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Home > Articles > 2016 archive

Honour Based Violence in Children Act Proceedings: A Question of Allocation

Damian Stuart, barrister, FOURTEEN, considers how the family courts might better deal with allegations of honour based violence in the context of private law Children Act proceedings.

Damian Stuart, barrister, FOURTEEN










Damian Stuart, barrister, FOURTEEN

As the Prime Ministerial Jaguar drove Theresa May on the short journey from Buckingham Palace to Downing Street recently, commentators were already penning David Cameron's political obituary, debating what his legacy truly would be. Many family lawyers remain critical of Mr Cameron, particularly for the changes to legal aid overseen by the then Lord Chancellor, Chris Grayling. However, there can be little doubt that his government, with Theresa May as Home Secretary, took significant strides in tackling a number of the serious risks facing women and children such as female genital mutilation and forced marriage. Some good work had been undertaken to combat (so called) honour based violence, but further and continued efforts are needed. Complacency and inaction, perhaps due to fear of offence, are dangerous threats.

In her first outing at Prime Minister's Questions, Mrs May was asked by Nusrat Ghani (Con, Wealdon) about honour based violence and whether it ought to be treated as a form of terrorism. The Prime Minister agreed that it could be treated as an extremist practice and, promising to continue the work on this issue, said that: "There is no honour in honour based violence. It is violence pure and simple."

Honour based violence and honour killings were also in the news recently with the murder of Qandeel Baloch (referred to in parts of the media as Pakistan's Kim Kardashian) by her brother in their family home in Multan. Most reasonable people would agree that being a welcoming and multi-cultural society does not extend to permitting the importation of such beliefs and behaviours.

The terms "honour killing" or "honour based violence" are clearly inappropriate. There can never be any honour in killing someone or causing them harm for, supposedly, bringing shame onto a family. That such practices occur here in the United Kingdom and are on the increase, is a stain on our nation. Indeed, the biggest dishonour lies with the perpetrator of such violence.

It is right that we consider how the family courts deal with such allegations in the context of private law Children Act proceedings.

According to The Metropolitan Police, honour based violence is "a violent crime or incident which may have been committed to protect or defend the honour of the family or community."

The Halo Project (www.haloproject.org.uk) state that there are on average 12 honour based killings in the United Kingdom each year, but added that this figure does not take account of the women and children who are taken abroad and killed. They describe honour based violence as taking many forms, including threatening behaviour, assault, rape, kidnap, abduction and murder. They say that this can often be for trivial reasons such as a person becoming "too westernised" or falling in love with the "wrong person".

The Iranian and Kurdish Women's Rights Organisation (www.ikwro.org.uk) says that there were more than 2,800 incidents of honour based violence in the United Kingdom in the year to December 2011; and that this may be a conservative figure as many incidents go unreported.

The consequences of domestic violence can cover the entirety of the spectrum of seriousness. It can range from relatively minor physical and emotional injuries to death. However, the above definitions of honour based violence illustrate that its consequences are almost always at the higher end of the spectrum of seriousness.

Currently, the courts do not have any guidance either from the President or the Court of Appeal as to how to allocate Children Act cases where honour based violence is alleged by (usually) the mother. I recently came across one such case that was allocated to justices to hear as justices can hear (and often do hear) cases where domestic violence is one of the issues. That cannot be right as there is a clear distinction between an "ordinary" domestic violence case and one where honour based violence is alleged: distinctions in relation to the nature of the acts, the seriousness of the consequences and the persistence of the abuser(s).

There is a difference between the momentary loss of control or temper, usually by a person acting alone (which is often a feature of a case concerning domestic violence), and the premeditation (and possible collusion with others) and possible ingrained cultural beliefs involved with honour based violence.

Honour based violence also carries with it risks in the future different from other types of domestic violence. The separation of the parties does not diminish the risk (perhaps the reverse) and the child may also be at risk. Consequently, where the court, at a finding of fact hearing, makes findings in this regard, the issues in respect of determining risk and how and whether these risks can be managed or ameliorated to enable the child to have a relationship with the father, are quite different from those same issues in more ordinary cases involving domestic violence.

Accordingly, given the consequences on the alleged victim and child of the court failing to find that an act or a course of behaviour amounted to honour based violence, it must be right that such decisions are taken by experienced, professional judges who have the ability to consider and make determinations based on, what may be, very nuanced evidence perhaps given by someone fearful of the consequences of giving such evidence (and potentially therefore reluctant to do so) and in a second language or through an interpreter.

It follows that the consequences for a father (for it usually is a father) against whom findings are sought are arguably more severe if a finding of honour based violence is made rather than a finding that he has simply been violent towards his former partner. The consequences on the child's relationship with the father can be more severe. It may even lead to that relationship foundering. Accordingly, there is a particular importance in ensuring that the court makes the correct fact finding decision.

It is therefore arguable that the only proper approach would be for matters where there is an allegation of honour based violence, to be listed before an experienced and professional judge; and that allegations of honour based violence ought to be treated much like allegations of female genital mutilation and forced marriage insofar as the allocation of judiciary is concerned, given that there are parallels in terms of the cultural genesis, the reluctance of the alleged victim to speak out and the serious consequences for all concerned. It is invariably so that cases where there is an allegation of forced marriage or female genital mutilation will be considered by a judge of the High Court or a limited number of circuit judges at Forced Marriage Centres across England. They would never be determined by lay justices.

Indeed, there is an arguable case for honour based violence cases to be currently tried only by High Court judges or a limited number of circuit judges. When issues relating to HIV were less well understood than they are now, applications within Children Act proceedings for a child to be tested for HIV were restricted to High Court judges. The logic was that it would ensure that a body of knowledge was built within the 19 judges of the Division. Such concentration of numbers would aid the speedy development of knowledge and experience in dealing with the specific issues pertaining to such cases. This could then filter down to circuit judges and district judges. Now, applications for HIV testing can be heard by circuit and district judges as the body of knowledge and experience has been so increased. Therefore, it makes sense that the same approach is taken with honour based violence cases.

But what is the position?

The President has produced the President's Guidance on Allocation and Gatekeeping for Proceedings under Part II of the Children Act 1989 (Private Law); and a Schedule to The Allocation and Gatekeeping Guidance – Private Law. The authority to the President to give guidance on the distribution of business of the Family Court comes from Rule 21 of The Family Court (Composition and Distribution of Business) Rules 2014.

Rule 20(2) of the 2014 Rules provides that when deciding which level of judge to allocate a matter to, the decision must be based on the relative significance of the following factors:

(a) The need to make the most effective and efficient use of the local judicial resources that is appropriate, given the nature and type of the application;

(b) The need to avoid delay;

(c) The need for judicial continuity;

(d) The location of the parties or of any child relevant to the proceedings; and

(e) Complexity.

As far as the Schedule appended to the President's Guidance is concerned, this begins with a note that it is envisaged that private law proceedings will be allocated to lay justices unless they are of the type set out in the Schedule.

The Schedule does not specifically relate to the issue of allegations of honour based violence. However, some of the matters referred to are likely to be present in cases where honour based violence is an issue.

Part 1 of the Schedule provides for those cases which should be allocated to a district judge (unless in the opinion of the allocated district judge, the particular characteristics of the individual case justify to a circuit judge). Part 1 includes:

Part 2 of the Schedule provides for those cases which should be allocated to a district judge but which may be a circuit judge (or at most serious level by a High Court judge). Part 2 includes:

The difficulty is that the absence of provisions for the allocation of cases where honour based violence is alleged, means that allocation is therefore left at the discretion (in the first instance) of a justice's clerk and district judge rather than automatically going before the right level of judge. This can lead to cases being wrongly determined and vulnerable people being put at risk of serious harm or death.

Once cases where honour based violence is alleged have been allocated, there is no provision for how they should be case managed. This can lead to the courts treating them much the same as any other case where domestic violence is an issue. That may result in insufficient interim protective measures being taken and incorrect case management decisions taken which, in turn, may mean that the court does not have the evidence that it needs to determine the issues.

Guidance on the allocation and management of these very serious and evidentially complex cases is, I suggest, urgently required. Perhaps the next View from the President's Chamber?

24/8/16