As of 6th April 2023, new practice guidance has been issued in relation to the attendance of independent domestic abuse advisors (IDVA) and independent sexual violence advisors (ISVA) in relation to family proceedings. As a general principle an IDVA or ISVA will be permitted to support a victim at a court hearing in their family law case.

What is an IDVA/ISVA and what can they offer?

An IDVA or an ISVA is able to offer support, advice and help to litigants at all levels of the family court in relation to family proceedings before and after court hearings. Litigants may be adults or children party to family proceedings and who have experienced domestic abuse (in the case of an IDVA) or rape and/or sexual assault (in the case of an ISVA).

Examples of what an IDVA or ISVA can do to offer support to litigants, include, but are not limited to:

  • Offering practical, emotional, or moral support
  • Offering assistance or support when engaging with the court process, and without out of court discussions
  • Support in dealing with authorities and other support services

The litigant wishing to receive such support must notify the Judge of either their IDVA or ISVA’s name and the details of their organisation. Assurance must also be given of the IDVA or ISVA’s understanding of the confidentiality of proceedings.

What is an IDVA or ISVA prohibited from doing?

Importantly, whilst an IDVA or an ISVA can offer a litigant support during court proceedings, they are not legal representatives or a McKenzie Friend, and consequently, have no right to act as an advocate or carry out the conduct of the litigation. Specifically, they are prohibited from:

  • Acting as a legal representative or a McKenzie Friend
  • Acting as the litigant’s agent during proceedings
  • Managing the litigant’s case outside of court (such as, signing court documents)
  • Addressing the court (such as, making oral submissions)

It is a criminal offence for an IDVA or ISVA to conduct the litigation or to exercise a right of audience. Notably, the High Court can impose a civil restraint order on an IDVA or ISVA should they repeatedly act in a way that undermines the efficient administration of justice.

Can the Court refuse support from an IDVA or ISVA?

The Court retains the power to refuse permission for an IDVA or ISVA to attend a hearing for support where there are grounds to believe that it is not in the interests of justice for them to attend or continue to attend. The onus is on the court or the objecting party to provide sufficient reasons as to why the IDVA or ISVA should be prohibited from attending the hearing/s. Circumstances that may be relied upon by the court to refuse an IDVA or ISVA to attend hearing/s may include, but are not limited to:

  • Where the support from the IDVA or ISVA in the court room is being provided for an improper purpose
  • Where the support in the court room is unreasonable
  • Where the IDVA or ISVA is directly, or indirectly, conducting the litigation
  • Where the court suspects that the IDVA or ISVA does not fully understand the duty of confidentiality

As refusing IDVA or ISVA support to the litigant during hearings triggers the right to a fair trial, the matter should be carefully considered by the court and objections should be clearly explained. The litigant must be given a reasonable opportunity to assert why IDVA or ISVA support and attendance at hearings should continue.

The following factors should not be relied upon to justify the court refusal of IDVA or ISVA support during hearing/s:

  • If the case or application is considered straightforward
  • The litigation appears capable of conducting the case without support
  • The litigant is unrepresented through choice
  • The other party is unrepresented
  • The IDVA or ISVA belongs to an organisation that promoted a particular cause
  • Proceedings and confidential and court papers contain sensitive information regarding family affairs

Should the court take the decision to restrict a litigant’s right to seek support from an IDVA or ISVA during hearing/s, a short judgment must be given with their reasons. A litigant retains the right to seek permission to appeal this decision.

We can help

If you are a victim of domestic abuse, please do not hesitate to get in touch so that we can offer you the help and support that you deserve.

Here at Ringrose Law, we offer a 24/7 Domestic Abuse Helpline.

To access this support, give us a call or text on 07739 748675 or email

 

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