This is a guest post from Bob Greig, Co Chair of Only Mums and Only Dads and co author of 101 Questions Answered About Separating With Children (links below). Bob tweets as @OnlyDads.
I have been asked to write a few words on the Ministry of Justice (MOJ) public call for evidence and the appointment of their Panel. The Panel is to gather evidence on how the family courts protect children and parents in cases of domestic abuse.
The MOJ website has now named the Panel members and explains that they are representatives from organisations from across family justice including the Judiciary, academia, social care, policy officials and third sector organisations.
The Panel members can be seen here.
Let me begin by summarising what I read from the @onlydads Twitter followers. If you let it, Twitter can do your thinking for you! Within 24 hours it was informing me that:
a. Apart from Mr Justice Cobb, the line-up is all female and will therefore be biased against men.
b. The whole review has only been set up as a knee-jerk reaction to the Victoria Derbyshire BBC programme, which was itself one-sided and clearly biased against men and to add insult to injury, three months isn’t anywhere near long enough to undertake a proper review.
c. The Panel lacks representation from charities or organisations working with male victims of domestic abuse, which will mean any recommendations made by the Panel will be ultimately be skewed/biased towards women.
d. There are no jobbing solicitors/ barristers on the Panel and this is an oversight as those at the “coalface” really know what is going on.
In short, news of this review and the appointment of the Panel members has been met by many with a degree of negativity. That said, we remain optimistic that positive things will come from this review. I’ll explain my reasoning – but before I do, and by way of introduction to those who don’t know us, OnlyMums & OnlyDads is a registered not for profit organisation that (as the name suggests) deals with both mums and dads. We run a free email exchange and web chat, and while we don’t deal with whole cases from beginning to end, we can and do offer parents that initial bit of signposting to help sort out their issue(s). We rely heavily on our Family Law Panel mediators and solicitors, many of whom are accredited DV specialists, to help with the follow on support and direction. Domestic abuse as a named issue comes up in roughly 20% of all cases we deal with.
Our rapid in and out signposting service has weaknesses as well as strengths. While we never get to see the whole story or how it ends, we have, over the years, offered initial direction on over 15,000 situations. For the context of this review we have a rare insight into the problems parents are facing.
The oft repeated ones are:
- Being accused of abuse and not knowing how to defend themselves in court.
- One parent taking unilateral action to stop the other parent from seeing their child(ren) and that parent, seeing the harm it is doing to their children, not knowing where to go to resolve matters and/or the courts taking many months to help reinstate contact.
- Unresolved parental conflict going on and on and the re-igniting of these past conflicts when one parent finds a new partner.
- Situations where our exchanges have left us feeling that severe domestic abuse is or has taken place leaving the victim in a shell shock like condition, not knowing where to go for help and stuck in a state of real confusion.
What are the reasons for optimism?
The MOJ have declared that this review “will build a more detailed understanding of any harm caused during or following proceedings in the family court”, and the fact that they have included academics who will surely be wanting further research and evidence before drawing conclusions has to be a positive. Of course, not much will change in three months but we hope it will set the right course for ongoing reform.
The fact that we have a senior judge on the Panel as well as academics gives confidence that balance will be brought to the work. The subject matter is so sensitive and it’s easy to see that some of the campaigning organisations may become a little myopic and miss the bigger picture. It’s important that the review has this counter-balance in place.
Thirdly, this review gives the opportunity to review and assess how the Children Act and the Courts and professionals who work with it can better prevent harm to children. I think all of us who work with separating parents will know that it is children that end up paying the price of parental conflict. The work of this Panel is vitally important and it’s positive that this review has been launched.
From my perspective there are a number of key questions that need further research and action. These include:
- What harm is being done to children by suddenly and un-justifiably cutting off contact with one parent and how is that measured? How many children are affected, and how can family courts reduce the time it takes stop this harm to children (and the other parent) escalating?
- What additional training is needed for judges and legal professionals to better understand coercive control and the way some parents deploy such control in the family law arena?
- What practical steps can be taken to support parents having to come to court with an abusive ex-partner?
The full list of questions that this review can begin to answer goes on and on; these are a few that we hear parents asking for.
I want to end by suggesting that there is something we can all do to support the Panel’s work. It’s about the way we hold our public and on-line discourse. I mentioned above that this is a sensitive subject and some firm positions are held. But that shouldn’t stop us all being polite and constructive. Commissioning further research, drilling down into the facts and data…I think we all have a role to play if we are to bring the best out of this opportunity.
I wish all the Panel members and especially the support staff well. I started my working life in administration and know that very often the best work can be done behind the scenes.
OnlyMums & OnlyDads compiled and edited “101 Questions Answered About Separating With Children” (Bath Publishing). It was published in January 2019.
PS : You can read other posts on this topic by Charlotte Proudman here and our chair here.
Feature pic : listen by Jay Morrison on Flickr (creative commons – thanks!)
You need to check the background of these panel members. One of them is involved in the “feminist judgement project” which re-writes judgements from a “feminist” point of view. Mr. Justice Stephen Cobb used to be a trustee of Gingerbread and when he drafted the latest version of PD12J tried to removed the presumption of involvement of a parent when there are allegations of domestic abuse. That presumption was brought in by Parliament in The Children and Families Act 2014, but Mr. Justice Cobb seems to think he is above parliament.
Brian, we are struggling to see why being a member of the feminist judgment project (which we recall the President of the Supreme Court was also involved in) or a trustee of Gingerbread would disqualify any panel member. Cobb J didn’t try to remove the presumption, he made a recommendation for the revision of PD12J as he was asked to do by the President of the family Division and that bit which summarised the presumption (and probably was not consistent with the terms of the legislation) was not incorporated into the revised PD.
A remarkable piece from OnlyDads reassuring us that ‘everything will be well in the best of all possible worlds’
Mr Greig states – while spending much of the post setting out the work of Only Dads – that:
‘The fact that we have a senior judge on the Panel as well as academics gives confidence that balance will be brought to the work.’
That Senior Judge is Cobb J. Anyone who has follwed the Judge’s career will be likely to have rather less confidence than Mr Greig. Formerly a Trustee of the ‘single parent charity’ Gingerbread, Cobb J is the architect of the Child Arrangement programme that overturned the will of Parliament in the 2014 legislation to abolish the Residence / Contact order framework to replace it with a single Child Arrangement Order that removed the damaging perception that one parent had a higher status when granted a Residence Order. Cobb J brought in the concept of the ‘Lives With’ order that we see effectively carrying forward the old framework.
Then in 2017 he was charged with reconsidering PD12J on DV. His initial draft here https://www.judiciary.uk/wp-content/uploads/2017/01/PD12J-child-arrangement-domestic-violence-and-harm-report-and-revision.pdf confirms that he met with Women’s Aid, Rights of Women and Prof Rosemary Hunter amongst others – all of whom would be likely to tell him one side of the story. In his initial draft he also sought to again defeat the Will of Parliament by seeking to set aside the presumption of involvement incorporated into the 2014 Children & Families Act. His draft s4 stated : ‘Where the involvement of a parent in a child’s life would put the child or other
parent at risk of suffering harm arising from domestic violence or abuse,the presumption in section 1(2A) of the Children Act 1989 shall not apply.’ I made the point to the President that a PD could not set aside statute law. Thankfully he agreed.
You can read more about the unsuitability of Cobb J here [edited] https://www.stowefamilylaw.co.uk/blog/2017/02/03/are-the-best-interests-of-the-child-no-longer-paramount/
Paul,
We’ve slightly edited your comment – it included a broken link to an article on the FNF website which we couldn’t locate so we’ve removed it.
Your comment isn’t quite accurate in a number of respects :
1 Cobb didn’t override the will of Parliament by bringing in a ‘lives with’ order – a lives with order is part of the act as amended by the 2014 legislation. It has a different legal significance than a ‘spends time with’ order.
2 Cobb’s 2017 proposed rework of PD12J didn’t attempt to set aside the presumption in s1(2A) CA, but it did summarise it in a way that didn’t ultimately make it into the final version (possibly because it was inconsistent with the wording chosen by parliament).
The TP Team
Thanks Lucy for pointing out the broken link on our website (not the FNF one).
I dont agree with your view that s12(3) requires the inclusion in the CAP of the ‘Lives with’ and ‘Spends time with’ provision in template Orders. It is however useful to hear that as we’ll need to ensure that any lobbying about new Family Justice legislation clarifies this.
Unsurprisingly I also disagree with your view that Cobb J’s first draft didnt attempt to set aside the presumption of involvement. We made that point to the President and I believe he accepted that as it was significantly watered down in the final form.
regards
Paul
Paul, thank you for your comments. I want to make it clear to any readers not familiar with the work of Leibniz though, that I didn’t say or imply ‘everything will be well in the best of all possible worlds’.
Rather, what I tried to do, is set out some of the challenges that I think the Panel need to face to make the most out of this review opportunity. I also set out my belief that the Panel are not going to be able to do everything in the limited time frame available and more work, research, and data analysis will be called for.
Regards. Bob
Paul Apreda should be aware of a fact of life. Statutes will always trump practice directions. In any event, as the TP states, the final draft of PD12J put paid to any confusion. The presumption sought by WA was actually original contained in the Sturge and Glasser Report in 2000. The court of appeal, in Re L (A Child), Re V (A Child), Re H (A Child) (Contact: Domestic Violence) [2001] Fam 260, accepted the report generally but not the presumption. The court’s final analysis and the court’s attitude to any presumptions has been nothing other than even handed and consistent ever since.
Turning to the wider issues faced by the review, one of the most disappointing, but sadly predictable, aspects of the panel selection is that the calls by Sir James Munby for a truly independent review have been ignored. Sir James called for Independence and to avoid doubt he defined what this meant:
‘Independent …of the judiciary, Whitehall, and of all pressure groups and other third parties. It would be vital that the research be published, whatever the conclusions.’
An overarching, impartial and independent review is now long overdue. As Lucy Reed pointed out in her Times article we are on the cusp of a crisis in confidence and a collapse in public trust in the family courts. Lucy said:
‘A system that operates in private is also highly vulnerable to a collapse in public trust. That vulnerability exists whether or not campaigns and anecdotal accounts are representative or accurate. A collapse is upon us, and we must do something about it.’
The number of dissatisfied and disenfranchised voices claiming corruption, dishonesty and unfairness has never been greater. Paul Maynard has undertaken to ‘ask’ the panel to examine the issue of parental alienation. However, since a member of the panel (Liz Trinder) was recently petitioning the World Health Organisation to consider that:
‘…the inclusion of “parental alienation” anywhere in the ICD-11 diagnostic manual is likely to strengthen existing destructive trends in family courts that are causing children and their primary caregivers harm.’
Any expectations of impartiality or objectivity quickly evaporate. The existing echo chamber occupants all have form. They have been repeating the same mantras for years. Therefore, any recommendations are sadly predictable. Whoever has the loudest voice appears to get their way. In much the same manner the other family court review, chaired by Cobb J, is equally stale and a public farce. The only thing missing is Cobb J running in and out of the doors of the RCJ dressed only in a pair of spotted boxer shorts.
It seems that development of family law policy has been disproportionately influenced by a cabal of academics, charities, lawyers and judges that are usually ‘commissioned’ to report on problems, develop solutions and then go on to monitor and report upon the effectiveness of their own recommendations. The procurement of reports that inform the development of policy and strategy in the family justice system would benefit hugely from competition, transparency and the injection of substantial amounts of new DNA. A monoculture has evolved that needs the urgent introduction of genetic diversity if we are to move away from a defective breed standard. This is why Sir James’ call is the right way forward. Merely parroting the same mistakes as yesterday will ensure that nothing will ever be any different: children and families will continue to be failed and the public distrust in the family justice system will continue to corrode and putrify. There is far more transparency attached to the contracts to empty our bins than there is in developing policy that influences the future lives of our children.
A few more seats at the table and some more hungry mouths to feed will do no more than increase the amount of white noise. It is merely adding unhappily to the cost of something that is already a waste of time and money. It is now time to acknowledge that a different approach is needed and it cannot come a moment too soon. The definition of insanity is doing the same thing over and over again and expecting a different result. A family justice system based upon independent research, evidence and reason represents a far more attractive proposition which will actually benefit our children.
Hi Peter, a small correction to your post: the collective memo to the WHO was not written by Professor Trinder. She is just one of about 300 people who have signed it. There is a version here – although that was when there were fewer signatures. http://umanitoba.ca/centres/resolve/media/WHO-May-13-2019.pdf