This blog post originally appeared as an article in the July issue of Family Law [2019] Fam Law 825.
It can be difficult writing a monthly column for a print publication when things are moving apace in the real world will it still hold currency when the edition lands on people’s desks? This column, written in mid-May, has been particularly tricky - so much is happening on the transparency front, and so much of it difficult to predict. Who knows where we will be, when this column comes to be read.
President’s guidance on applying to lift reporting restrictions
The deadline for responses to the President’s draft guidance on dealing with applications by journalists or legal bloggers to adjust reporting restrictions will have fallen, but probably no conclusions will have been drawn or published by the President. We hope that the draft guidelines will be adopted perhaps expanded to incorporate some guidance regarding access to documents by journalists and legal bloggers (as an aide to understanding rather than for the purposes of publication in most instances). We hope and anticipate that the legal bloggers pilot under PD 36J will have been extended at least for a further 6 months in order to give time for evaluation (as has happened with other comparable pilots such as the open court pilot in the Court of Protection).
Legal blogging
Perhaps too the President will have identified his band of neutral helpers to conduct the transparency review he announced in ‘View 2’. Finding such a neutral and yet sufficiently informed crew will be a tricky task indeed. Everyone has a view on transparency, but few have any answers. As the President has said, more than once, it’s a circle that is difficult to square. We hope, by July, to have formulated some plans for collaborative events and work we can do to help think about what those real life answers might be not for us to push a preconceived idea but to further the sort of balanced and informed debate that might just come up with some practical ways forward rather than talking around and around in circles. Watch this space and keep an eye on our website.
The careful testing out of practical ideas is likely to be crucial to the way forward. The legal bloggers pilot is one such example it is only by trying the thing out that it is really possible to know whether a theoretical worry is a real problem or not. That testing must be responsibly done though, and PD 36J was carefully thought through so as to present limited burdens on stakeholders and minimal risk. We have been working hard on testing out the legal blogging pilot to see what works and what doesn’t, what issues have arisen and how best to participate in a scheme of this sort without undue disruption to the orderly running of proceedings or unnecessary stress on participants. As anticipated (and as with the Court of Protection scheme) the number of people attending under the pilot has been low, and whilst the results don’t have the ‘wow’ factor of a punchy headline in a major newspaper, on every occasion we’ve attended we’ve found something of value to write about and have done so with the approval of those involved. These changes are small but have so much potential to help in improving on what the general public see and understand about family courts.
Campaigns on domestic abuse
The high-profile campaign for a public inquiry into the family court and its handling of domestic abuse matters is a powerful illustration of why we need to look to a range of ways to achieve greater transparency. There is a powerful lobby now pumping compelling material into the public domain that supports a narrative of systemic failure by family courts to protect women and children, and to listen to their accounts of abuse and their predictions of risk. The headlines are lurid, and the focus is upon examples of cases with tragic outcomes including child homicides. Such media attention tends towards heat rather than light, but some coverage has been more balanced and has acknowledged the evidential problems arising from reporting restrictions that hamper any journalistic endeavour to report on these issues. The Victoria Derbyshire show, broadcast on BBC TV on 15 and 16 May, promulgated and prompted some of the more reductive headlines and gave platform to those not troubled by evidential rigour, the show did also acknowledge the unverified nature of its reporting and the difficulties in doing better, and also gave platform to those who speak with a depth of understanding from within the system too, including the former President of the Family Division Sir James Munby.
Whilst almost all of the evidence in support of the need for a reform in the way that family courts ‘do’ domestic abuse work is anecdotal and unverified, much of it does suggest (if not prove) that something has gone wrong, at least in a number of cases. For some years now the accounts of women who say that they have been re-traumatised and placed at risk by a family court that does not hear them and does not understand risk have been at odds with the experiences and accounts of lawyers and professionals working in the system (and of many fathers who say that the notion there is a culture of ‘contact at all costs’ is risible and entirely at odds with their experiences). But none of us can see the bigger picture, whether litigant or professional. Is something going wrong, if so how and why and how often? The only thing that is incontrovertible is that the public are highly concerned about this issue and nobody has the evidence to reassure them.
Research on domestic violence and contact
There is some research on these issues but in the context of a significant shift in how domestic abuse is defined and understood in recent years, and in light of a number of comparatively recent reforms to the system in response to that, the existing research is of limited utility in assessing the current situation. What research exists in England and Wales on mothers’ and children’s experiences is for the most part pre-LASPO.
Fortin, Hunt and Scanlan undertook a large study of children’s experience of court-ordered contact to inform the passing of the Children and Families Act 2014 ([2015] Fam Law 945, August 2015 Jane Fortin ‘Child contact: the longer perspective’). They observed:
‘Respondents’ experiences of contact were sometimes negatively coloured by memories of domestic violence between their parents, their own abuse or the non-resident parent’s excessive drinking or mental illness. For some this meant that contact felt unsafe; for others it affected the way they felt about the non-resident parent, which then impacted on their experience of contact . . . Typically the pre-separation relationship was already poor and post-separation there was often little sense that the non-resident parent was making an effort to make contact a positive experience for the child. Not surprisingly, almost all of these respondents had withdrawn from contact, either permanently or for a period.’
Studies of court files by Hunt and Macleod (Outcomes of applications to court for contact orders after parental separation or divorce (Ministry of Justice, 2008) and Harding and Newnham (‘How do county courts share the care of children between parents?’ [2015] Fam Law 1108) both reported allegations of domestic abuse (or other risky behaviours) in about half of the cases. They noted that these issues were often downplayed by the courts. Hunt and Macleod reported:
‘Of the 143 completed cases in which at least one serious welfare concern was raised 60% ended with staying or unsupervised visiting contact . . . Nonetheless, even where serious concerns were raised the only circumstances in which resident parents were more likely to succeed than to fail were where they were opposing any face to face contact because of alleged domestic violence (55% success rate) or drug abuse (58% success rate).’
Harding and Newnham concluded that:
‘The court’s approach in dealing with allegations of domestic violence is one of risk management. The relationship between the parties or the violent nature of the abusive parent is considered irrelevant to the issue of contact if the risk of violence to the child or the other party can be effectively managed. Courts absolve themselves from undertaking adversarial fact-findings by side-lining the allegations as irrelevant to the issue of contact. This refocussing of the issue allows the risk to be managed by engaging in more problem-solving and child-focussed investigative processes such as a Section 7 report or S16A Risk Assessment rather than adversarial fact findings.’
Gillian Macdonald (Hearing children’s voices? Including children’s perspectives on their experiences of domestic violence in welfare reports prepared for the English courts in private family law proceedings’ Child Abuse & Neglect 65 (2017) pp 113) studied 70 Cafcass reports that had been written in 20062007 and found that children’s voiced experiences of family violence were rarely factored in to the final recommendations, which were based on ways of making contact work, rather than whether it should take place. It was only where older children were so opposed to contact that it was unrealistic to expect it to happen, that their own view affected the recommendation.
A study for the Family Justice Council (R Hunter and A Barnett, Fact-Finding Hearings and the Implementation of the President’s Practice Direction: Residence and Contact Cases: Domestic Violence and Harm, Project report, Family Justice Council, 2013) on the use of fact finding hearings conducted a survey of 623 judge and practitioners. This showed that few felt they had sufficient domestic violence training and that the Practice Direction on fact-finding was being seriously curtailed in some courts. Allegations were being sidelined as not recent or not serious. Some lawyers did say that they had on occasion advised clients not to raise allegations. This led to PD 12J being revised in 2017.
Their one relevant recent study (J Birchall and S Choudhry, What about my right not to be abused?, Women’s Aid 2018), drawn from the responses of 72 women in England who responded to a Women’s Aid survey, and as such were all self-reporting survivors of abuse. This found the extent of risk being tolerated by the family courts so high as to suggest women’s human rights were being abused, and that unsafe child arrangements orders were being made.
Conclusions
We support the call by the President of the Family Division for independent research and think that in light of the high level of public anxiety about this think that some process of investigation needs to be carried out in the open if it is to identify any problems that do exist so that they can be remedied, and if there is to be a repair to the public trust and confidence in the family justice system. As we go to press, the Ministry of Justice has announced there will be a review of some of the issues, to be completed in three months.. Whilst the evidence presented thus far does not prove there is a problem, as the President of the Family Division has recently said it is more than adequate to show us that the responsible and reflective thing to do is to check things out rather than sticking our fingers in our ears. How this campaign will have progressed by the time this update reaches publication is anyone’s guess.
Once again we encourage anyone who is eligible to attend private hearings under PD 36J (probably most of the readership of this publication) to consider trying their hand at legal blogging. There are a range of resources on our legal bloggers page to help get you started, and example blog posts too.