Family Court Proceedings Research Articles

Limitations of Applicability of Civil Procedure Code to Family Court Proceedings

To summarize the versatility of civil law and what all it entails in a single tight compartment is akin to doing injustice to the vast field of civil law. To streamline the procedure of the same, the Civil Procedure Code came into the being. The code was introduced with the basic aim to rationalize and consolidate the process to be following while adjudicating matters related to civil law. With the introduction of Hindu Marriage Act, 1955, Muslim Marriage Act, Special Marriage Act, 1955 and so on coupled with the rise in matrimonial related disputes and resultant sharp rise in the number of cases being filed, the Family Courts Act, 1984 was incepted. Eventually all states too made their own rules to bring together the whole process in a linear manner. In this paper the author aims to analyse as to what extent CPC determines the functioning of cases filed under the ambit of family Law and if at all the family courts by virtue of Family Courts Act, 1984 have been given certain independence in this aspect. If yes, then where does that stem from primarily and in case of conflict between the two which one would prevail.

A public health approach to family justice: the possibilities of legal epidemiology and administrative data

ABSTRACT Those in family court proceedings are at the sharp end of a spectrum of disputes concerning their children’s upbringing. Emerging evidence shows that, regarding both public and private law, socioeconomic and health deprivation of various forms is associated with higher rates of proceedings. Discovering health and social determinants of proceedings could inform upstream interventions to support parenting, improve wellbeing, reduce conflict and adversity and prevent the need for court involvement in the first place. It could also inform measures to mitigate the adverse health effects of legal processes on vulnerable families and debates on legal aid and alternative dispute resolution in private proceedings. This ‘public health’ approach to family justice is now possible by innovations in linking whole-population, routinely collected datasets between the courts, healthcare and other services. This article explores the possibilities of combining legal and epidemiological understandings, methods and skills in researching family justice to inform practice, policy and legislative reform.

‘Let’s excuse abusive men from abusing and enable sexual abuse’: child sexual abuse investigations in England’s private family courts

ABSTRACT Child Sexual Abuse (CSA) is an ongoing scourge upon society. There is minimal understanding of the experiences of mothers and children in private law family court proceedings (PLP), when CSA is reported. A qualitative study was conducted and a feminist-informed Foucauldian Discourse Analysis was applied to understand ten life-stories from within a larger sample of 45. Five themes are presented. CSA was overwhelmingly reported as being minimised, with harmful outcomes for children and mothers reported. Pro-father and ‘parental alienation’ narratives were a facilitator of severe harm and continued male violence to victim-survivor mothers and children. Further research into the scale and prevalence of CSA within PLP is urgently required.

Systemic failures in New Zealand's child-welfare and Family Court proceedings underlie and perpetuate child offending

Early childhood offending onset (before age 14 years) is associated with increased risk of lifecourse offending and poor life outcomes. The vast majority of children who offend in Aotearoa New Zealand (N.Z.) have had involvement with the child-welfare system prior to offending. Why does this engagement with statutory systems not prevent the trajectory into offending, nor its persistence into the youth-justice system (aged 14–18)? This study interviewed 33 key stakeholders (including family members, lawyers, police officers, social workers, psychologists, school and cultural leaders) on the systemic issues they had experienced with children who had offended and their families. Interviews were transcribed and analysed by the authors. Barriers to effectively responding to offending (and, more importantly, prevention of offending in the first place) included child-welfare engagement that was delayed and ineffective; deficit-focused engagement with families and children; under-resourced Family Court systems that delayed court proceedings and further hindered effective child-welfare intervention; and systemic shortfalls that continued once a child had offended, with widespread uncertainty as to how best to respond or access appropriate resources. Earlier and more effective intervention with children and families with child-welfare concerns is needed to prevent and reduce offending and victimisation of and by children.

Parental Alienation—What Do We Know, and What Do We (Urgently) Need to Know? A Narrative Review

Research on behavior seeking to disrupt, deny, or negatively impact the parent–child relationship, sometimes labeled as parental alienation (PA), has burgeoned in recent years. Despite this proliferation, the theoretical and practical conceptualization of PA is still a highly controversial topic, not helped by the potential outpacing of academic knowledge on PA in relation to its application in socio-legal and clinical contexts. Confusion and controversy persist despite several recent reviews seeking to provide clarity on different areas of PA-related discourse (e.g., its effect on alienated children). The current narrative review, therefore, sought to synthesize learnings from those reviews (most of which were published between 2020 and 2022), with subsequently published work, in the most comprehensive and contemporaneous overview of PA to date. As a narrative review, there were no specific inclusion criteria, other than a limitation to English manuscripts and literature from the last 10 years. Snowballing was also utilized, whereby reference lists were used to identify further papers for inclusion. The resulting review outlines current understandings of (a) the key areas of controversy relating to PA, including how it is defined, its use in family court proceedings, and recommendations on intervention; (b) how PA is enacted, by whom, and in what contexts; and (c) how PA impacts on parents, children, and other family members. Crucially, urgent recommendations for further research directions are then made, particularly in relation to legal applications and therapeutic intervention.

Health-related experiences of family court and domestic abuse in England: A looming public health crisis

Domestic abuse is known to be harmful to victim-survivor mothers’ well-being, and women are disadvantaged by gender-biased systems in England. Less is known, however, about victims’ experiences with family court specifically in relation to their mental and physical health. Interviews with 45 mothers were conducted to explore these experiences. Two main themes are presented here: (1) physical and mental health experiences associated with family court proceedings and (2) parental alienation allegations as a weapon to trap, silence, and pathologise mothers. From these themes, a conceptual framework was developed: Court and Perpetrator Induced Trauma (CPIT). These findings may have global significance for services and practitioners who work with mothers exposed to family court.

Experiences of intimate partner violence victims: Continued abuses during and after litigation

This quantitative study examined the experiences of intimate partner violence victims during and after separation, with a particular focus on experiences with family court proceedings. Participants were recruited from a family court advocacy agency and self-identified as victims of intimate partner violence. This study explored the following three hypotheses: 1) Participants will report an increase in harassment, stalking, verbal, psychological, and emotional abuse from ex-partners post-separation 2) Participants will report re-traumatization from legal professionals and paraprofessionals in the family law or court system 3) Participants will report that behaviors associated with litigation abuse will go unrecognized by the family court system and legal professionals. Participants reported a post-separation increase in incidents of physical harm toward their children, threats to take their children away, threats to the survivor, their children, family, property, or pets, financial abuse, and insulting or threatening texts or social media messages. Many participants reported re-traumatization in court and reported that legal professionals verbally threatened them, mocked them, did not give them a chance to speak in court, exaggerated the survivor’s faults in court, and provoked them to elicit emotional reactions. Domestic violence survivors indicated a lack of trust in the systems in place to protect them. Systems-level changes to legal proceedings and expanded training for legal professionals is needed.

‘Swim, swim and die at the beach’: family court and perpetrator induced trauma (CPIT) experiences of mothers in Brazil

ABSTRACT Gender-based violence (GBV) and Domestic Violence (DV) are prevalent in Brazil. There are growing concerns globally regarding the weaponisation of the pseudo-concept ‘Parental Alienation’ (PA) in the family courts against women. Additionally, a lack of understanding of mothers’ family court and health-related experiences indicated a need to explore this topic further. A qualitative study was conducted with thirteen mothers who are victims of Domestic Violence and have been accused of PA. Mothers reported a range of harmful health experiences, delineated here under the conceptual framework of Court and Perpetrator Induced Trauma (CPIT). Six themes are presented, which encapsulate a range of harmful actions, behaviours and circumstances (ABCs) that surround these mothers and their responses to these ABCs. Multiple physical health conditions were reported as associated with family court proceedings. This included maternity problems, musculoskeletal, autoimmune, and respiratory conditions and a broad range of mental health implications including suicide and other trauma responses. Human rights violations, the weaponisation of ‘Parental Alienation’ and inherently misogynistic and oppressive justice systems in Brazil were also reported. Urgent measures and further research are now needed to investigate causal links between harm to health and the family courts and to strengthen human rights protection for women and child victims in Brazil and beyond.

Engaging fathers who commit family violence: Issues and challenges for family courts

AbstractIntervention with fathers who commit family violence is an essential but often overlooked part of effective family court proceedings. This article provides an overview of how evidence‐informed engagement with fathers around family violence can complement family court efforts to achieve safe and healthy outcomes for children. The focus on fathers is not based on bias against fathers, men, or masculinity, but rather it is consistent with the fact that fathers comprise a substantial proportion of those who use family violence. These men need more effective engagement and interventions. Fathers in these circumstances need to be engaged in services that can assess, monitor, and manage ongoing family violence and risk as well as develop skills to form more positive, healthy relationships with their children and children's mothers. Courts, in turn, need to consider evidence of accountability and change. Application and continued development of the strategies recommended herein would enhance the safety of mothers who experience violence, their children, and the well‐being of fathers who have used family violence. Collaboration with community partners serving families must become cornerstones in promoting the safety for and with all family members.

Intimate Partner Violence Survivors' Perspectives on Coping With Family Court Processes.

Although intimate partner violence (IPV)-exposed mothers report distress during family court proceedings, no known research examines what helps them cope. We analyzed qualitative responses from 214 IPV-exposed mothers to the question of who/what helped during family court. Participants described (a) receiving social support, (b) accessing tools and resources, (c) modifying actions, thoughts, and emotions to adapt to a system that is not trauma-informed, (d) being believed/validated, and (e) managing post-separation family life as helpful. Participants also reported (f) barriers to navigating family law proceedings; a few expressed nothing helped. Findings support a trauma-informed, network-oriented approach to supporting family court-involved survivor mothers.

“Catastrophic”: A qualitative exploration of survivors experiences of expert instruction in private law child arrangements proceedings

ABSTRACTThis article explores the lived experiences of female survivors of domestic abuse when an expert had been instructed in private law family court proceedings in England and Wales. It considered survivors’ lived experiences from the moment that an expert was suggested to the expert report outcome. The study found that when the family court has made no findings of domestic abuse the court’s focus shifts from the perpetrator to a survivors’ behaviour. Survivors described that, despite their reservations, they considered the expert assessment to be the last opportunity for a professional to recognise the domestic abuse and change the court’s opinion. Survivors found that their natural brain’s response to trauma, due to abuse, was repackaged and (mis)diagnosed as disordered behaviour. Expert reports recommended psychological treatments that were often conditional to any future changes to child arrangements in their favour. Further, survivors’ lived experiences described how perpetrators were able to harness the legal mechanism of child removal and use it as a form of post-separation coercive control, often supported by the expert. Overall, survivors’ lived experiences raised serious professional and safeguarding concerns, as well as ethical issues about the role and impact of the expert in private law child arrangements proceedings.

“Stigmatization and perceived dangerousness for intrafamilial child sexual abuse of fathers with a history of sexual offenses and paraphilic interests: Results from a survey of legal psychological experts”

BackgroundIntrafamilial child sexual abuse (ICSA) is a puzzling phenomenon that is not well understood by researches. Nevertheless, psychologists are demanded to assess the risk for child maltreatment by family courts regarding male caregivers with a history of sex offenses and/or paraphilic interests. ObjectiveThe aim of this study was to assess legal psychological experts' perspective on risk assessment in family court proceedings regarding ICSA, their opinions regarding the necessity of contact limitations between fathers/stepfathers who might impose a risk for ICSA, and experts' stigmatization of minor-attracted persons. Participants and setting153 psychological experts working in family court proceedings were assessed via an online survey. MethodJahnke's Stigma Inventory was used as well as a questionnaire tapping into different contact limitations, the perception of child maltreatment risk, and parental capacity. Network analysis was conducted to multivariately investigate item intercorrelations. ResultsFathers/stepfathers with a diagnosed pedophilic disorder are being regarded as most dangerous, 71 % of the experts agreed with the necessity of a complete contact ban. Reduced parental capacity and increased risk for child maltreatment was observed with regard to sexual offending history and paraphilias. ConclusionsPsychological experts in family court proceedings hardly discriminate between sexual offending and paraphilic interests which might be associated with stigmatizing attitudes and lack of experience. An increasing cooperation between family psychologists and experts of forensic risk assessment might reduce the risk of stigmatization and may contribute to more adequate risk assessments for ICSA thus aiding to prevent children from sexual victimization or misinformed risk management interventions.

It's just so difficult to get anything done: Teen mental health in the family court setting

AbstractNavigating the family court setting to protect teen mental health, meet teens' mental health needs, and promote resilience and coping skills is challenging. We have tools that can help us meet that challenge. That toolkit includes: expanding who is involved in the work to develop a parenting plan or treatment plan; not reducing the case to a one‐dimensional fact pattern; restructuring family court proceedings for ongoing problem‐solving, providing protections for the teen's privacy; using consensual dispute resolution and adjudication on parallel tracks; and educating the decision makers through expert declarations and Brandeis briefs (even at the trial court level).

Family Law

More than 300,000 new family law cases were filed in Texas in 2022; more than a third of those were divorces (and there were more divorces in Texas than in any other state). Tens of thousands of children live in households that are involved in family court proceedings in any given year. Family law remains one of the areas with the greatest unmet legal need—more than half of litigants are pro se in cases with enormous stakes. The work of lawyers, judges, and other professionals in this area should not be underestimated. In this Article, we will try to lighten the load somewhat by highlighting the most important family law cases during the year 2022. As the reader will see, they touch on a wide range of issues, both substantive and procedural. There is no single takeaway from this year’s case law, but the opinions illustrate the challenge of staying on top of a complex and busy area of law.

Born into care: Associations between area-level deprivation and the rates of children entering care proceedings in Wales

There is international concern about rising rates of children entering out-of-home care and what might be done to reduce the need for compulsory intervention in family life. Previous studies have analysed the associations with family-level variables, such as a presence ofdomestic abuse, parental mental health problems, andsubstance misuse in the parental household. Other studies have looked at multiple area-deprivation as a predictor of childhood adversity, but there is a dearth of research which disentangle the associations between the rates of children in care and different forms of deprivation. This paper sheds light the statistical associations between different area-deprivation domains and the rates of infants and older children involved in care proceedingsin local authorities in Wales, UK, between 2014 and 2019. Data on family court proceedings in Wales from the Children and Family Court Advisory and Support Service (Cafcass Cymru), held within the Secure Anonymised Information Linkage (SAIL) Databank, was linked to information on area-deprivation and incidence rates were computed. Employment deprivation, income, educational and health deprivation are associated with increased incidence rates. Environmental factors such as the physical, housing and access to services domain were not found to be statistically related to the risk of care proceedings. The paper advances knowledge about the wider policy context regarding how to improve the social wellbeing of children in local communities.

Domestic abuse and the provision of advocacy services: mapping support for victims in family proceedings in England and Wales

ABSTRACT The role that domestic abuse services play in supporting victims through the family courts is under documented in domestic abuse literature, save for a recent enquiry conducted by SafeLives which was published in June 2021. The key contribution of that report was in providing quantitative insights into the extent of support available for victims in family court proceedings. This article seeks to build on the work of SafeLives by presenting empirical insights from a separate study in which 29 domestic abuse specialists and legal professionals either completed an online questionnaire, participated in a semi-structured interview, or engaged in both forms of participation. Whilst there is some overlap in the remit of this study and the SafeLives’ study, there are also important methodological differences which impact upon the respective findings, not least that this study has a greater qualitative focus and therefore provides richer insights. The conclusions are timely in light of the Home Office announcement that £81 million is being made available to recruit 700 Independent Domestic and/or Sexual Violence Advisers, and the introduction of Domestic Abuse Protection Orders under the Domestic Abuse Act 2021, which may see non-legally qualified specialists take a greater role in securing family court protection.

Coercive Control in the Courtroom: the Legal Abuse Scale (LAS).

Intimate partner violence (IPV) survivors seeking safety and justice for themselves and their children through family court and other legal systems may instead encounter their partners’ misuse of court processes to further enact coercive control. To illuminate this harmful process, this study sought to create a measure of legal abuse. We developed a list of 27 potential items on the basis of consultation with 23 experts, qualitative interviews, and existing literature. After piloting these items, we administered them to a sample of 222 survivor-mothers who had been involved in family law proceedings. We then used both exploratory factor analysis (EFA) and Rasch analysis (RA) to create a final measure. Analyses yielded the 14-item Legal Abuse Scale (LAS). Factor analysis supported two subscales: Harm to Self/Motherhood (i.e., using the court to harm the survivor as a person and a mother) and Harm to Finances (i.e., using the court to harm the survivor financially). The LAS is a tool that will enable systematic assessment of legal abuse in family court and other legal proceedings, an expansion of research on this form of coercive control, and further development of policy and practice that recognizes and responds to it.

Anxiety and depression among children and young people involved in family justice court proceedings: longitudinal national data linkage study.

Little is known about mental health problems of children and young people (CYP) involved with public and private law family court proceedings, and how these CYP fare compared to those not involved in these significant disruptions to family life. This study examined records of depression/anxiety in CYP involved in public and private law proceedings using linked population-level data across Wales. Retrospective e-cohort study. We calculated the incidence of primary-care-recorded depression/anxiety among CYP involved in these proceedings and in a comparison group, using Poisson regression. Depression/anxiety outcomes following proceedings were evaluated using pairwise Cox regression, with age- and gender-matched controls of CYP who had no involvement with the courts. CYP in the public group had twice the risk of depression (adjusted incidence rate ratio aIRR = 2.2; 95% CI 1.9-2.6) and 20% higher risk of anxiety (aIRR = 1.2; 95% CI 1.0-1.5) relative to the comparison group. The private group had 60% higher risk of depression (aIRR = 1.6; 95% CI 1.4-1.7) and 30% higher risk of anxiety (aIRR = 1.3; 95% CI 1.2-1.4). Following private law proceedings, CYP were more likely to have depression (hazard ratio HR = 1.9; 95% CI 1.7-2.1), and anxiety (HR = 1.4; 95% CI 1.2-1.6) than the control group. Following public proceedings, CYP were more likely to have depression (HR = 2.1; 95% CI 1.7-2.5). Incidence of anxiety or depression following court proceedings was around 4%. Findings highlight the vulnerability of CYP involved in family court proceedings and increased risk of depression and anxiety. Schools, health professionals, social and family support workers have a role to play in identifying needs and ensuring CYP receive appropriate support before, during and after proceedings.

Urgent Care Proceedings for New-born Babies in England and Wales – Time for a Fundamental Review

Abstract Emergency action to safeguard babies at birth who are at risk of significant harm is sanctioned in a number of international jurisdictions, including the UK, the USA, Canada, Australia, New Zealand, and Europe. However, there is widespread international disquiet about this practice, regarding breaches of parents’ Articles 6 and 8 rights (Human Rights Act 1998), as well as the reliability of hasty decisions for children. This article reports the findings from the first large-scale qualitative study of professional and parental experience (n = 307 participants) of compulsory State intervention at birth, with a specific focus on urgent care proceedings. Completed in eight local authority areas and corresponding health trusts in England and Wales (2019–2021), the study concludes that children’s social care, hospitals, and the family courts are not yet sufficiently aligned around the needs of a small, but highly vulnerable population of mothers, their partners, and babies to ensure equitable, just or effective practice in cases of urgent care proceedings. Evidence is provided from both professionals and parents about the highly consequential nature of interim decisions, particularly where they result in physical separation of mother and baby at birth. The article advances knowledge about the distinctive challenges of issuing family court proceedings in the immediate post-partum period and calls for a fundamental review.

Using Parental Attachment in Family Court Proceedings: An Empirical Study of the DMM‐AAI

Two methods for classifying Adult Attachment Interviews (AAI) for family court decision‐making, Berkeley and DMM, differ in their usefulness for family court. Both expand Ainsworth's three ABC infant categories. The Berkeley method adds a fourth Disorganised/Unresolved category in adulthood, but has low specificity and validity for risk parents. The DMM method identifies an expanding array of strategies across the lifespan, as neurological development makes more complex strategies possible. This study examined DMM‐AAI classifications in a sample of 332 British AAIs and compared the results to published meta‐analyses of the Berkeley AAI. Six a priori hypotheses addressed the central question raised: which classificatory method for the AAI is more useful for child protection? DMM‐AAI classifications differentiated between (i) normative adults, (ii) parents with mental health problems, (iii) parents in family court proceedings and (iv) incarcerated violent criminals on attachment, psychological trauma and pervasively high or low arousal. We assert that the DMM‐AAI is sufficiently valid and discriminating for court use and that it can contribute to court decision‐making when integrated with other assessments and clinical reports.‘Which classificatory method for the AAI is more useful for child protection?’Key Practitioner Messages DMM‐AAIs, classified by authorised experts, meet forensic criteria. DMM‐AAIs differentiate maltreating parents from other parents in attachment strategy, trauma and parental reasoning. DMM‐AAI classifications indicate the type of services parents are ready for. Parents with particular classifications might need their own safety addressed before they can benefit from parent training. Customised service plans can help maltreating parents to meet their basic needs so as to better meet their children's needs.