A crisis we just can’t seem to fix

Since their inception about 50 years ago, family courts around the world have been subject to the nearly universal criticism that they lack expert understandings of domestic violence, including courts in New Zealand.

In the early 1990s, inquiries into the New Zealand Family Court’s treatment of women and children who experienced violence concluded that court personnel harboured myths and misunderstandings about the dynamics of domestic violence, failed to identify domestic violence in all forms, (particularly non-physical forms like coercion, control, stalking, harassment, psychological abuse, and financial exploitation), and failed to see the connection between domestic violence and child safety. More than 30 years later, countless family violence murders, inquiries, and legislative reforms have not changed the court’s dangerous practice.

The problem is not legislation. Over the past several decades, international domestic violence legislation has improved. The Family Violence Act 2018 is a good example, notably section 4 which contains principles that articulate a sophisticated and evidence-based understanding of family violence and the importance of keeping victims safe from re-victimisation. Unfortunately, these principles are not always followed by the courts; women and children only have rights to safety largely on paper.

There has been increasing recognition internationally of the need for mandatory domestic violence training for family court personnel. Human-rights entities at the UN have led the way by suggesting and in some cases requiring individual countries with poor responses to domestic violence to oblige their judges, lawyers, and custody evaluators to undergo evidence-based training in domestic violence and adopt best practices for victim safety.

In Canada, a bill called 'Keira’s Law' was introduced in 2022, which called for more education and training about coercive control and the relationship between domestic violence and child safety. Keira’s Law was named after Keira Kagan, whose father murdered her during court-ordered contact despite her mother’s pleas that she was not safe in his care because of his history of violence against her.

In the United States, family law is the subject matter of state law. The federal government cannot mandate domestic violence training for state judges, but it can incentivise state legislatures to do so. In 2022, Congress reauthorised the Violence Against Women Act and added a provision known as 'Kayden’s Law'. Kayden’s Law was named after yet another child killed in the court-ordered care of a father despite his history of domestic violence against her mother and her mother’s unheard pleas for protection to the family court.

Kayden’s Law set aside $25 million for state legislatures to update their custody laws to make it harder for judges to place children in the unsupervised care of perpetrators of violence and mandate domestic violence training for family court judges. All state legislatures had to do was mandate the training, and the federal government would pay for it.

What happened next was disappointing. Professional organisations representing judges began a whisper campaign in state capitals, telling legislators that mandated training would violate the constitutional principles of separation of powers and judicial independence. The judges did not make formal, public submissions, which could be scrutinised and challenged. Instead, they used their perceived authority and insider access to legislators to privately raise the spectre of constitutional crisis. Sadly, in many cases, it worked. Legislators spooked by the prospect of damaging democracy (or angering the judiciary) withdrew their support for training mandates.

I was a professor of constitutional law in the United States for a decade. I believe deeply in the values of separation of powers and judicial independence. Last year, a coordinated international rescue effort had to airlift female judges out of Afghanistan to spare them from Taliban reprisals. Last week, in Israel, the Knesset advanced legislation authorising the Knesset to override constitutional rulings. The seriousness of these threats is why we should not fling about the mantra of 'judicial independence' in frivolous and self-serving contexts in which it does not apply, or allow our commitment to judicial independence to be watered down by judges looking to get out of unwanted homework.

How does this relate to the state of our family courts in New Zealand? In November 2021, the Government launched Te Aorerekura, the national strategy to eliminate family violence and sexual violence. It included an action plan comprising 40 implementation steps between December 2021 - December 2023.

Disappointingly, the plan included only two steps pertinent to the Family Court. They involved building the court’s workforce capability (Action 15) and developing new practice guidelines for supporting participants in court proceedings (Action 27).

It promised that, by December 2022, the Government would develop a “workforce training package” developed with the input of domestic violence survivors. The promised training package was meant for “Ministry of Justice staff, the legal profession, and other professionals in court to increase skills and capability for engaging with people impacted by violence”.

In December 2022, Te Puna Aonui, the Government’s multi-agency venture responsible for implementing Te Aorerekura, indicated that the training and practice guidelines had been developed and ready to start in 2023 but that the next steps “depend on judicial and other decisions”.

In February, I asked Te Puna Aonui about progress. I was given a reference to “issues of judicial independence” and directed to staff at the Ministry of Justice for a more thorough explanation. So I emailed ministry staff to ask whether training had begun and what decisions were necessary to implement the practice guidelines. I’ve not yet received a response.

Mandating training for judges to ensure they have the evidence-based expertise to do their jobs appropriately does not threaten judicial independence. It enhances it. One reason populist movements have been effective in attacking judicial independence is because the public increasingly suspect that judges are politically connected, self-serving insiders who prop up systems of injustice rather than equalising the power imbalances eroding the commitment to constitutional democracy around the world.

This is a particularly dangerous time for judges to insist on their right to do their jobs without accountability. Judicial legitimacy comes from a competent, representative, responsive, and transparent judiciary.

The question, in the US and here is: what is stopping judges wanting to participate in expert-led domestic violence training or adopting evidence-based best practice guidelines?

They know they have been criticised for their lack of understanding of domestic violence and for failing to protect victimised parents and their children. If judges don’t want governments to mandate that they undertake domestic violence training, why don’t they seek training independently? The training is only 'mandatory' because their refusal to self-reform has forced the issue.

In the meantime, as this faux constitutional crisis roils on, women and children experiencing violence continue to receive uninformed and unsafe responses from family courts, and New Zealand continues to have the highest rates of domestic violence and child abuse in the developed world. That is a true constitutional crisis.