Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the January 2019 issue, [2019] Fam Law 75.
On 22 November 2018 The Transparency Project facilitated a panel discussion at Gresham College to ask the question: ‘Allegations of domestic abuse – are family courts working for children and families?’ The event was attended by almost a hundred people, and audience contributions were enthusiastic and varied, coming both from survivors of abuse and those who support them, and from those who represent those who have been on the wrong end of such allegations.
The panel too was drawn from a broad cross section: chaired by journalist and Transparency Project member Louise Tickle, panelists spanned the judiciary (Mr Justice Keehan), Cafcass (Sarah Parsons), the bar (Sam King QC), support organisations (Olive Craig Rights of Women and Bob Greig Only Dads / Only Mums) and psychology (Dr Freda Gardner). Each made valuable and frank contributions – the point of consensus as between panelists and audience members of all backgrounds seemed to be that the system was struggling due to lack of resources, and that sadly without additional resources there were limits on what improvements might be made. There were many calls throughout the evening for the partial or complete reinstatement of legal aid. Overall, the room seemed to hold the collective view that (for probably varying reasons) the answer to the debate question was ‘No’ (or at least ‘Not completely’).
It is to the credit of the chair, the panel and particularly those who attended that almost 2 hours of debate on this difficult and emotive topic was challenging but respectful. Some of those who asked questions or made a point were audibly anxious and were speaking from a position of personal pain, and we are pleased that they felt able to participate. The range of views was such that most participants will have heard remarks with which they profoundly disagreed, but without exception every speaker was allowed to speak without interruption or heckle.
SOME HIGHLIGHTS
Coercive control
Asked about levels of understanding of the long term impacts of coercive/emotional abuse, Mr Justice Keehan said that there was an increasing and growing awareness of this phenomenon, and whilst he acknowledged that more needs to be done to raise awareness he thought that the potential ongoing impact of coercive or controlling behaviour was now much more readily taken into account by judges when deciding whether to believe allegations. Sam King QC wondered whether the ‘5 incidents’ approach to domestic abuse allegations was apt to deal with cases of coercive and controlling behaviour.
Alienation
Sarah Parsons rebutted the suggestion from an audience member that Cafcass was taking a ‘harder line’ in respect of parental alienation. She said that the focus was on the individual child’s experience and through the new Child Impact Assessment Framework practitioners were encouraged to consider all potential forms of harm.
Expert evidence
In response to a query about experts who supported particular organisations, Dr Gardner and Mr Justice Keehan firmly emphasised how important it was for experts to retain their impartiality and independence, and the likelihood of such evidence being disregarded if that impartiality or independence was found to be lacking.
Preventative work / help for perpetrators
Olive Craig made a plea for more preventative work – that was echoed by Dr Gardner who also said the system was letting perpetrators down. Perpetrators can be extraordinarily vulnerable people who need a lot of help said Dr Gardner. They are sometimes victims themselves, and they go on to form other relationships so there is a need to address these issues. Many cases are intergenerational. FNF asked Cafcass why they only commissioned perpetrators programmes for men, and Sarah Parsons was able to confirm that Cafcass are in the process of commissioning programmes for female perpetrators.
Child’s voice
On the topic of children’s voice and resistance to contact, Dr Gardner encouraged those present to think about the fact that there is sometimes a difference between what a child says and their best interests. She described the starting of contact as a process rather than an event, and argued that professionals have a responsibility to help a child get beyond reluctance. She said that even in a case where a parent is a perpetrator of abuse this process can be a healing process – an apology from an abusive parent was powerful. However, an order that simply demands that a child should attend, may not be sensitive enough to the needs of the case. Sarah Parsons said that this was a critical function of Cafcass – to make the child’s voice ‘sing out’.
In response to a question involving a scenario where a mother was compelled by an order to send a child to contact with an abusive parent where abuse was ongoing during contact Mr Justice Keehan explained that this was the sort of thing the court might need to hear evidence about to decide if the court agrees about what is happening.
Public v private
The panel acknowledged that there are ways in which the expectations placed upon and practical resources available to parents in care proceedings as compared to private law proceedings are sometimes different and inconsistent. Dr Gardner argued that professionals ought to be prepared to tolerate some risk and provide intervention rather than simply removing children
Legal aid
Olive Craig warned that there are advice deserts in family law so that even where litigants were eligible for legal aid they couldn’t access it. Bob Greig and Sam King QC both called for a reinstatement of legal aid. Dr Gardner wondered whether we might also need to think about whether litigants lack ’emotional capacity’ (rather than cognitive capacity) to conduct proceedings as a result of the stresses of proceedings – and that a lack of such capacity might qualify a litigant for legal aid.
Whilst Families Need Fathers raised a challenge about a rise in non-molestation applications since LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) in particular regions, panelists and audience members challenged the conclusions that could properly be drawn from the available statistics (see our analysis of this: Fathers’ group claims parents and lawyers fraudulently claim legal aid (again), Transparency Projectblog 7 Nov 2018 and linked blog posts).
REFORM?
A number of panelists and audience members talked about the possibility of radical reform of the approach of family courts and the way in which domestic abuse specifically is handled, and a number of suggestions were made about potentially useful models abroad and within this jurisdiction (FDAC – Family Drug and Alcohol Courts) etc. There was enthusiasm for the idea of some sort of radical rethink, but of course nobody present had the magic money tree that would be required to make such change happen. We know that one or two attendees expressed frustration on social media that this event was unable to provide a direct route through to reform and that it did not produce concrete enough answers to the issues that all identified – but we think that debate and awareness raising is an important first step in improving any system.
NEW GUIDANCE NOTE
Although we think the debate was important in its own right, another main purpose behind it was to launch The Transparency Project’s latest guidance note: How Do Family Courts Deal With Cases About Children Where There Might Be Domestic Abuse? This guidance note is intended to help parents and those who support them to navigate the family court system in domestic abuse cases, and in particular to understand the particular processes and expectations in cases where issues of domestic abuse are raised. We hope they will be helpful for both represented and unrepresented parents. Copies of the guidance note can be viewed or downloaded for free at www.transparencyproject.org.uk/resources. Please do consider making it available to your clients.
The event was live tweeted on the @seethrujustice twitter account and using the hashtag #TPtalksDA. As with other events we have facilitated the event was filmed and the video will be published on YouTube in due course for those who were unable to come.