‘Ground Rules hearing’ when domestic abuse has been raised in a financial remedy case – participation directions
If domestic abuse is raised in a financial remedy case, the solicitor should consider if the victim’s ability to participate fully in the proceedings has been impacted. If the victim has been subjected to many years of abuse, his or her ability to consider large amounts of technical information in a pressurised environment could have been effected. Current court rules obliges the court to consider the vulnerability of the parties to family court proceedings.
The rules provide that if a party is, or is at risk of being a victim of domestic abuse, that party should be considered as vulnerable. This then entitles the vulnerable party to particular protective measures in family proceedings. The court does this by making a participation direction.
It is reported by academics and others, that although domestic abuse is a vulnerability in itself, it may trigger or contribute to other forms of vulnerability. These include, for example, mental ill-health, disabilities and learning difficulties.
It is reported that domestic abuse could have the following effects:
a) Impact the victim’s ability to attend an in-person hearing due to the close proximity to their abuser causing significant distress.
b) Effecting the victim’s cognitive and/or physiological abilities so the victim has difficulty in concentrating or speaking if a traumatic reaction is triggered.
c) The victim might feel intimidated and unable to put forward their case in full in the presence of their abuser.
Ground rules hearing – participation directions
When the court has decided that a vulnerable person should give evidence the court will list a ‘ground rules hearing’ prior to any hearing at which evidence is to be heard. At the ‘ground rules hearing’, the court will make any necessary participation direction. The ground rules hearing does not need to be a separate hearing to any other hearing in the proceedings. Participation directions apply as soon as possible once proceedings have been commenced. They should also remain in place until the conclusion of the proceedings.
These participation directions would cover any necessary support required and cover a number of matters. If the court agrees that participation directions are required, the court can make a number of directions to ensure the victim feels safe and to prevent the victim from being intimidated and to minimise any form of distress during the proceedings. Directions could prevent a party to the proceedings or a witness from seeing another party or witness or result in directions for screens or other measures such as video links or a hybrid hearing.
A concern in financial remedy proceedings relates to the requirement of the parties to negotiate with one another to reach a settlement to avoid costly and prolonged court proceedings. As part of the court process, at the Financial Dispute Resolution hearing (FDR hearing) the parties are expected to negotiate with one another. The issue this then raises is, how effective would a FDR hearing be, if domestic abuse is present or considered as a risk. The victim might feel protected if he or she is legally represented to prevent an unfair settlement or unfair advantage being taken by the other party. This would however be more problematic, if both parties were unrepresented.
Therefore, if a participation direction has been made on the basis of a party’s vulnerability, there should be no expectation that a victim of domestic abuse should negotiate with the other party out of court. Instead, the judge should ensure that both parties are in court and to consider if it is reasonable to expect the victim to negotiate directly with the other party. The victim would also be assisted by the judge providing a strong indication of what a reasonable outcome would be, to prevent an unfair settlement being reached due to the victim feeling pressurised into a settlement.
If you believe you are a victim of domestic abuse and need assistance, please do not hesitate to contact our team of experienced family lawyers who can help with your situation.