picture.

Recommendation 7 - The ethnicity of parties and children in proceedings should be routinely recorded as part of the C100 form, and also routinely recorded by professionals in reports, using established ONS ethnicity categories for consistency and comparison.

Ethnicity, disability and health data relating to the parties and children were not routinely recorded in files and were sometimes difficult to extract from the available documents. Ethnicity data was typically only recorded in reports for non-white-British families, suggesting that ‘white British’ was assumed as the ‘default’ ethnicity and was, therefore, not deemed necessary to record.

Recommendation 8 - A general question about disability within the meaning of the Equality Act 2010 together with a dropdown list of types of disability and health conditions should be included in the C100 form for both parties and children, to increase understanding of prevalence in the court population and assist the court and Cafcass/Cafcass Cymru in the handling of individual cases.

Despite disability currently being recorded on the C100 form in relation to the need for special measures, the case file study suggested that data pertaining to disability and health issues of parties and children is not recorded as a matter of course in the key forms. Researchers were more likely to identify these factors from reading statements and reports than in applications, and therefore systematic recording could be improved.

Recommendation 9:

1. Tick-boxes for requests for special measures on the C100 and C1A forms be harmonised.
2. Correspondence, administrative records and case management directions and orders relating to requests for special measures and for the appointment of a QLR always be added to individual case files.
3. Hearing record templates be built into the CCD to include tick-boxes for whether different types of special measures were provided, there was any remote attendance, IDVA, intermediary, interpreter, or QLR was present or either of the parties were legally aided.

Applications for and the provision of special measures and QLR appointments were not routinely recorded on case files, and as these gaps will not be addressed by the new CCD system it is imperative that data relating to special measures and QLR appointments is routinely recorded for the court to be able to assess its own handling of cases involving allegations of domestic abuse.

 

Recommendation 10 - 

1. A schedule of findings should always be recorded following a fact-finding hearing, as required by PD12J.
2. Where an ex tempore judgment is given following a fact-finding or final hearing, the notes used for the judgment should always be added to the file.

Understanding the findings and orders made by the court in domestic abuse cases was hampered by the fact that in a substantial minority of FFHs and the majority of final hearings there was no written judgment on the file. Schedules of findings were also often missing. More comprehensive recording of decisions and reasons would assist in analysing the court’s response to domestic abuse allegations and the outcomes of cases.

Recommendation 11:

The Ministry of Justice should create an analytics team focused on overseeing and analysing family court data and making that data publicly available to inform family justice policy and strategies, publish reports and be the single point of contact for family court data for independent research.

Family justice data systems are currently designed to fulfil administrative functions rather than to facilitate monitoring or transparency of family court processes and outcomes, data sources are patchy and incomplete, and no agency or organisation exercises complete oversight or ownership of data and access to data varies between different data sources and stakeholder groups.

Consequently, the courts, the Family Justice Board and policymakers are unable to use data at any granular level to identify performance issues or to monitor performance in relation to strategic priorities, such as domestic abuse and harm, and there is a chilling effect on research, such as that conducted for the FCRRM pilot study, because it is laborious, time-consuming, resource-intensive and uncertain. It is recommended that the Ministry of Justice should assume responsibility for overseeing the scope and quality of, and the provision of access to, family court data.

Adjustments to Data Gathering Strategies and Improving Research Processes for Phase Two

The report also sets out several proposed amendments to data gathering strategies and ways to improve research for phase two (Recommendations 12-16). This includes more efficient ways of observing court hearings and analysing case files, and the creation of local and national databases to reduce the risk of not recruiting participants from certain groups for focus groups. Additionally, the DAC office should work with the Home Office or Ministry of Justice to identify an appropriate ethics process, to enable children’s participation to ensure that the voices of children are included in phase two. Future court site selection should aim for a good cross-section of courts in order to gain as representative a picture as possible of the way cases raising issues of domestic abuse are dealt with across the family court.

To further its initiative, the DAC asks that the family court be transparent and facilitative in the process of obtaining permission to access and collect data, with inbuilt timescales to prevent delays, unnecessary steps, uncertainty and inconsistency. The DAC asks that the process of obtaining judicial permission for different project strands is simplified, and a general privileged access agreement should be put in place to ensure that the DAC can access family court data for the purposes of phase two.

 

CONCLUSION

The new report highlights concerning factors that remain in the Family Justice system, despite being five years on from the Harm Report. The experiences outlined by those interviewed are likely to be familiar to many professionals within the system, seeing the issues on a daily basis and across a variety of cases. It is difficult to recognise the issues without being able to implement long-term change. However, the DAC proposes key recommendations which, optimistically, will build upon factors already being implemented that are working, or which have highlighted a key issue for reform. These practical steps, if applied, will hopefully move the system in a positive direction and improve the system for victims of abuse and children in the Family Justice system.

 
[1] Majority of Family Court cases involve domestic abuse but system still not responding [2025] Domestic Abuse Commissioner, Majority of Family Court cases involve domestic abuse but system still not responding | Domestic Abuse Commissioner [Accessed 15-19 October 2025]
[2] Domestic Abuse Act 2021, Section 1(3)

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21st Oct 2025