No one is ever going to give the BBC TV show Silent Witness any prizes for being particularly factually accurate (what do you MEAN forensic pathologists don’t actually run around solving crimes!?). But who cares, right? It’s good, dramatic telly.

That was all well and good until Silent Witness decided to do an episode centring on my profession.

The two-part episode ‘Seven Times’ revolves around various suspicious deaths in the lives of four women who have stayed in or are currently seeking sanctuary in a women’s refuge. One of the women, Tina Harcourt, is embroiled in ongoing private law proceedings with her ex-husband over their two daughters, Poppy and Daisy.

A quick perusal through Twitter shows that responses to the episodes have been mixed.

Jack Harrison wrote earlier this week about Coronation Street’s treatment of care proceedings in their storyline about Fizz and her daughter, Hope. He observed that the storyline was inaccurate in a number of ways and warns that irresponsible or sensational plots can reinforce the public’s suspicions about social services and break down trust which is already very fragile. My analysis of the Silent Witness episodes raises similar concerns.

What did Silent Witness get right?

Let me start of by saying that the episodes were very powerful in their depictions of the varied ways in which domestic abuse manifests. We have Jade and Lucie, a mixed-race, same-sex couple. Jade has just come out of prison into the waiting arms of Lucie, who we then learn has been subjected by Jade to systematic emotional and physical abuse. Jade tells Lucie that she would kill herself if Lucie ever cheated on her; that she hurts her because she loves her. This culminates in Lucie carving Jade’s name into her arm with a knife. When she is collected at A&E, she weeps that it must have been her fault.

There’s Donna and Brian, an older couple whose daughter Jenny has been subjected to domestic abuse from her own husband. It then transpires that Brian, himself, is an abuser who beats his wife regularly. Donna tells him that he has passed it on like a disease and made Jenny think it was normal.

Cheryl’s boyfriend, Owen, uses her as a mule to transport drugs. He violently grabs her face and then kisses her passionately in the same breath so that she can barely separate abuse from affection. He rapes her violently and then asks: “why are you making me do this?”

It’s harrowing viewing to say the least. It reiterates that the perpetrators of domestic violence are often charming, charismatic, loving… and that’s what makes the abuse so difficult to escape. When a male character comments that Jenny returned to her violent husband, the lead character played by Emilia Fox responds: on average, it takes seven attempts before a woman leaves an abusive relationship.

How are the family courts depicted in Silent Witness?

For a practical guide as to how family courts operate in these sorts of cases, see The Transparency Project’s Guidance note available here.

My biggest bugbear about these episodes is that the family court hearings are devoid of all context. Our first encounter with the family justice system is when Tina is explaining to the judge why her daughters did not have contact with their father as directed by the court. After initially trying to say that the children were ill and she kept them home from school, she then admits that she is afraid of what their father might do to them (and had therefore lied to the court just moments earlier). The judge tells her sternly that the court has given her an instruction and expects her to follow it.

To the average member of the public, the scene may seem shocking. A victim of domestic abuse has raised concerns that her children are at risk and, despite this, the court is insisting that the perpetrator have contact with the children who, inevitably, would also be placed at risk.

Let’s take a few steps back. It is not the case that, when allegations of domestic abuse are raised in private law proceedings, that a court would simply say: “ah, well never mind, there should be contact anyway”. Before the matter even gets to a hearing, the parties would be able to detail any allegations of abuse against the other in either the application form, or in their response to the application.

By the first hearing in the proceedings, the First Hearing Dispute Resolution Appointment (FHDRA), the Child and Family Court Advisory and Support Service (Cafcass) is required to provide a safeguarding letter to the court. To prepare the letter, they interview both parents, and obtain information from the local authority and the police to see if they have had any involvement with the family. One would expect that Tina would tell the Cafcass officer in her interview that there was domestic abuse perpetrated against her. It is not unusual, where the allegations are serious, for a Cafcass officer to err on the side of caution and recommend that no direct contact take place between the parent against whom the allegations have been made and the children until the court determines whether the allegations are true or not.

Where the allegations are serious and relevant to the children’s welfare, but disputed by the other side, the court should decide that a fact-finding hearing is needed. This is a hearing where the court hears evidence from both parties and then decides – on the balance of probabilities (a lower standard of proof than the criminal standard of “beyond reasonable doubt”) – whether the alleged fact is true or not. If the court finds that there has been domestic violence, it’s correct that this doesn’t necessarily mean contact between a parent and a child comes to an end. However, what may happen is that the perpetrator is directed to attend some kind of domestic violence perpetrators programme. If they complete this successfully, engage well, and show insight into their actions, the court is likely to consider progressing supervised contact first. This may be supervised by a professional in a contact centre, or by a family member/friend in the community.

The court may require the abusive parent to undergo a psychological assessment or a specialist risk assessment to explore their insight into the abuse that they perpetrated. There are different options available to the court before it can be satisfied that contact can progress, where it is found that the parent has perpetrated domestic abuse. What is unlikely to happen is that the court just dismisses the abuse altogether and blunders ahead with contact.

The court may take the view that there isn’t sufficient evidence before it to make any findings that there has been domestic violence. This isn’t unusual. The nature of domestic violence is that it is often in the private sphere and the only witnesses are the perpetrator and the victim. This means that even if there has been domestic violence, sometimes the victim and the court may not have enough evidence available to establish that there was domestic violence for the purposes of the court proceedings.

This might seem an unfair system, and I’m not saying that it is perfect by any means. I have no doubt that some abusers will use the family courts as a mechanism to continue to abuse their victims. However, a court can only make decisions on the basis of evidence, not allegations. The judge in Silent Witness says: “I am inclined to favour evidence over accusation”. This may seem callous, but what is the alternative? If allegations are made, they need to be probed and tested to verify their truth. The court is duty-bound not to take things at face value, but to assess the evidence.

The court in Silent Witness would not (or should not) have reached the point of directing contact unless it felt that the arrangements were safe for the children. There may have been a fact-finding. If there was a fact-finding, either the court found that there was no domestic violence, or it found that there was domestic violence and perhaps the father was required to engage in some form of rehabilitative work or assessment before contact could progress. It is likely to be the former: the judge tells the mother that there is no evidence of violence towards the children or indeed any evidence of anything that they can reasonably be frightened of. This is not to say that it didn’t happen. It’s simply that the court did not have sufficient evidence to establish that it did happen.

Judges’ approaches to domestic violence can, of course, be flawed. We’ve just had the landmark appeal judgment of Ms Justice Russell in JH v MF [2020] EWHC 86 (Fam) which came out last week. This highlighted serious problems in the first instance judge’s treatment of consent at a fact-finding hearing. Russell J goes so far as to say in her judgment that she has spoken to the President of the Family Division about the urgent need for all family court judges to have training in recognising the nature and effects of domestic abuse.

Unlike the other women in the episode, we never find out the ins and outs of the abuse that Tina has suffered. Her McKenzie friend, Cheryl, asks the judge if he knows what “gas-lighting” is and points out that not all abuse can be seen on the outside. It may be the case that the abuse she suffered is more coercive and controlling. A later scene in the episode lends credence to this idea. Her ex-husband confronts her in a park and tells her that no one believes her, that she isn’t well and that she is unable to care for the children, dripping poison into her ear. The judge dealing with her case (a judge who – plot twist – turns out to be accused of sexual assault himself!) may well fall within the category of judges with a deplorable understanding of domestic abuse and the many ways that it may manifest.

The judge tells the parties that he is concerned that this is an “example of parental alienation” and that the fear the children feel towards their father is of the mother’s construction. He tells the mother that she must explain to them that there is nothing to be afraid of, and she must do this under supervision so he can be confident that it has been done. I would hope that a court would not reach the point of saying something like this to a party alleging domestic abuse unless there is good reason to do so. The parent with whom the children are living is expected to promote contact (if it is safe to do so). Clearly, Tina is not going to be promoting contact any time soon. She deliberately breaches the court order and has tried to lie about why the order had been breached by saying her children were ill. The court likely has not made any findings that her husband has perpetrated domestic abuse, or certainly not findings that would prohibit contact from progressing. Tina does not hide her feelings towards her ex-partner or manage her emotions in front of her children, so they definitely know how she feels about him and will pick up on this. She tells social services quite clearly that she knows what is best for her children and decides that they will not go to contact. The judge’s concerns about parental alienation might have some justification but the portrayal of her ex-husband suggests not.. We simply don’t have the full picture.

The children don’t want to see their father, for whatever reason. This may be because they witnessed abuse, or because they are picking up on their mother’s emotions. Despite this, Big Bad Social Services grabs them by the hand and drags them to contact. In deciding whether contact should take place, the court takes into account the children’s wishes and feelings. More weight is accorded to the wishes and feelings of older children because a 15 or 16-year-old likely can’t be forced to do anything they don’t want to do, being on the cusp of adulthood. Younger children’s wishes and feelings, whilst still important, are not determinative of whether there should be contact. Poppy and Daisy both look under the age of 10.

If they are expressing clear, repeated resistance to going to contact, social work professionals – one would hope – would not drag them to contact when they are clearly distressed. Forcing them is likely to cause them further emotional harm. Children who are particularly resistant to having contact are sometimes taken to a Child Contact Intervention, where professionals speak to them about their objections to contact, try to help them overcome these objections, and prepare them to go to contact. Sometimes it works, sometimes it doesn’t. But a distressed child is highly unlikely to be forced, repeatedly, to have contact with a parent.

When Tina doesn’t attend the next hearing, the judge finds that she has breached the Child Arrangements Order in place (which she has) without good reason and then says she’s going to jail(!) Let me say now: it’s highly unlikely that a judge will up sticks and just send a party to jail. Sending someone to prison for contempt of court is very serious and the parent in contempt should be given the opportunity to make representations to the court before the court can do anything as drastic as send them to jail. Anecdotally, I can certainly say that orders are breached all the time, and while it is in the court’s power to send a party to jail for contempt, never have I seen a court go that far. Quite obviously, it is probably not in a child’s best interests to have one parent behind bars.

The judge then says he is willing to hear arguments for “paternal custody”. Aside from the fact that lawyers in England and Wales don’t use the term “custody”, transferring a child’s primary residence from one parent to the other is very serious and is considered a highly draconian measure which would, inevitably, be disruptive to the child.  It’s extremely unlikely that a judge would make such an order in Tina’s absence and in the absence of expert or professional evidence that it would be in the children’s best interests. She is likely to be warned that if she continues to breach the order, then the court may consider a transfer of residence. There would be a final hearing, where both parties would give evidence. A report from a professional, such as the Local Authority, may be directed, so that they can give their views on the impact of a transfer of residence on the child. No judge would just go: “SHE BREACHED MY ORDER, OFF TO JAIL, I WILL NOW CONSIDER WHETHER THESE KIDS SHOULD GO TO DAD”, especially not in circumstances where the children are distressed by the prospect of even seeing their father and are only having supervised contact.

One last observation: the court hearings take place in what seems to be the judge’s chambers rather than in a courtroom. This is a small room, usually at a table, where the judge is sitting at the same level as the parties. Given how terrified Tina is of her husband – terrified enough to be in a refuge – I would expect her to have requested some kind of special measures, such as screens so that she doesn’t have to look at him directly. This may not be something that Silent Witness deliberately got right but I can certainly count on one hand the number of times special measures have been requested for one of my clients and then have actually been put in place. The initial application form asks whether any special measures are required, such as separate waiting rooms or screens. I’m usually pleasantly surprised when I turn up to court to find that – shock – the court actually arranged for separate waiting rooms or screens! 

Conclusion

Of course, a TV drama is limited by time when it comes to how much detail it can go into. We can’t trawl through the entire set of family proceedings from FHDRA to final hearing, stopping at all the interim hearings in the process. However, if the BBC is taking on the responsibility of addressing an issue as serious as domestic abuse in one of its most popular TV shows, it really needs to do better. Sensational plotlines and poor research damage public perceptions of the legal system.

I am not, by any stretch of the imagination, saying that family courts always get it right when it comes to domestic abuse. I am not leaping to the defence of a system that produced a judgment like the one under appeal in JH v MF and, in light of judgments like that, I think it’s important for lawyers not to eye-roll or to have the kneejerk reaction of extolling the many virtues of the family justice system when it is criticised by families. I know that how I perceive the family justice system (as well as other lawyers) may be  very different from how parents perceive it. I will never be able to empathise fully or understand the trauma of abuse victims being forced to confront their abusers in court proceedings.

However, the Silent Witness depiction of the family justice system is so devoid of context that it feeds into the lack of trust the public has and – more importantly – victims have in the family courts. Yes, we need to listen to families. Yes, we need to take concerns about the treatment of domestic abuse in the courts seriously when so many victims are telling us that the system is letting us down. But broadcasters and the media have a responsibility not to further undermine the relationship between the system and the public with scare-mongering plotlines. This matters.