Publication - Research and analysis

Domestic abuse courts: report

Published: 3 Sep 2019
Directorate:
Justice Directorate
Part of:
Law and order, Research
ISBN:
9781839600883

This report examines the effectiveness of Integrated Domestic Abuse Courts (IDACs) that use a ‘One Family, One Judge’ model.

33 page PDF

504.3 kB

33 page PDF

504.3 kB

Contents
Domestic abuse courts: report
IDACs in international jurisdictions

33 page PDF

504.3 kB

IDACs in international jurisdictions

Identifying IDACS in other jurisdictions provided an initial challenge. There is no single model of IDACs and even within jurisdictions there are local differences between courts (particularly in New York state, where courts developed asymmetrically across different districts). Part of the reason for confusion is the use of the 'one family, one judge' model across numerous different court types. Inclusion of only 'one family, one judge' and domestic abuse/family court cases would mean the scope of the study was very wide.

Confusion on definition was reflected in interviews with some key informants in Scotland, who communicated uncertainty regarding the specific model which might be most effective in the Scottish court context. Scottish Women's Aid advocated for "some version…of family courts" as operationalised in the USA but emphasised that 'one family one judge' was only one element of a more holistic approach towards improving the experience of justice for women and children experiencing domestic abuse.

The models identified as IDACs varied in their level of complexity in terms of the remit and range of matters addressed by the court. The working definition of IDAC for the purposes of this research was confirmed as: 'a court in which a single judge hears both criminal and civil cases relating to one family, where the underlying issue is domestic abuse'.[2] For the purposes of this research, IDACs are considered a single court which includes all of the following elements:

  • Jurisdiction over summary-level domestic criminal cases; and
  • Jurisdiction over civil cases involving child contact, child maintenance, parental rights/responsibilities, but excluding divorce, property disputes and child protection cases; and;
  • A system of one family, one judge.

A criminal domestic abuse charge and a concurrent family law case are the compulsory elements of this model. The levels of complexity generally relate to the types of civil matters addressed by the court (i.e. divorce, child protection, property) and whether or not the court has the capacity to hear contested criminal trials. The literature review also identified that there were some courts that use the 'one family, one judge' model where domestic abuse is included in the remit of the court but not a compulsory element; rather domestic abuse is one of many possible entry points to the court.[3]

There were three categories of 'integrated courts' identified during the literature review:

  • The simple IDAC model: courts that deal solely with summary-level domestic abuse and concurrent family law cases; but which do not have the capacity to deal with contested criminal trials, child protection, divorce or property disputes.
  • The complex IDAC model: courts that deal solely with domestic abuse and concurrent family law cases, but also have the capacity to deal with divorce, property disputes and child protection.
  • 'One Family One Judge' problem-solving courts: integrated courts which use the 'one family, one judge' model to address a variety of cases, including but not limited to: domestic abuse, substance abuse, mental health, and juvenile offending. Domestic abuse is one of a number of different case types handled by the court and is not compulsory for entry into the court system.

For the purposes of clarity and focus, the decision was made to concentrate primarily on the simple IDAC model. However, as the majority of literature on IDACs is from the USA, an impactful assessment is difficult without also considering the US (complex) models to some degree. However, the evaluation methods of the US models vary making it difficult to draw meaningful comparisons. The ability to cleanly evaluate and monitor IDACs is particularly difficult when other factors - such as substance abuse and civil issues (e.g. property division) - are included in the court process.[4] Establishing baseline equivalence between jurisdictions is made additionally difficult due to the presence or absence of multiple different factors (such as divorce and child protection issues) between cases.[5]

The simple IDAC models: Ontario and Croydon

The Croydon and Ontario IDVCs are categorised as simple IDAC models. This model "provides one court where families can have their family cases (excluding divorce, family property and child protection) and domestic violence criminal charges heard before a single judge" (OCJ no date). The Croydon and Ontario courts focus on domestic abuse and the domestic criminal charge is entry point for access into the IDVC. The court process takes place within a dedicated courtroom and the traditional two-court civil and criminal structures are maintained (in the explanation of the Croydon IDVC, it is emphasised that "the IDVC, despite the use of the word 'court' involves only new procedures and is not a new jurisdiction" (emphasis in original)).[6]

Croydon IDVC was set up in 2006 and is now discontinued. It was established to deal with summary-level domestic criminal charges where the family had concurrent civil family proceedings, which fell under the Children Act 1989 or Family Law Act 1996.[7] It was established in the context of the Home Office's (2003) Safety and Justice report, which focused heavily on the interface between criminal and civil court in cases of domestic abuse[8] and has been described as an "experiment" in the literature.[9] The IDVC began life as an SDVC with the longterm aim of bridging the gap between civil and criminal cases involving domestic abuse and child contact.[10] Despite extensive planning and the expectation of approximately one case per week, only 5 cases were entered into the Croydon IDVC over an 18 month pilot period[11] . Of these, only one case involved directly overlapping criminal and civil cases eligible for the IDVC, and there were no instances of a perpetrator being found guilty of a domestic abuse offence and the court then proceeding to hear the civil matter.[12]

The Ontario IDVC was established in 2011, following a pilot in 2009, and is still running. The court hears criminal domestic cases followed by the same family's relevant civil case on the same day, by the same judge (except in the case where there is an unresolved criminal trial - trials are adjudicated by a second judge to avoid legal prejudice.[13] Summary-level domestic criminal cases are sifted to identify whether there is a concurrent relevant civil case and entered into the IDVC if so. The types of summary charges being heard in the IDVC include "criminal harassment, threatening, assault, assault causing bodily harm and sexual assault".[14] On occasion, immigration issues are addressed in the court if they are relevant to the family, but otherwise what is included in proceedings is limited solely to relevant domestic crimes/offences and family law cases.

Complex IDAC models: New York and Vermont

The New York and Vermont IDVCs are categorised together as complex IDAC models, though they vary in their form. In Vermont, the Bennington County IDVC was set up in 2007, founded by Judge David Suntag, and ran for just under 3 years (its closure was due to the withdrawal of stakeholders' support for the court). Judge Suntag set up the IDVC at Windham county in 2013 using the same model, which operated for one year but closed when Judge Suntag retired. The courts dealt with summary-level domestic criminal charges and all relevant family cases for one family, including divorce, separation, child contact, residency and parental responsibilities. The court did not hear trials: if a case was not resolved it was returned to the criminal court for the trial to be heard.

The IDVC used a multi-actor collaborative approach that aimed for improved victim safety, access to services for victims and increased offender accountability via community resources. Judge Suntag aimed to institutionalise procedural fairness in the court's approach to domestic abuse cases. Immediacy of response was also emphasised in the IDVC's objectives.[15] Its main objectives were:

  • "protection and safety for victims and their children as well as other family members"
  • "providing immediate access to community services and resources for victims, their children, and offenders" and
  • "providing an immediate and effective response to non-compliance with court orders by offenders".[16]

In New York state, 42 integrated courts were established by 2016.[17] The courts have jurisdiction over civil family proceedings (including divorce, property disputes and child protection) and criminal domestic violence cases. Domestic violence criminal cases are automatically diverted into the IDVC system. By contrast to the Vermont Courts, the New York courts have the capacity to hear contested criminal trials.

The first New York courts were established between 2001 and 2003 without a clear or communal remit. As a result those eleven courts "adapted the model to local conditions".[18] In 2003 a document, the 'Integrated Domestic Violence Court Model Court Components' was developed to guide new IDVCs in their work (the list of components is detailed in appendix 1). Despite the guidance - aimed at making the IDVCs more uniform[19] - the high level of judicial discretion afforded to the county courts in New York resulted in significant differences between the IDVCs. A passage from the literature explains the inconsistencies:

"Over time, courts might choose to expand these criteria (e.g., accepting couples with a family court case and a matrimonial case and no criminal domestic violence case). In some jurisdictions that anticipated large caseloads, the criteria may have been even more restrictive at start-up, usually limiting admission to couples with both a domestic violence case in criminal court and a family offense case (which involves a petition for a protective order) in family court. Once the court has confirmed that a given family meets its case eligibility requirements, the court may identify and accept additional family cases - most commonly custody and visitation and paternity, but often neglect and abuse, and cases related to juveniles. These may even extend to other family members and partners: for instance, a couple may have qualifying criminal and family court cases, while one partner has another family court case with a former spouse".[20]

The New York IDVCs were the first established courts, and judges from both the Toronto and Vermont courts separately visited New York during their planning stages. Interviews with key informants, however, provided that while there was definite learning from observation of the New York IDVC, the model did not 'fit' for local jurisdictions. This was due to a combination of issues, namely differences in legal process and in the motivation for introduction of the IDAC.

Other 'one family, one judge' problem-solving court models

Other courts identified in this review were categorised as 'one family, one judge' problem-solving courts. These types of court are aimed at employing the law therapeutically[21] , often including mental health or substance abuse treatment as sentencing options.[22] Domestic abuse is a possible but not compulsory criteria for a case's entry into these courts. These models can be found across numerous jurisdictions internationally and incorporate various multijurisdictional community, procedural and/or therapeutic justice approaches to issues such as drug and alcohol abuse, brain injury, mental health, homelessness and financial hardship. The approach of these courts tends to emphasise offender rehabilitation and aims to slow "the 'revolving door' of crime and punishment by addressing the reasons or conditions that contribute to offending behaviour" (NJC 2018b).

Due to the high number and variance between courts, IDACs that included wider problem-solving and/or procedural/therapeutic justice approaches were excluded from the analysis. The models examined are therefore limited to: Ontario, New York, Vermont and Croydon, with the limitations of reliable comparison highlighted and recognised.


Contact

Email: kirsty.campbell@gov.scot