This week in the House of Commons, during a debate about Domestic Abuse and the Family Courts, Jess Phillips MP said this :
…There is often friction among specialist women’s organisations, the judiciary and lawyers with regard to issues to do with violence against women and girls, and the court system. Often the problem is that we do not all sing from the same hymn sheet. Every single one of the briefings, however, whether from the Magistrates’ Association, the Law Society or one of the specialist organisations, makes at least one of three recommendations to Government. I will therefore focus on those specific recommendations and ask the Government to do something about them.
The first relates to perpetrators being able to cross-examine victims in the family court. If the general public had any real sense that that was happening, they would be absolutely horrified. Members of Parliament have come up to me in this place to say, “You’ll never guess what about this case in my constituency, Jess—her perpetrator was allowed to cross-examine her in court.” They are stunned to find that that is allowed to happen.
…Another issue that was raised was specialist support and advocacy for women going through the family justice system.
…The third thing that every single person who has been in touch with me has raised is the issue of special measures in the family courts, which are woefully behind those in criminal justice proceedings.
It appears that the primary aim of the debate was to try and encourage the government to once again bring forward legislation on the first of these three issues – to prevent alleged perpetrators of domestic abuse from cross examining those who are said to be their victims. A Bill almost made its way through the last Parliament before being lost as a result of the General Election. Many have been trying to ensure that in between Brexit related legislation this uncontroversial but hugely important piece of legislation can be enacted as soon as possible.
You can read the full debate here.
During her speech Ms Phillips cites some statistics :
Queen Mary University of London found that 24% of domestic violence victims who had gone through the family court system had been cross-examined by their perpetrator—someone who may have raped them, kept them prisoner or made them look on while they abused their children.
She goes on to cite some further statistics in rebuttal of the parental alienation lobby suggestion that family courts favour women and in doing so fail to grasp and deal with an epidemic of parental alienation.
We will all have heard about parental alienation from some idiot dressed as Spider-Man crawling up the side of a building—the idea that women purposefully alienate children from their fathers is well known.
Those people have won the war of rhetoric. If we ask anyone in the street whether they think family court proceedings are more likely to fall in favour of a man or a woman, every single one would say it was more likely to fall in favour of a woman. The reality is entirely different. In cases of the most severe domestic abuse, 38% of violent perpetrators—people who have been criminalised for abuse—are granted unsupervised access to their children. It is absolutely not the case that family courts are favourable to women. CAFCASS plays a severe role in marginalising women in that process.
This is pretty combative language and is a good illustration of how polarised these two parallel public debates about two characterisations of the same issue (refusal of contact) have become. Throughout Ms Phillips speech (and those to whom she gave way in the course of the debate) the language is of victim and perpetrator and in terms the debate is characterised as necessarily involving women who have been the victims of domestic abuse. There is almost no acknowledgment of the fact that domestic abuse can be perpetrated by women and upon men, or that some allegations of abuse will be untrue. Most importantly, there is no acknowledgment of the fact that those who are accused of domestic abuse are generally NOT convicted perpetrators, because if they were convicted there would almost certainly be no need for the fact finding hearing during which the problem of cross examination arises.
We think that in order to have a meaningful public debate it is really important to be clear, calm and accurate when talking about such polarised and difficult issues. We do not think that either ‘side’ of this debate always manages this. In this instance we are worried about some of the statistics relied upon, which we have set out above.
Firstly, Ms Phillips asserted that ‘24% of domestic violence victims who had gone through the family court system had been cross-examined by their perpetrator—someone who may have raped them, kept them prisoner or made them look on while they abused their children.’
This is based upon a recent study by Queen Mary University of London and Womens Aid ‘Domestic abuse, human rights and the family courts’. That study ‘is based on the testimonies of 72 women survivors living in England.’ As such we don’t think it supports the proposition made by Ms Phillips that 24% of victims who have gone through the system have been cross examined by their perpetrator’. It does support the narrower proposition that 24% of those responding had been cross examined by their perpetrator, which equates to 17 women. Although there is no particular reason to doubt their self report it is also important to understand that these 17 women were reporting their experience and perception of abuse and the family court system – we don’t know whether the court found the allegations proven OR how serious the allegations were in those individual cases. Whilst Phillips says they might have been raped, kept prisoner or made to look whilst their children were abused – that is speculative and rhetorical rather than evidence based. Many of the cases of domestic abuse going through the family courts each year (of which there are tens of thousands) do not involve allegations of rape or false imprisonment at all.
The second statistic that Ms Phillips cites is not referenced at all. She says that ‘38% of violent perpetrators—people who have been criminalised for abuse—are granted unsupervised access to their children.’ When we read this statistic we were immediately reminded of a study by Women’s Aid and CAFCASS published last year which also has a similar statistic. However, we weren’t sure this could be the right study, because that study is another small sample ‘snapshot’ type study of 216 cases, of which 40 were subjected to qualitative analysis. And that study was based upon cases involving allegations of domestic abuse without any clarity as to whether those allegations had been proved or not. One of the statistics emerging from that study was that ‘Where the order at the final hearing was known, it was less common for unsupervised contact to be ordered in cases featuring allegations of domestic abuse (39%) than cases without (48%).’ (We suspect the 1% difference is a rounding difference). Again, we don’t think that this study (if it is the one relied upon) supports the broad system-wide assertion that is made. How many of the 39% of cases in the sample of 40 featured allegations of domestic abuse that weren’t true, weren’t proved or weren’t pursued, for example?
We don’t think in either instance the sample sizes are sufficiently large to justify the drawing of system wide assertions, where there are tens of thousands of families dealt with by the family court each year. See our earlier post about the Women’s Aid and CAFCASS study here.
— transparency project (@seethrujustice) July 20, 2018
We have tweeted Ms Phillips a number of times to ask her to confirm whether or not we are right about this – there may be another study we haven’t seen that the 38% statistic is drawn from, but we cannot think of another that fits the bill. We have not received any reply at all, but we hope in due course Ms Phillips will either confirm the source of the statistic or make a public correction. We think that where a statistic has entered the public record it is really important that the public record is corrected if wrong. If we have got our wires crossed or if we hear further from Ms Phillips we will update this post. We have also sent Ms Phillips a draft of this post by email but so far no response.
The question of domestic abuse and how it is dealt with by family courts is a hugely important issue and the family courts do not always get things right. The campaign to improve the situation is necessary and timely – but it is likely to be undermined if the use of statistics is as cavalier and misleading as it appears to have been here. This is not the first time that we have raised such issues (See here for example where we raised queries to clarify the evidence base for assertions by Womens Aid about the proportion of victims cross examined by perpetrators which turned out to have been based upon a very small survey of self selecting users of Women’s Aid and here where we queried the use of statistics relating to non-molestation applications by Families Need Fathers). We make clear that we have no agenda other than accuracy and balanced public debate – where mens rights activists, pro-parental alienation campaigners or any other group or individual make inaccurate claims we will willingly challenge them too (as the examples above illustrate). Many claims are made about the extent of parental alienation without a sufficient evidence base too.
Feature Pic : Stephanie Lepoint on Flickr (creative commons – thanks)