A retired High Court judge is supporting a call for family lawyers and judges to have a greater awareness of the impact of trauma on people to avoid unjust outcomes for victims of abuse.
Evidence of domestic and economic abuse and other controlling behaviour is said to be present in an increasing number of cases dealt with by the family courts, but lawyers suggest there is a lack of understanding of the effect of trauma suffered by victims.
They argue that the adversarial court process can exacerbate existing trauma, negatively affecting the evidence given by vulnerable clients. And that can lead to their evidence being misinterpreted and their accounts unfairly dismissed as weak or unreliable, resulting in unjust decisions.
Research from Catherine O’Neill at Canterbury Christ Church University last year showed that almost all of 46 lawyer respondents in her study said they worked with traumatised people — but only 9 per cent had attended training sessions on dealing with trauma.
In a pioneering collaboration, Burgess Mee, a law firm that specialises in family law, and the Rosefield Divorce Consultancy have worked with the Innisfree Therapy clinic to train their solicitors and consultants to recognise the signs of trauma in clients and understand the effect that might have on them during the legal process.
A key aim of the initiative is to improve the understanding of how trauma affects the way that individuals present themselves in court, and those involved call for all family law professionals to receive training. “Working in the family courts without an understanding of the impact of trauma risks evidence being misunderstood and vastly increases the potential for unjust decisions,” says Peter Burgess, a partner at Burgess Mee.
He adds: “Someone who is unable to deal with the legal process and disengages due to trauma could, for instance, be labelled by a judge as difficult or dishonest, with far-reaching consequences.”
The impact of trauma on individuals going through family law issues can be “truly debilitating”, says Laura Rosefield, founder of the Rosefield Divorce Consultancy, as she highlights the need for a more “neuroscientific understanding” of its impact on the way individuals present themselves in court.
Rosefield explains that a spouse leaving an abusive relationship may appear confused or disorientated or may “freeze” when giving evidence, which can make that person seem evasive or inconsistent.
Equally, she says, victims who are conditioned to appease perpetrators to avoid threat or danger can agree with everything that is put to them in cross-examination, which can be misunderstood as conceding their case and agreeing with the other side. “It is critical that family law professionals can recognise the signs of trauma in their clients so that they can provide the most appropriate advice and support,” Rosefield says.
Backing the initiative, Sir Nicholas Francis, who retired as a judge in the family division of the High Court in May, tells The Times: “Most people of my generation are ill-informed about the effects of trauma.”
Referring to his time as a practising barrister, Francis says: “One of my concerns in money cases was that my client would settle on inappropriate terms because of the fear of being confronted by their abuser in court.” While as a judge, Francis says: “I became very aware of the risks of judging a witness by their demeanour.”
He recalls sitting in a Court of Appeal case last year at the end of which the tribunal remitted the case for a re-hearing because the lower court judge’s reasons for rejecting the central issues of the appellant’s case were solely based on an assessment of their demeanour.
“The more I have learnt about the effects of trauma, the more I realise that judging a witness because of blushing, sweating, hesitancy, forcefulness etc can risk reaching the wrong conclusion,” Francis says, adding that they could be “reacting to, or even reliving their trauma”.
Catherine Baksi
Thursday October 17 2024, 12.01am, The Times