Felicity Kaganas

Domestic violence and divorce mediation

Abstract Both domestic violence and mediation have attracted considerable attention from academics and the public at large. However, the debate has focused on these issues as discrete and unconnected and it is only in recent years that they have been recognised as potentially interlinked. The question of whether disputes should be mediated where the partners have been involved in an abusive relationship has not, therefore, been high on the public agenda in the past. This is not now so. The Law Commissions proposals for divorce reform, recently endorsed in the Consultation Paper issued by the Lord Chancellors Department, include a waiting period when couples will be made aware of the benefits of mediation. Whilst the Consultation Paper acknowledges that divorcing spouses who have experienced domestic violence constitute a special category there is little acknowledgement of the complexity of the issue. This article, therefore, reviews research on domestic violence and mediation to point out the theoretica...

Justifying the LASPO Act: authenticity, necessity, suitability, responsibility and autonomy.

Abstract This article examines the ways in which the radical cuts to legal aid in private family law cases were presented and justified by the then government. It is argued that the targeting of legal aid in these cases for austerity measures was legitimated and facilitated by a skewed interpretation of history; by the use of the neoliberal discourses of responsibility and autonomy; by minimising the importance of family disputes; and by means of negative portrayals of the role of law and lawyers in such cases. The article goes on to consider the impact of the legislation and concludes that it is the competent poor, the unacknowledged vulnerable and the unassertive who are most affected by the LASPO Act. Since women, collectively, are more likely than men to fall into these categories, the result is that women, in particular, who benefited historically from wider and easier access to justice, are those who are most disadvantaged by its curtailment.

Parental involvement: a discretionary presumption

Section 1(2A) of the Children Act 1989 establishes a statutory presumption that ‘involvement’ of both parents in their childrens lives after divorce or separation is in childrens best interests. This paper sets out to examine what effect this had had. The aim of the legislation was to improve the transparency and clarity of judges’ reasoning. This would help to reduce the numbers of parents litigating and would placate fathers’ rights groups who were damaging confidence in the family justice system. Drawing on a sample of reported cases, this paper concludes that, at the higher levels, courts are not implementing the presumption. Nor has the presumption succeeded in placating fathers’ rights groups or significantly reducing the number of cases coming to court. It appears that the presumption has had little impact and the governments aims have not been realised. However, where it is having some impact, the presumption may be putting mothers and children at risk.

Introduction: contact and domestic abuse

ABSTRACT This article introduces the special issue of the Journal of Social Welfare and Family Law on contact disputes and allegations of domestic abuse. It first describes the aims and findings of the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices at which the papers in the special issue were originally presented. It then outlines the position in England and Wales regarding allegations of domestic abuse in child arrangements cases, highlighting the difference between the ‘law in the books’ and the ‘law in action’. Thirdly, it discusses the research evidence on another prominent international approach to domestic abuse allegations – legislative presumptions against custody or unsupervised visitation/contact for abusive parents. The experience of presumptions in the USA and New Zealand suggests that a similar gap between ‘law in the books’ and ‘law in action’ exists, together with potential problems of legislative drafting. Finally, the article outlines the contributions of the other papers in the special issue to our understanding of international approaches to ensuring safety for children and resident parents in family proceedings where allegations of domestic abuse are raised.