When Women's Rights are Not Human Rights – the Non‐ Performativity of the Human Rights of Victims of Domestic Abuse within English Family Law
| Date | 01 November 2019 |
| Published date | 01 November 2019 |
| Author | Shazia Choudhry |
| DOI | http://doi.org/10.1111/1468-2230.12474 |
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Modern Law Review
DOI: 10.1111/1468-2230.12474
When Women’s Rights are Not Human Rights – the
Non- Performativity of the Human Rights of Victims
of Domestic Abuse within English Family Law
Shazia Choudhry∗
A large proportion of child contact cases in England take place within a context of domestic abuse
and significant risks to victims and their childrenq associated with post separation contact. The
legal response has largely been inadequate and the potential impact of human rights law by the
family courts has yet to be fully explored. This paper analyses an exploratory empirical research
project undertaken in 2017/2018 with Women’s Aid England and 72 victims of domestic abuse
regarding their experiences of human rights law in the family courts. The results, theorised
through the lens of performativity and against the context of international human rights law,
reveal a high level of non- performativity with respect to the human rights of the par ticipants.
The paper concludes with recommendations and the implications the analysis holds for feminist
organisations if they are to fully realise the human rights of the victims of domestic abuse.
INTRODUCTION
There are a number of definitions of domestic abuse in use across a variety
of legal and policy contexts. Before embarking on any analysis concerning
domestic abuse it is therefore important to set out which definition is to be
employed. In England and Wales, there is currently no statutory definition
of domestic violence,1however, there is a non-statutory cross-government
definition. It is:
any incident or pattern of incidents of controlling, coercive or threatening be-
haviour, violence or abuse between those aged 16 or over who are or have been
intimate partners or family members regardless of gender or sexuality. This can
∗Professor of Law, Department of Law, Queen Mary University of London. Sincere thanks to the
anonymous reviewers and to Professor Rosemary Hunter for their extremely helpful comments on
an earlier draft of this article.
1 Although the Government has said that it will include one in the forthcoming Domestic
Violence and Abuse Bill to be introduced in the 2017-2019 session. See HM Government,Tr a n s -
forming the Response to Domestic Abuse,Government Consultation at https://consult.justice.gov.uk/
homeoffice-moj/domestic-abuse-consultation-sign-version/supporting_documents/Transform
ing%20the%20response%20to%20domestic%20abuse.pdf (unless otherwise stated, all URLs
were last accessed 4 January 2019). Unlike the existing definition it would cover the concept of
‘economic abuse’ (including access to basic resources like food and clothing) rather than simply
financial abuse.
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Shazia Choudhry
encompass but is not limited to the following types of abuse: psychological; phys-
ical; sexual; financial; emotional.2
Controlling behaviour is further defined as ‘a range of acts designed to make a
person subordinate and/or dependent by isolating them from sources of sup-
port, exploiting their resources and capacities for personal gain, depriving them
of the means needed for independence, resistance and escape and regulating
their everyday behaviour.’ Whereas coercive behaviour is ‘an act or a pattern
of acts of assault, threats, humiliation and intimidation or other abuse that is
used to harm, punish, or frighten their victim.’
It is this definition that will be utilised throughout this paper as it can be
treated as broadly synonymous with the abuse explored in the research. Al-
though it is difficult to obtain reliable prevalence data on domestic abuse3in
2018, official statistics recorded that 26 per cent of women had experienced
some form of domestic abuse since the age of 164and on average two women
are killed by their partner or ex-partner every week in England and Wales.5
In addition, research has also demonstrated that a large proportion (at least
50 per cent)6of child contact cases7in England and Wales take place within a
context of allegations of domestic abuse. When placed against evidence of the
significant risks to victims and their children associated with post separation
contact, including an alarming number of homicides,8the need for the legal
system to make the safest decision when considering such applications becomes
2 The definition was extended by the Home Office in March 2013 to include youngpeople aged
16 to 17 and coercive or controlling behavior. See Home Office, Cross-Government definition
of domestic violence: a consultation – summary of responses, September 2012, 19 at https://assets.
publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/157800/
domestic-violence-definition.pdf.
3 For example, ONS adjusts crime data to reduce the risk of a small number of cases involving
multiple attacks skewing overall crime trends, so the number of times that any person can be
counted as a victim of crime is capped at five. Professor Sylvia Walby, Lancaster University,
conducted research which indicated that, when the cap is removed, violence against women
by intimate partners rises by 70% and violence against women by acquaintances by 100%.
See https://theconversation.com/official-statistics-mask-extent-of-domestic-violence-in-the-
uk-43087.
4 Office for National Statistics, Domestic abuse: findings from the Crime Survey for England and Wales:
year ending March 2017 (2018).
5 Office for National Statistics, Homicide in England and Wales: year ending March 2017 (2018).
6 See, for example, Cafcass & Women’s Aid, Allegations of domestic abuse in child contact cases (2017)
at https://www.cafcass.gov.uk/2017/07/25/cafcass-womens-aid-collaborate-domestic-abuse-
research/?highlight=womens%20aid; M. Harding and A. Newnham, How do County
Courts share the care of children between parents? Full report Nuffield Foundation, 2015 at
http://www.nuffieldfoundation.org/sites/default/files/files/Full%20report.pdf.
7 Termed ‘child arrangements cases’ in England and Wales and defined as orders ‘regulating
arrangements relating to . .. with whom [and when] a child is to live, spend time or otherwise
have contact . . . with any person’ (Children Act 1989, s 8). The Children Act 1989, s 1 provides
that, when a court is considering making an order, the child’s welfare must be the paramount
consideration. Courts should also apply, in contested applications, the ‘welfarechecklist’ set out
in the Children Act 1989, s 1(3) which requires courts to ‘have regard in particular’ to a range
of factors including the child’s wishes and feelings, their characteristics and needs, the capability
of the parents in meeting those needs, and any harm which the child has suffered or is at risk of
suffering.
8 See H. Saunders, Twenty-nine Child Homicides: Lessons still to be learnt on domestic violence and child
protection (Bristol: Women’s Aid Federation of England, 2004); Women’s Aid, Nineteen Child
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(2019) 82(6) MLR 1072–1106 1073
Victims of Domestic Abuse within English Family Law
apparent. Unfortunately, as the first section of this paper will demonstrate, the
legal response to this issue has largely been inadequate. Furthermore, viewing
the issue from the perspective of human rights has much to offer but it is clear
that the impact of the Human Rights Act 1998 (HRA) for victims in the
family courts has yet to be fully explored within the reported case law. This is
surprising, g iven the significant developments in human rights law and practice
at the regional and international level with regard to victims of domestic abuse.
In order to understand why, this paper will, in the second section, analyse the
results of an exploratory empirical research project undertaken in conjunction
with Women’s Aid England with victims of domestic abuse regarding their
experiences and perceptions of the use of human rights in the family courts
and provides a rare opportunity, absent to date from the literature, to hear their
voices, as intended recipients of a number of developments in international
human rights law on violence against women (VAW). The methodology em-
ployed in the research project will be fully outlined before moving on to analyse
the findings of the project through the lens of performativity; a concept which
enables us to consider the political and social discursive forces that construct
and normalise legal practice and to consider the lived experiences of the use
of human rights of the women victims in the family courts. Performativity can
thus provide an illuminating and useful method to assess the extent to which the
regional and international recognition of the human rights of victims within
this context have been translated from paper to reality. The final section will
conclude with recommendations for future research and reform.
THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN
RIGHTS: WOMEN VICTIMS’ EXPERIENCES IN APPLICATIONS FOR
CONTACT IN THE FAMILY COURTS IN ENGLAND AND WALES
The long term effects of domestic abuse on victims and their children are sig-
nificant and well documented.9As outlined above, a large proportion (at least
Homicides: What must change so children are put first in child contact arrangements and the family courts
(Bristol: Women’s Aid, 2016) and Women’s Aid, Child First: a call to action one year on (Bristol:
Women’s Aid, 2017). In 2016 Women’s Aid also launched its Child First campaign ‘to stop
avoidable child deaths as a resultof unsafe child contact with dangerous perpetrators of domestic
violence.’ These concerns were investigatedby the All Party Parliamentary Group on Domestic
Violence after which they made further recommendations for reform. All-Party Parliamentary
Group on Domestic Violence, Domestic Abuse, Child Contact and the Family Courts (2016) at
https://www.womensaid.org.uk/appg-reports/.
9 A series of meta-analyses of research studies examining the effects of children’s experience of
domestic violence have indicated that exposure is related to a range of subsequent emotional,
behavioural and social problems. See, amongst others, J. Devaney, ‘Research Review: The
Impact of Domestic Violence on Children’ 12 (2015) Irish Probation Journal 79. In adult victims
there is an increased risk of depression and suicide, see, amongst others: K.M. Devries and
others, ‘Intimate Partner Violence and Incident Depressive Symptoms and Suicide Attempts: A
Systematic Review of Longitudinal Studies’ (2013) PLOS Medicine and K. Alejo, ‘Long-Term
Physical and Mental Health Effects of Domestic Violence’ (2014) 2 Themis: Research Journal of
Justice Studies and Forensic Science 1, Article 5.
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(2019) 82(6) MLR 1072–1106
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