This is a guest post from Olive Craig. Olive is senior legal officer at Rights of Women. She is a qualified family law solicitor specialising in children law and legal aid. Rights of Women is a legal charity that provides free, confidential legal advice to women in family law, criminal law, immigration and asylum law and sexual harassment at work. It was one of four women’s charities that jointly intervened in Re H-N.
The Transparency Project has produced a post summarising the judgment, so this post does not aim to do that but instead to explain both the importance of the Court of Appeal judgment and also why it was a missed opportunity for more deep rooted cultural change.
Coercive control
The Court of Appeal’s judgment highlights the importance of family courts understanding coercive control. The comments made by the Court are important and will give professionals, who have been frustrated about old fashioned attitudes that only take physical violence into account, the tools they need to argue on behalf of the alleged victims they represent. The idea that domestic abuse can only have occurred when physical violence has taken place is entirely outdated; equally a lack of recognition that physical violence is frequently part of a coercive and controlling dynamic is also unacceptable in modern times. There are three particularly important paragraphs. At paragraph 52, the Court states:
In like manner, the approach of regarding coercive or controlling incidents that occurred between the adults when they were together in a close relationship as being ‘in the past’, and therefore of little or no relevance in terms of establishing a risk of future harm, should, we believe, also be considered to be ‘old fashioned’ and no longer acceptable.
This is important because we still hear about judges who tell alleged victims that they are not interested in domestic abuse allegations that they consider historic. When judges refuse to consider patterns of behaviour, they miss the way in which coercive control can persist over time as circumstances change and, as a result, fail to notice that the abuse is still happening, sometimes in their own court rooms.
At paragraph 53, the Court states:
Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.
We have already been contacted by a woman advised that she has grounds to appeal a previous fact-finding decision in light of this judgment. That particular woman is not eligible for legal aid and as a result we do not know whether she will appeal. But this paragraph is sending a clear message that family judges who do not pay attention to this judgment may find themselves subject to appeal.
The most important part of the judgment on coercive control is at paragraph is 31, where the Court states:
A pattern of abusive behaviour is as relevant to the child as to the adult victim. The child can be harmed in any one or a combination of ways for example where the abusive behaviour:
1 Is directed against, or witnessed by, the child;
2 Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;
3 Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;
4 Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.
This is the most important part because it highlights why these issues are relevant in child contact cases. Coercive control is not only experienced by the adult victim. Children are victims of it too and are harmed by it. This goes to the heart of the welfare principle and will be an invaluable tool for those advocating for protection of children from this form of abuse.
The missed opportunity
Sadly, for us, this is where the positive aspects of the judgment ends. The Court of Appeal is careful at the start of the judgment to be clear that there is other reform work going on within the family justice system. The Harm Panel Report published in June 2020 made wide ranging recommendations about reform and there are a number of reforms being piloted. We feel there are reasons for optimism about some of those reforms (though not all). The Harm Panel Report and literature review that accompanied it were included in the appeal papers the Court considered.
What is so disappointing in the Court of Appeal’s judgment is the failure to acknowledge how damning the Harm Panel Report is of the family justice system’s response to parents who allege domestic abuse. The conclusion was that the family court is placing those parents and children at risk of harm from domestic abuse. The system which is meant to place children’s welfare at its heart as its ‘paramount consideration’ is currently placing children at risk of domestic abuse. It is a scandal. Instead, in the paragraph immediately after the quote about coercive control above, the Court of Appeal went on to state:
We are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the Family Court.
The Court’s confidence in the face of the findings by the Harm Panel Report could only kindly be described as disappointing. What is clear from the report and the evidence in the appeal cases, is that the approach described is not at all well understood. It is notable that the judgment refers to the training for all judges in issues around domestic abuse as grounds for confidence. The family court experiences of the women we speak to daily suggests to us that this training is not sufficient and the Court of Appeal’s over-confidence in such training as a solution to the problems identified in the Harm Panel Report is an error.
The Court failed to acknowledge the clear links between the conclusions in the Harm Panel Report and the appeal cases they were hearing. The Harm Report states:
The evidence received by the panel, together with the literature review, show there are four overarching barriers to the family court’s ability to respond consistently and effectively to domestic abuse and other serious offences:
• The court’s pro-contact culture
• The adversarial system
• Resource limitations affecting all aspects of private law proceedings
• The way the family court works in silo, lacking coordination with other courts and organisations dealing with domestic abuse.
The Court of Appeal is right that many of these recommendations are beyond their control and this judgment was not the place to address them. However, changing the structures and properly funding the system will only make small differences if the court’s pro-contact culture is not addressed. The Court of Appeal had the opportunity to send a clear message about the pro-contact culture within the family court that is currently placing alleged victims and children at risk and chose not to do so.
Firstly, let’s address what we mean by the ‘pro-contact culture’. The Harm Panel Report describes it as follows:
The second barrier to the courts addressing domestic abuse effectively is the priority placed by the family justice system on ensuring that contact between the child and non-resident parent will occur. Previous literature has identified the ‘pro-contact culture’ of the family courts and we have adopted this terminology as appropriate to capture the systemic and deep-seated nature of the courts’ commitment to maintaining contact between children and non-resident parents. A ‘culture’ describes the particular set of beliefs and behaviours (sometimes unconscious or taken-for-granted) of a group of people. Most institutions develop a distinctive culture over time, and the family courts are no exception. This does not mean that all members of the institution necessarily agree with or conform to all aspects of the culture. But it does mean that there is a strong pressure to conform, and that cultural change does not happen easily.[1]
This is not about the law. The law is that the child’s welfare is the court’s paramount consideration. There is a presumption in law that involvement of both parents in the life of the child will further the child’s welfare unless it is not safe (for discussion of ECHR law on this see Jack Harrison’s post on this case).
The pro-contact culture being referred to above is a description of the assumptions professionals in the system make, whether consciously or not, that contact is going to happen anyway, so ‘let’s just get on with it’. It is the way in which we assume the law will be applied. It leads to a minimisation of the harm caused by domestic abuse and therefore hinders the proper application of the welfare principle. It also leads lawyers to focus very heavily on the rights of the parents to see their child and of the child to see their parents while ignoring the other parts of the United Nations Convention on the Rights of the Child[2] that make clear a child also has a right to be protected from all forms of violence. It leads to a system that overlooks the resident parent’s right to a private life, free from violence and abuse and the state’s role in protecting individuals, both adults and children, from violence and abuse[3].
The cases the Court of Appeal heard are full of examples of this culture in action.
In Re B-B, the Court of Appeal upheld the mother’s appeal against a consent order:
Counsel for the mother submitted to the judge that the case was not about drugs, but about the allegations made by the mother of abuse, to which the judge responded: ‘Well how’s that going to affect contact’. Further attempts by counsel to highlight aspects of the mother’s case were to no avail. The judge said that the parties should ‘sort it out’ and that ‘you should have had the riot act read to you months ago’. The parties were then sent out to see if they could reach an agreement as to contact. (para 96)
At the conclusion of the hearing, the judge said that contact would have to ‘come out of the contact centre’ at some point and that ‘this is why fact findings are often a complete waste of time, because the end result will be that there’ll be, at some stage, contact outside with father.’ (para. 98)
The judge…offered the parents every encouragement and warm congratulations when they reached a compromise which led to the making of a comprehensive order (para. 102)
Of the four appeal cases, Re B-B raises the issues we see most commonly on our family law advice line at Rights of Women. The judge’s comments demonstrate his belief that contact is going to happen anyway before he has actually assessed what, if any abuse happened and what impact it might have had on the child. This is not an application of the welfare principle, this is the pro-contact culture in action.
In Re T, the Court of Appeal upheld the appeal on the basis that HHJ Evans-Gordon failed to recognise the impact on the mother and child of the abuse in relation to which she did make findings. The Court concluded she did not regard the incidents “with the significance they deserve”. Another way of saying that would be to say she minimised the domestic abuse. The examples of her attempts to minimise the abuse are quite astounding:
The judge, whilst not satisfied that the father ever attempted to ‘strangle’ the mother, held that ‘the father probably held the mother in the vicinity of her neck’. She went on that he ‘may well have used words to the effect that he would kill the mother but, it seems to me, that these words are commonly used in anger which do not import any genuine threat to life’ (para. 167)
The father came up behind the mother when she was sitting on the floor with T on her knee and, without warning, put a plastic bag over the mother’s head. The father said, ‘This is how you should die’. (para. 168)
The judge agreed the plastic bag incident was an aggressive thing to do but also found it was probably a prank. The Court of Appeal is rightly critical of these findings. The appeal was upheld on this basis. What is missing from their analysis is the recognition that this is the exact same minimisation of abuse and the harm it causes that is identified within the Harm Panel Report and which has its roots in the pro-contact culture.
It beggars belief that your partner could put a plastic bag over your head and threaten you with death and have a judge find this was probably just a prank. That during an argument your partner could say they were going to kill you, hold you ‘in the vicinity of your neck’ and have a judge conclude you were not strangled and it is just normal ‘bad breakup’ behaviour is horrifying. What does ‘in the vicinity of your neck’ mean? The only sensible way of interpreting this is that the father held the mother by the neck while threatening to kill her. To most of us, this is just another way of saying, ‘he strangled her’. The minimisation of domestic abuse in this case in order to justify a decision to order contact is what we are referring to when we talk about a pro-contact culture.
In Re H-N, the Court of Appeal upheld the appeal against HHJ Tolson QC’s dismissal of the mother’s allegations and subsequent directions including that she should have a mental health assessment.[4] The Court of Appeal’s comments about HHJ Tolson QC’s judgment are appropriately scathing. They are clearly unimpressed with his analysis and do not attempt to justify it, even by reference to the over-worked judiciary.
The judge rightly recognised that an allegation of rape is serious but went on to say that its relevance was ‘more limited’ so far as the best interests of the child are concerned in circumstances where there were many later occasions of consensual sex and limited also by the fact that H-N had stayed with the father by consent for a lengthy period in 2018. (para 194)
Whilst accepting fully that no judge can be expected to analyse the detail of each and every allegation and to comment on or record every submission, in our judgment the judge nevertheless failed sufficiently to take into account significant features in respect of the various allegations. That failure feeds into the submission that the judge revealed through some of his remarks as set out above, that he had preconceived views about the case and in particular about the mother. (para 200)
The entirely appropriate criticism of the judge’s approach in this case runs from paragraphs 200-223. But crucially the Court fails to go on to recognise the judge’s decisions as the minimisation of domestic abuse identified in the Harm Panel Report that is a result of the pro-contact culture.
The Court of Appeal judgment fails to look where all of its findings are inevitably pointing – to the damaging pro-contact culture identified in the Harm Panel Report, and the systemic misogyny which underpins it. These deeply held views and attitudes are also what prevent professionals from seeing these connections and understanding the pattern. But the evidence that it exists is clear. If the Harm Panel Report is to effect real change, culture change must start now.
In our submissions to the Court of Appeal as one of four joint interveners, we were realistic about how much change this judgment could achieve. The complete reform recommended in the Harm Panel Report was not within the Court of Appeal’s gift. But we did hope that the President of the Family Division, after receiving such a damning report on the state of the justice system over which he presides would have taken the opportunity to send a clear message that the pro-contact culture exists and needs addressing. It is exemplified in the cases the Court heard and it is unacceptable. It fails both adult and child victims of abuse. We concluded our submissions stating:
a ‘sea change’ is required as to how the family justice system deals with cases of domestic abuse and assesses the risk of harm to children who have been affected/impacted. The fact that the Assessing Risk of Harm Report has arrived recently after a number of years in the search for significant change only emphasises the need for a change in culture and approach. The need for timely change is urgent and the window is now.
Sadly, this particular opportunity was not taken by the Court of Appeal but hopefully this judgment will be a jumping off point for other professionals within the system to take up that challenge.
[1] Page 42
[2] Article 19 of the UNCRC
[3] It is notable that the judgment does not mention the UNCRC, the European Convention on Human Rights or the Human Rights Act 1998.
[4] Although it would have been outside the scope of the judgment for the Court to comment on it, it is notable that HHJ Tolson QC also made completely inappropriate conclusions about the mental health of the mother in J v M suggesting that the approach in the case of H-N is not exceptional.