This is a guest post from Dr Charlotte Proudman. Charlotte is a family law barrister at Goldsmith Chambers specialising in violence against women and girls. She tweets as @DrProudman.
On 21 June 2019, the Ministry of Justice (MOJ) announcedthe identity of the panel of professionals that would be reviewing evidence on how the family courts can better protect children and parents in cases of domestic abuse and other serious offences. This follows the announcement on 21 May 2019 that the MOJ intend to make a public call for evidence over a short three-month period. The panel comprises of organisations and professionals working in the area of family justice. The panel does not include victims of domestic abuse that have been through the process, instead they remain marginalised and distanced from the decision-making process, which is likely to involve key recommendations for reform. The MOJ’s focus on family courts and domestic abuse has been long-awaited.
Parents often agree contact post-breakdown of their relationship. In contact cases that come before the family courts, the majority appear to result in acrimony stemming from family abuse in which a parent (usually a mother) contends that they are refusing contact with the other parent due to safeguarding concerns for the child. As a family law barrister, I regularly witness the family court’s mishandling of domestic abuse in children cases. When I first commenced practice, I was surprised to learn of the court’s approach in either dismissing or reducing the significance of allegations of domestic abuse within the family household. I have heard judges refer to domestic abuse as “just a bit of DV” and watched as judges put the allegations of domestic abuse to one side, stating that they are irrelevant because several months or years have passed since the last allegation was made – or that the children did not directly witness their father batter their mother thereby rendering the allegations ‘irrelevant’. Courts struggle to acknowledge the impact of domestic violence upon children. The Royal College of Psychiatristsnotes that children who have witnessed violence and abuse are more likely to become involved in violent and abusive relationship as adults. Children tend to copy the behaviour of their parents. Girls learn that violence is expected and boys learn that violence can be perpetrated against women without consequences.
I am often bemused by family court’s decision making in cases where there is an overlap between potential care proceedings and private law children proceedings. For example, Childrens’ Services intervene due to escalating violence in the household and to the mother’s credit she leaves the father to protect the children before they are put into state care. The father then makes an application to the family court to spend time with the children. In these circumstances, I have seen family courts order contact between children and fathers regardless of ‘historic’ abuse on the basis that the relationship with the mother has ended and therefore the volatile home dynamic has changed. There is no recognition that the father’s anger and violence is likely to manifest itself in other ways, leaving the children at risk. In many respects the mother is viewed as ‘the problem’ as her position in the family home is perceived as the core motivation for the violence. In the most tragic cases, children have been murdered by their fathers after the court has ordered contact. In these cases, there is no direct redress available: principles of judicial independence make it difficult for judges to directly participate in serious case reviews in the way that organisations such as Cafcass or Childrens’ Services can be. Lessons need to be learned to prevent such situations arising in the future.
Of course, there is another side to the story. Fathers often argue that the mother’s allegations are untrue or the mother is complicit in the family abuse. Fathers often contend that mothers are seeking to alienate the children from them. Parental alienation is a term that has gained traction in children proceedings over recent years. There appears to be scant scientific research into parental alienation yet it is bandied about in the family courts to attempt to explain why a mother persists in making unfounded allegations of domestic abuse against a father. In many cases, it can appear preposterous to suggest that a mother is making unfounded allegations of domestic abuse to reduce the time that the child spends with the father. In reality, this means the mother subjecting herself to extensive court hearings over the course of months if not years, significant cost incurred in lawyer’s fees, professional’s involvement in the children’s lives and the pain of experiencing gruelling cross-examination. Only in a minority of cases are allegations sadly fictitious.
Practice Direction 12J is supposed to be invoked by family courts when there are allegations of domestic abuse in children proceedings. I have only seen family judges acknowledge PD 12J in a handful of cases over the years. I have seen mothers pressurised into ‘agreeing’ contact that they know the judge will order anyway. I have seen a judge disregard a CAFCASS Officer’s report documenting a mother’s allegations of a father’s controlling behaviour then refusing to list a fact-finding hearing when one was warranted. I have seen judges specifically requiring a mother to conduct handovers directly with an abusive father notwithstanding the mother indicating that she was terrified of doing so.
The Victoria Derbyshire show on BBC 2 on 15 May 2019 brought together a wide range of key players, including those who have long been involved in the campaign against family courts ordering contact as a matter of course when there are allegations of domestic abuse. I spoke about having watched abused mothers sat shaking outside of court, fearing confronting their abuser. In my experience special measures such as a screen are a rarity. A report published by Women’s Aidmade a compelling argument that the court has legitimated the power abusers have over victims in children proceedings. Louise Haigh MP spoke about her campaign to open up the family courts to public scrutiny. Over 120 MPs signed an open letter to the Government led by Louise Haigh MP to ban abusers from having contact with their children. Meanwhile, Jess Phillips MP proposed that there is a presumption of no contact where there is found to have been domestic abuse in the family. Given the overwhelming impact of domestic abuse on children’s lives, this could be a viable proposal. If perpetrators accept findings of domestic abuse, they could be given the opportunity to undergo intensive therapy or a perpetrator’s intervention programme for example, to evidence meaningful change.
A group of 30 family lawyers and victims’ representatives have called for an independent inquiry into the failures by the family courts to deal with domestic abuse. I, along with Dame Vera Baird QC, Cris McCurley of Ben Hoare Bell and Jenny Beck of Beck Fitzgerald (amongst others) wrote to the Justice Secretary, David Gauke, urging him to upgrade the review announced by the MOJ. As stated in the letter,
“Practice direction 12J is often ignored or ‘nodded through’ without any proper risk assessment, leaving women and children vulnerable. Where a fact-finding hearing is listed, the victim is increasingly being told to limit the number of allegations that can be considered by the judge, meaning that there is not a full forensic and expert assessment of the risks. The impact of coercive control, emotional abuse, economic abuse and other forms of non-physical violence are routinely overlooked. Twelve weeks is not enough time to properly evaluate the reasons why the system is currently placing children and victims at unacceptable risk. Any inquiry must be independent if justice is to be seen to be done.”
The letter proposes twelve possible improvements to the family justice system. In my view the following four proposals are the most important:
First, the introduction of a triaging system of domestic abuse cases, which means that domestic abuse would be flagged as an issue within cases and then such cases would be dealt with by independent bodies that are qualified in identifying abuse and trained to deal with victims and perpetrators.
Second, legal aid for both parties ought to be available until the conclusion of the hearing.
Third, better training for the judiciary about domestic abuse – including coercive control, which is often minimised.
Finally, more support needs to be available for those alleging abuse at court, this includes separate entrances and waiting rooms, and a screen inside the court room.
There is scant information about what the actual remit of the panel will be, although a sketch of the focus of the panel is contained in the original announcement (see here). What is clear, is that there needs to be an overhaul in the way family courts deal with cases of domestic abuse, because when contact is ordered without a thorough investigation and safeguards in place children are left at risk of harm. The attitudes I have seen to be prevalent in the family courts demean the significance of domestic abuse and are woefully out of step with modern day society. Change is needed now.
Ed : We’ve got some other posts on this topic coming up soon. Watch this space…