Children are being re-traumatised as abusers weaponise the courts system
Groundbreaking research published last week into the Irish family law system undertaken by Trinity College Dublin and University College Cork, and commissioned by Women's Aid, makes for stark and sobering reading.
The findings of this 360-degree examination of the experiences of adult and child victim-survivors of domestic violence and abuse in guardianship, custody and access proceedings show court processes are re-traumatising those who have already suffered.
However daunting as the findings are, this research offers us a clear strategic opportunity to do better. The voices of victim-survivors of domestic violence and abuse — women, men, and children — are strongly telling us what needs to change.
This research comes at a key time for family justice in Ireland, with progress on many of the key deliverables of the national Family Justice Strategy already under way. We can transform a system that is not currently domestic violence and abuse informed or responsive, into one that understands how domestic abuse is impacting many court users, is trauma-informed, victim-survivor-centred, and truly hears the voices and wishes of children.
Sarah Benson: 'The children and young people who contributed to this research had engaged with a variety of professionals, including court assessors, social workers, judges and members of An Garda Síochána, but said they felt their experiences were discounted and disbelieved, and their wishes ignored.'
This research is unique in Ireland, but its findings strongly echo what is already known from similar international research. It draws from court observations, hundreds of survey responses, wide ranging interviews and focus groups with children, aged-out minors, adults, domestic violence practitioners, health, social care and legal professionals and judges, and the final report provides an in-depth perspective of the barriers facing victim-survivors of abuse in our family law system.
It captures hundreds of reports of physical, emotional, economic and sexual abuse of women, men and children. It tells us that sadly it is not enough for some key individuals among legal, judicial and courts personnel to be domestic abuse (including coercive control) informed, which victim-survivors reported as being "transformational" for them in terms of feeling believed, supported and empowered to manage their safety and that of their children.
Pockets of individual good practice are revealed as completely inadequate when the system itself is not attuned and responsive to the tactics and impacts of domestic abuse post-separation.
Participants in the research spoke of having to adhere to court-ordered access to avoid being charged with violating a court order, requiring them to regularly engage with their abuser.
This frequently provided court-sanctioned opportunities for further abuse to occur. Children in Ireland have the constitutional right to have their views heard and considered, particularly in legal proceedings involving their safety, welfare, or wellbeing.
However, this research tells us very clearly this is not happening in the Irish family law system. There remains an issue whereby living in a home where there is domestic abuse is still not sufficiently recognised as abuse of children themselves, despite this being a clear position of the WHO and Tusla policy.
In court proceedings that impact children's lives, the risks of post-separation abuse, including coercive control, are therefore not considered adequately.
The children and young people who contributed to this research had engaged with a variety of professionals, including court assessors, social workers, judges and members of An Garda Síochána, but said they felt their experiences were discounted and disbelieved, and their wishes ignored.
Examples given include children disclosing experiences of assault by their abusive parent, and that information being ignored or disputed in court.
While the children told the researchers they could not have been clearer that they did not want to spend any time with an abusive parent and gave a good rationale and evidence for that assertion, they described not feeling heard or taken seriously by professionals when contact was continued or extended.
Always having contact with both parents as in a child's best interest should not be the starting point in considering matters of custody and access where there are allegations of abuse. It may be, but it also may not, so a neutral starting point as to this question is appropriate.
There is also a clear pattern reported, particularly where there are court reports being produced to give "voice" to the child, that in the absence of meaningful consideration of domestic violence and abuse, the highly contested concept of "parental alienation" is being presented as the only possible reason mothers and children are resistant to contact and access.
At the launch of research into the Irish family law system were: Ruth Elliffe, TCD; Stephanie Holt, TCD; Davina James-Hanman, Violence Against Women consultant; Sarah Benson, Women's Aid chief executive; Soma Gregory, TCD; Aisling Parkes, UCC; and Ailbhe Smyth, chair of Women's Aid. Picture: Paul Sharp/Sharpix
In telling us how the system failed them, the victims-survivors that took part in this research have also shown us exactly what change should and can look like.
The family law system is neither simple nor straightforward. It is a complex and evolving network, composed of laws, courts, judges, legal professionals, services, and, crucially, the lived experiences of families.
These components do not function in isolation but interact in ways that are often unpredictable and dynamic. The outcomes for individuals seeking support are shaped by the whole system, rather than by any single decision, law, or individual actor.
To truly improve the family law system, we must move beyond focusing on its individual parts and instead examine how all these elements are interconnected and influence each other.
Women's Aid urges the Government to fundamentally reform the family law system as part of the new Family Justice Strategy in a consciously domestic violence- and abuse-informed manner.
We need compulsory domestic abuse training for all professionals, including judges. We need comprehensive screening and risk assessment protocols and practices across all proceedings, radical reform of the 'expert reports' system, and improved access to legal representation.
We need the development of clear mechanisms to improve coordination, communication, and cooperation across all civil family law proceedings and with the criminal courts. And we also need the supporting systems and specialist stakeholders that families access to be resourced and facilitated to minimise trauma and risk.
This underpinning domestic violence- and abuse-informed approach needs to be an explicit and shared project by all stakeholders to improve the system for the most vulnerable.
Everyone involved must understand how perpetrators can weaponise the court system and be an ally and advocate on this. We need to reduce, and eradicate, tolerance for abuse of the system itself, which goes on to retraumatise those we should be protecting.
With the voices of adult and child victim-survivors now clearly amplified in this research, we have the evidence, the insight, and the moral imperative to build a system that protects, listens, and heals. Now we need to accelerate action to ensure these voices are heard and rights vindicated.
Sarah Benson is chief executive of Women's Aid
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