I am the chair of The Transparency Project. This post represents my personal view about the Dispatches programme. It is not offered as a view from The Transparency Project as an organisation. It is based on my experience over two decades as a barrister representing mums, dads and children – sometimes representing parents who allege domestic abuse or parental alienation, sometimes representing parents who deny those allegations, sometimes representing children and helping the court unpick two polarised and incompatible explanations for the scene before them.

The Transparency Project hosts posts from a range of viewpoints in order to further informed debate. As such, we will consider hosting guest posts about this programme, including those which don’t agree with the views expressed here (subject to our usual quality and legal checks). At the time of publication we’ve not received any requests to publish a guest post.

Full disclosure : Louise Tickle, the show’s reporter, is a member of Transparency Project. She has had no input into this post and The Transparency Project was not involved in the making of the programme.

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Look, it got you all talking didn’t it? Talking about the family court. Talking about how it would be better if we could see the WHOLE picture. Can we at least agree on that?

Don’t be naïve : it could NEVER have shown everything about the family court in an hour long slot. And it could certainly never have pleased all of the polarised camps who are so deeply attached to their version of the wrongs and rights of the family court – no matter how many hours of airtime there were to use.

And also : don’t assume that just because some aspect was missing from the show that this was necessarily by choice. It might well have been absent because the material could not be gathered (e.g. nobody willing to speak from a particular perspective), couldn’t be aired (legal reasons outside the control of the show’s creators), or couldn’t be fitted in. The amount of leg work that goes into that one hour of telly is immense. It cannot be all things to all people.

Quite apart from this predictable ‘whataboutery’, in the few days since the show aired I have seen fulsome praise and vociferous criticism – some legitimate and polite, but some personalised, unpleasant and unfair criticism – both to the reporter and participants. There is talk of mass organised complaints to OFCOM. There are death wishes and threats. Everyone is accusing everyone else of trolling and demanding agreement with their point of view.

Here’s an idea : Rather than focusing on why someone didn’t make the show that YOU wanted, or why the show didn’t mirror your experience or belief – why not focus on what the show DID tell us?

Because I can tell you this : as someone who has worked in the family court for 20 years and who does her damned best to ensure it is fair and humane – there was NOTHING in that show that I could hand on heart say was not a true feature of the family court. That is hard to say – I would rather in a way that the family court had been unfairly traduced so that I could make myself feel better by saying it was all lies. But it isn’t. It isn’t the whole story. But it’s not lies.

And none of these facts – that there is more to say, that case studies give rise to many questions, that there is more nuance the show couldn’t capture, and that there are other major problems the show didn’t tackle – none of them diminish the painful truth that the show revealed.

That word ‘revealed’ was used a lot in the course of the documentary. That’s because that is what documentaries do. They show us stuff we didn’t know. The do it in a way that is engaging. When I say ‘we’ in this context I mean the public. The truth is ‘we’ inside the system know this stuff goes on. We may differ as to how often or how typical it is. But we know it happens. Dispatches told the general public some things it didn’t know. That it ought to know. And that it ought to be in a position to talk about.

A few years ago I might have been banging my drum about the things the show left out, the imbalance that has been created by what’s been left out – about how such and such doesn’t happen in my cases. But frankly, what happens in my cases is only a small part of the bigger picture – we lawyers are the exception rather than the rule these days. Who is watching those cases which have no lawyers involved? And these days I’m not only more knowledgeable and thus pragmatic about what one show can achieve, I’m also more focused on the miracle that any show could be successfully made at all. That is has been, even if it is imperfect, is a triumph of determination, and an important step forward for making things work better and for restoring some semblance of confidence and trust.

Whether or not you agree in principle with the transfer of residence from one parent to the other in cases of parental alienation, whether or not you agree that the examples shown were cases where the court’s actions were justified – whether or not you even agree that parental alienation exists – is not the point. The point is that children ARE removed, at night, by the police on the orders of the court – sometimes because of findings of alienation, sometimes for other more obvious (visible) reasons – and it can cause profound distress, and it sometimes doesn’t produce the benefits to the child that underlie the court’s decision to sanction it. As a society do we think that is ok?

As it happens I do think that in some (few) cases it is sadly necessary – as a last resort (as Sir James Munby, the former ‘Top Family Judge’, explained on the show). And I do think that in some cases the emotional and psychological harm that a child is absorbing from their caring parent is so great, and so likely to cause irreparable harm to a child that a child is better off with the other parent. Whether the transfer of an older child against their wishes by force is safe, and whether that transfer will do more harm than good is a really tough call – sometimes the balance will fall one way, sometimes another. Sometimes the court makes the wrong judgment call and it all falls apart. I’ve been in cases where transfers have been refused, where they have happened and worked out, and where they have been frankly disastrous.

But I also see that parental alienation is a weapon wielded at the first hint of any resistance to whatever it is the non-resident parent (usually the father) is demanding, and regardless of the justification for the resistance (whether by the child or parent). Sometimes I wonder to myself if ‘alienation’ is a shorthand for ‘she doesn’t agree with me – you must make her’. Disagreeing about what is the right level of contact or what are safe arrangements is not alienation. Good parents have different views about what is best for their child. Alienation involves something more : the psychological manipulation of the child. That is serious emotional harm.

The delay resolving disputes about parental behaviour, its relevance and what the right arrangements should look like (now endemic I’m afraid) undoubtedly facilitates alienating behaviour, giving it time and space to take hold – but deploying an allegation of ‘alienation’ just because there is disagreement, on the assumption that manipulation is or will be going on behind the scenes can often make matters worse. Parents who are fearful of losing their child entirely (which is the coded message received whenever an allegation of alienation is made) will do one of two things : dig in and resist more, or cave in and agree to contact that they don’t think is safe or that is contrary to what the child is saying. Sometimes when PA is raised it can lead to everyone disregarding the child’s words, wishes and experience. So when campaigners say that PA is weaponised in the battle for contact they are right – it is the sword of Damocles and it influences parents under its shadow. That’s ok when the refusal of contact is on flimsy or false grounds, less ok when it’s a genuinely held and welfare based position.

And yes, although PA and DA allegations don’t always co-occur, in my view it is sometimes used to neutralise or trump allegations of domestic abuse – a defensive mirroring : the allegations are said to be fabricated excuses made in order to block contact. It is a handy tool through which to frighten and put pressure on an ex partner who has lived with years of your control and bullying – I don’t doubt that some parents cave in because the prospect of litigating cross allegations of abuse and alienation is just too much. The same systemic inefficiency that can prejudice a dad (usually a dad) whose contact is on hold waiting for a fact finding can also inadvertently enable continuing control and disempower a woman trying to protect her child. 

PA can be a seductive way of explaining everything, for a parent who struggles to appreciate or own the impact of their own behaviour on their ex and child. It enables them to shift blame elsewhere, and I’m afraid can sometimes blind parents to their own input to a complex situation, and in those cases it can be the insistence on explaining everything as alienation that contributes to the entrenchment of resistance. Once you have identified as the ‘target parent’ it’s so hard to step back and reflect.

And sadly for parents who really are being alienated, there is a ‘cry wolf’ effect in play because of the flabby, easy way it is used, and because it is wheeled out at the mere hint of disagreement to any proposal – in my experience when people talk in mantras judges can stop listening. I prefer to focus on the welfare issues, prove the behaviour and avoid the labels. Much more effective for the parent left out in the cold.

My comments are sweeping generalisations of course. They might not fit with your experience. In each individual case there is a unique combination of factors at play – sometimes a case is at one end of the spectrum or the other, more often the answer is complicated and doesn’t have a single cause. Often, familiar patterns of behaviour are apparent from the outset, but frequently the true dynamics will remain obscure and difficult to disentangle without time, care and skill – individual cases need individual answers not broad generalisations. Saying allegations of PA or DA are ‘often’ (or always) false or that they are ‘often’ (or always) weaponised doesn’t help anyone work out if they are true or false or mistaken in THIS case.

The individual cases

I don’t know what the full background is to the individual cases that were showcased in Dispatches. Frankly, it’s a miracle they found anyone willing to be interviewed at all. It is no surprise that they were unable to show both sides of the story or the fuller context – a moment’s thought will tell you why.

I thought Julia’s case was shocking. I cannot work out how the father got legal aid (perhaps it began pre-2013 when the rules changed). I assume that Julia was unable to obtain legal aid due to her means. But on any basis given what we do know I cannot work out how it took so long to resolve what sounds like a ‘no brainer’. As ever, perhaps if we knew more than outlined in the programme it would make sense.

As for the other case study involving the footage of a police removal – it is much harder to make sense of this or to draw any real conclusions. The footage is upsetting and emotive – and it’s hard to think past it. But it is very likely that this order was being executed on the orders of the High Court through the Tipstaff, which in itself tells us that matters had reached a particular crunch point – and that the mother was thought unlikely to cooperate with an order without police enforcement (or that she had already refused / failed to cooperate with just such an order). Although the removal was presented as if it were out of the blue there is likely to have been a very long run up to this removal – almost certainly findings against the mother of some sort, attempts to get her to comply with less draconian orders – and ultimately this. The court will have weighed up the risks and benefits of taking this course of action, considered whether there was a less draconian way of achieving the desired result and will almost certainly have delivered a reasoned judgment. If any of those things didn’t happen then I’d be very surprised, and there would be real questions about the fairness of the process and the appropriateness of the decision.

But we just don’t know. And Dispatches will have been prohibited from telling us by the automatic reporting restrictions that apply to the details of the court case. Perhaps the person on the other side didn’t want to talk to them. I don’t know. Either way, to those familiar with the law in this area it is obvious that the show skilfully navigated the line between categories of information that are permitted to be published and the categories of information that cannot be published.

Any family lawyer, particularly a care lawyer, will be familiar with just how difficult the removal of children can be for all involved – parents, children, police, other professionals. Most often police will be removing children to place them in foster care, but sometimes they will remove them to a place of safety with another family member or parent. Any professional who does this work will also be familiar with the wide range of reactions from parents – a surprising number of parents will understand instinctively that they should behave in a way that minimises the upset for the child, that they can best help their child by reassuring them or at any rate by trying to contain their own distress. This mother apparently wasn’t able to do that. I don’t say that by way of criticism, but a parent’s inability to contain their own emotions, and a chronic exposure of the children to those parental anxieties or feelings may be a big feature of alienation cases. It could also be a display of the utter despair of a perfectly innocent parent who has endured malicious or wronghead allegation after allegation, recognises that the worst is finally happening, that the court has been sucked in and that they have not been heard. Who knows which it was? I don’t.

The same validation dilemma exists in respect of the words of the children, now some years older (voiced by actors) – depending on your camp these interviews were either corroborative or simply a case of ‘well they would say that wouldn’t they?’. The voices of children lost in the wind.

What use is half the story?

But in spite of these limitations, do I think the public should see what sometimes happens and how it feels to the people who endure it? Yes. Although the programme only showed the lived experience or perspective of a few individuals, we know those experiences are echoed by many, many others. As Sir James Munby said on the show – it may be anecdotal and self-selecting, but that doesn’t mean we can or should just disregard it (I paraphrase).

It is rare for anyone to go to the lengths necessary to facilitate those who have had a poor experience in the family court to be able to tell their story (Dispatches last tried this in 2013, on that occasion following a father trying to secure contact to his children). That the programme doesn’t tell more stories, or the other sides of those stories it did tell, doesn’t invalidate the importance of some individuals being able to tell us how it felt to them and what it did to their family – many people on both sides of the DA/PA divide feel gagged by the existing family court privacy rules. This is not a trial, whose purpose is to establish proven fact once and for all. It is a documentary, highlighting and exploring particular issues of topical interest, for public consideration.

The truth is that whilst our instinctive response to that footage might be ‘how can that possibly have been in the children’s best interests?’ we don’t really know enough to know. Sometimes time will tell us if a decision was good or bad, and with the benefit of hindsight the decisions to transfer care where we have later life accounts from the children don’t appear to have worked well for them. However, what we can’t know is whether the decisions were sound, bearing in mind the situation and available information at the time. Some would adopt the position that it is never justifiable to remove a child from a parent who gives loving care on the basis of ‘emotional harm’ or ‘alienation’. I would disagree with ‘never’, but there is room for a range of views on this. This programme at least gives us a springboard to talk about those issues, though judging from twitter many prefer to broadcast, bully and shout down anything that doesn’t align with their perspective or which makes their cognitive dissonance jangle, rather than talk. 

About 70% of the respondents to the Dispatches survey were unhappy with their experience of the family court. We did not need a survey to tell us this. It is almost inevitable that about 50% of parents will be dissatisfied – unless they agree they can’t both get what they want. Ergo : dissatisfaction. Frankly, even where matters are ultimately agreed one or both participants may have good reason to be dissatisfied with either the process or the outcome (agreements are very often a compromise, and very different from what the party actually wants). And very obviously those who are aggrieved are more likely to be motivated to complete the survey in the first place.

Both sides of this debate can sometimes be guilty of tunnel vision and dogmatic, black and white perspectives. It would be wrong to say parental alienation doesn’t exist at all, just as much as it would be wrong to say that domestic abuse allegations are all false. Both are real problems, though the show was right to suggest that it is far rarer than claimed. Both are areas where the family court fails families (for complex reasons which I may explore in another post). I tend to think that as a broad generality the family court is inconsistent and often poor at recognising, acknowledging and dealing with domestic abuse (I’m afraid I’m not convinced that the Court of Appeal were right when they said in Re H-N that the sorts of issues cropping up in the four appeals were uncommon), and both too credulous and sloppy in analysing and dealing with allegations of parental alienation – and at times too slow in picking up on emergent evidence of actual alienation. But family courts certainly aren’t pressing the big red “transfer of residence” button with regularity – the show tried to obtain figures for the frequency of these removals via a survey and an FOI, which showed a minimum of 50 or so in a 5 year period, which is a handful a year. For context about 60,000 children a year are now going through this sort of court application. So, whilst the footage was hard hitting and upsetting (for viewers and participants), it isn’t representative of most or even many cases.

Of course, in re-asserting the complexity of these issues and refusing to jump fully on one or other bandwagon I may now have eggs thrown at me from both directions. I have already been criticised on social media for refusing to associate myself with a particular view about the programme and those involved in it, preferring to wait until I had time to write something hopefully more nuanced than a tweet. Frankly, I tend to take as a sign I’m doing something right. And I hope the makers of Dispatches can take the criticisms that have been made of the show in the same spirit.

I think its important to note by the way that the most vitriolic, personalised, violent and threatening responses I have seen have been directed towards those who are supportive of the show and those who participated in it (for the avoidance of doubt responding to a mother expressing disdain for 50:50 demands in the course of a discussion about the show with ‘fuck this bitch to death’ from a father involved in his own proceedings is not the ‘good thing’ referred to in the title of this post. It is misogynist abuse). I have seen threats to use other processes (Ofcom and the professional regulators of some of those interviewed) in order to silence or sanction those who want to tell these and other stories. The answer to any imbalance or inaccuracy is not more silence, it is more talk. The way to undermine the suggestion that there is a systematic weaponisation of particular tactics and processes to undermine and bully women who seek to resist contact is not to use violent words, and nor is it to use other processes to seek to do the same when they express their views, it is to support the opening up of the family court in order to be able to reveal a broader palette of evidence. The response to this programme is unsurprising, but is very much not a good look. What is described in the show is ‘not all cases’ and ‘not all men’, but it is some of them. Attacking the validity of those accounts is a misfire.

What we should really be coming together to focus on is getting to a place where we can have these discussions, arguments, debates about all the different issues and problems that the family court is wrestling with – domestic abuse, parental alienation, delay and structural problems – on the basis of a fuller picture. Not half a story. Not just an hour’s telly that took years to get commissioned, made and to get through legal checks. An ability to look at and talk about individual cases in the round. An ability to see and analyse patterns across cases. We don’t have either of those things. Dispatches was a small window in – a shaft of light into a closed world, a darkened room. Even those working inside of it can’t make sense of it because we can’t see the patterns.

Sunlight really is the best disinfectant. If you think that what Dispatches said was inaccurate – more transparency will show that. If you think what it said was accurate then more transparency will corroborate it. If there are other untold and contrasting stories (of course there are) they can be more easily told with greater transparency.

And if anyone doesn’t like Dispatches they could always go and try their hand at making their own documentary without committing a contempt of court or getting sued, and see how they get on.

Feature pic : Swing by Michael Kappel at Flickr with thanks