Olivia’s Q&A feature, originally published in Today’s Family Lawyer on 20 September 2022, can be found here.
In conversation with Olivia Piercy: an appraisal of family law, including the “smoke and mirrors” which surround domestic abuse
Olivia Piercy, family lawyer and newly announced Partner at Hunters Law (Hunters), talks all things domestic abuse, Mr Justice Cobb’s Private Law Working Group, the areas of family law undergoing transformation, and more.
Olivia, to begin with, could you tell us about your career path and what led you to Hunters?
I trained at central London family law firm Dawson Cornwell. There was a brilliant lawyer there – Anne-Marie Hutchinson OBE, QC (Hon). She was something of a child abduction genius and effectively created much of the law on international child abduction, forced marriage, honour-based violence, and other cutting edge international family law issues.
By training under Anne-Marie, most of my practice was in the High Court right from the beginning of my career. A lot of my work was legally aided and involved a cross border element. That period really set me on a path of complex, international matters, but it also taught me that you can be a really good lawyer in the City whilst also caring about vulnerable people – that care element has to be at the heart of your practice.
I also trained under John Cornwell, the founder of Dawson Cornwell and co-founder of Resolution (then the SFLA). John taught me the value of taking a polite, constructive, family focused approach to litigating and corresponding with opponents. Both John and Anne-Marie have since sadly passed away, but they gave me a truly great training.
Later on, I took two years out of private practice to work at a charity called Rights of Women as a solicitor and legal officer, in order to learn more about the dynamics of coercive control, which I found to be pervasive in all areas of family law and in all walks of life. At the same time I undertook a Masters degree in human rights with a focus on gender violence.
My particular interest in domestic abuse and how it impacts people’s experience in the family courts ultimately led me back into private practice.
I joined the family department at Bindmans and ran a caseload of matters involving cross border and jurisdictional issues, child protection, domestic abuse, forced marriage and other interesting issues. I also headed up their financial remedy work and set up a surrogacy and fertility law team within the department.
I particularly enjoy high net worth financial remedies work and have now joined Hunters with a view to growing my practice in that area. At the same time I hope that I can build on Hunters’ children law offering, bringing my expertise in complex private law and cross border children work to the team. Expertise in domestic abuse are not something generally prioritised in HNW family law teams, but domestic abuse is pervasive in all walks of life and an understanding of the dynamics of coercive control is something all family law teams should now be able to offer.
Your practice is incredibly broad – you have experience of almost every area of family law, which is quite rare. Which area would you say has changed the most during your career?
There are almost entirely new areas law that have developed during my career. Surrogacy has changed dramatically whilst I’ve been working, as has child abduction, forced marriage, and the law relating to stranded spouses.
Probably the most significant shift for me, however, and the one that affects the most people and the most practitioners as well, is one that has not necessarily been effected by any particular statute or reported case– it is the shift in the role of fathers in their children’s lives post-separation.
When I started working in family law, the usual outcome of a separationwhere there weren’t any safeguarding issues would be for the children to live with Mum, and stay with Dad every other weekend and Wednesday night.
That was standard. Yet, now the starting point, more often than not, is for kids to be sharing their time between their parents 50:50 – and that is huge. It affects nearly every case where children are involved. There’s a profound attitude change, in the courts, within cafcass, amongst social workers, lawyers and within society.
On the opposite end of the scale, which area would you say hasn’t changed enough? Where does the intransigence lie?
I’d definitely say TOLATA. We still do not have an adequate legal framework to help unmarried cohabiting couples to fairly and responsibly settle their finances. People aren’t getting married, they can’t afford weddings or they simply don’t have the inclination, so they’re often left high and dry when they separate. There is no such a thing as a common law marriage, but in so many cases, child maintenance, and whatever provision can be sought under TOLATA 1996 is simply insufficient to meet people’s needs
There were over 800,000 reports of domestic abuse in the year to March 2021. Yet, the number of referrals to the CPS are going down. What would you say is behind this inability to get justice for domestic abuse victims, and as somebody who sits on the Domestic Abuse Committee at Resolution, what change would you like to see in the area?
The only changes you see are ones that don’t cost money. There’s been a huge raft of legislation over the last few years and that’s great. For example, the criminalisation of forced marriage, the additional criminal offences relating to FGM, the Domestic Abuse Act, to name just a few.
But if you’re creating this legislation whilst at the same time haemorrhaging funding for domestic abuse refuges, Independent Domestic Abuse Advocates, rape crisis centres, counselling, affordable housing and benefits i.e. all of the resources that people need to actually escape domestic abuse situations – victims of domestic abuse and their children have no choice but to stay put because they do not have the means to remove themselves to safety.
If governments aren’t funding these things, and aren’t funding the police adequately, then all the new legislation is just smoke and mirrors to hide what’s really going on.
On top of this, the cuts and chronic underfunding of legal aid have also been devastating to victims and survivors of domestic abuse. Many people experiencing domestic abuse are unable to provide the acceptable evidence of abuse to secure legal aid. A large proportion of those who are eligible for legal aid are unable to find a lawyer willing or able to work at the prescribed rates. The vast majority of litigants, whether victims of abuse or otherwise, are ineligible for legal aid because they do not satisfy an irresponsibly stringent means test, but at the same time cannot possibly afford to pay privately for legal representation.
The gap between those who are financially eligible for legal aid and those able to pay fees privately – which are generally at least £10,000 if you’re going to court (but can cost hundreds of thousands) – is vast.
Most people fall into that gap, and where there is abuse it means victims having to represent themselves in court against their perpetrators.
Underpinning all these issues is the fact that domestic abuse is not being prioritised in terms of addressing the root causes. We focus on throwing resources at victims, but nothing is being done to treat perpetrators or to stop children from growing up to become perpetrators. We as a society should be asking: “where are we going wrong?”
The UK has signed the Istanbul Convention on domestic abuse – It is the most comprehensive legal framework that exists to tackle violence against women and girls and I was involved in a campaign to get it ratified. Through signing the Istanbul Convention the UK has committed to educating children in schools, running awareness campaigns, training professionals, setting up treatment programmes for perpetrators, as well as funding domestic abuse shelters, advice lines and services. The UK has not complied with its obligations under this convention and creating more and more criminal offences is not a substitute.
You’re part of Mr Justice Cobb’s Private Law Working Group. What does the group do, and what led you to your involvement?
The family court system is broken. There are not sufficient resources to deal with the number of private law children cases going through it – this is exacerbated by the fact that litigants are having to represent themselves without legal advice.
The resources – judges, Cafcass officers etc. – haven’t increased, so the courts are overwhelmed. A person applying to resolve an urgent issue, for example a parent seeking contact with their child, will more often than not find the first hearing is listed as far as seven months later.
Mr Justice Cobb formed a working group of interested parties to put forward proposals for how the system could be overhauled, in order to make it more efficient and effective. The working party comprised judges, barristers, mediators, academics, and myself as a solicitor.
The group produced a report, the key outcome of which was to look at ways that potential litigants could be funnelled away from the family court, when they don’t necessarily need judicial intervention and could be better served by assistance in reaching agreement another way.
A new system, informed by the report, is being piloted now. A change is clearly needed, but I do have concerns that some cases involving domestic abuse may not get picked up and victims will be left to mediate with their perpetrators where it may not be appropriate or safe. If the new system is to be rolled out nationally, it will be more important than ever for lawyers, cafcass and other professionals to have a really nuanced understanding and awareness of the subtle dynamics of coercive control.