In the Victoria Derbyshire television programme on 16 May, Sir James Munby, the former President of the Family Division, acknowledged (via a written statement) the weight of expressions of dissatisfaction and concern that was building up about orders for contact allegedly being made for unsupervised contact with dangerous parents. He stated that independent research about how the family courts were treating victims of abuse was desperately needed. Speakers in the previous programme had said there was a dearth of research in this area so we have had a quick review of what seems to be available.
Harm caused to children by domestic abuse/intimate partner violence
Research over decades has shown that violence in the family home causes children stress and harm, even if not directly witnessed. For example, the Harvard National Scientific Council on the Developing Child states that:
Learning to deal with stress is an important part of healthy development. But extreme, ongoing stress can have serious, damaging effects across the lifespan, resulting in significant costs to communities and nations for medical care, social programs, and more.
When a child experiences extreme, frequent, and/or prolonged adversity (e.g., abuse, neglect, caregiver substance abuse or mental illness, exposure to violence, family economic hardship) without adequate adult support, a toxic stress response can be triggered in the body and impair the child’s development, with lifelong effects on learning, behaviour, and health.
Any child who experiences prolonged adversity is at risk for physical and mental health problems, and individuals who are more vulnerable to stress are even more likely to experience long-term impacts.
The evidence is consistent across jurisdictions and disciplines. It is reflected in the definition of ‘harm’ in the Children Act 1989 and recognised as a common factor in child protection investigations into emotional abuse.
There is also strong evidence that a mother is particularly at risk at the time, or shortly after, separating from an abusive partner.
Research on family courts’ approach
Internationally, there is a huge amount of research evidence that family courts tend to ignore or minimise violence against women and children when considering these types of disputes. Here is a relatively recent article, that is open access and freely available:
These two articles, open access from the Journal of Social Welfare and Family Law, are about Ireland and Scotland respectively (Scotland appears to have a more joined-up policy than other jurisdictions):
However, most research about family courts is from the USA, Canada and Australia. While the findings may accurately reflect embedded attitudes of judges and family court practitioners across jurisdictions, this limits direct applicability to the courts in England and Wales. There is no US equivalent of Cafcass, for example. Judges may read reports by ‘custody evaluators’, who are psychologists. The Australian Family Court has its own family court consultants, who have a similar role to Cafcass, and children are assigned their own lawyers. However, in a recent large study of children and young people’s views, most who participated felt that their opinion was not heard where their living arrangements were unsafe or unworkable (R Carson, E Dunstan, J Dunstan and D Roopani, Children and young people in separated families: Family law system experiences and needs (Australian Institute of Family Studies, 2018).
A second problem is that what research exists in England and Wales on mothers’ and children’s experiences is for the most part pre-LASPO. Fortin Hunt and Scanlan undertook a large study of (by then young adult) children’s experience of court-ordered contact, in order to inform the passing of the Children and Families Act 2014 (Jane Fortin, Joan Hunt and Lesley Scanlan, Taking a longer view of contact: the perspectives of young adults who experience parental separation in their youth 2012).
Respondents’ experiences of contact were sometimes negatively coloured by memories of domestic violence between their parents, their own abuse or the non-resident parent’s excessive drinking or mental illness. For some this meant that contact felt unsafe; for others it affected the way they felt about the non-resident parent, which then impacted on their experience of contact… Typically the pre-separation relationship was already poor and post-separation there was often little sense that the non-resident parent was making an effort to make contact a positive experience for the child. Not surprisingly, almost all of these respondents had withdrawn from contact, either permanently or for a period
Studies of court files by Hunt and Macleod (Joan Hunt and Alison Macleod, Outcomes of applications to court for contact orders after parental separation or divorce (Ministry of Justice, 2008) and Harding and Newnham, (Maebh Harding and Annika Newnham, How do county courts share the care of children between parents? (2015)both reported that there were allegations of domestic abuse (or other risky behaviours) in about half of the cases. They observed that these issues were often downplayed by the courts. Hunt and Macleod wrote:
while such concerns are clearly highly relevant to the outcome, the mere raising of concerns is not determinative. Of the 143 completed cases in which at least one serious welfare concern was raised 60% ended with staying or unsupervised visiting contact. There was no single concern in which the proportion of cases ending in unsupervised contact fell to less than half, nor did multiple concerns tip the balance. If, as it is sometimes claimed, resident parents play the welfare card in order to resist contact, their strike rate is rather low.
In cases where any serious welfare issues were raised resident parent respondents were more likely to be successful than in cases where they were not (43% compared to 31%, although this did not prove to be statistically significant, even in the cases where face to face or unsupervised contact was opposed. Analysis of outcomes according to each type of welfare concern shows that in most (but not all) instances resident parents were more likely to ‘succeed’ where the concern was raised, but the only one in which the difference proved statistically significant was domestic violence (p<.05).
Nonetheless, even where serious concerns were raised the only circumstances in which resident parents were more likely to succeed than to fail were where they were opposing any face to face contact because of alleged domestic violence (55% success rate) or drug abuse (58% success rate).
Harding and Newnham wrote:
the court’s approach in dealing with allegations of domestic violence is one of risk management. The relationship between the parties or the violent nature of the abusive parent is considered irrelevant to the issue of contact if the risk of violence to the child or the other party can be effectively managed. Courts absolve themselves from undertaking adversarial fact-findings by side-lining the allegations as irrelevant to the issue of contact. This refocussing of the issue allows the risk to be managed by engaging in more problem-solving and child-focussed investigative processes such as a Section 7 report or S16A Risk Assessment rather than adversarial fact findings.
We are only aware of one piece of English research into children’s views, as expressed in Cafcass reports (but the journal article is not open access). Gillian Macdonald writes on this in ‘Hearing children’s voices? Including children’s perspectives on their experiences of domestic violence in welfare reports prepared for the English courts in private family law proceedings’ Child Abuse & Neglect 65 (2017) pages 1-13. She studied 70 Cafcass reports that had been written in 2006-2007 and found that children’s voiced experiences of family violence were rarely factored in to the final recommendations, which were based on ways of making contact work, rather than whether it should take place. It was only where older children were so opposed to contact that it was unrealistic to expect it to happen, that their own view had any effect on the recommendations to the court.
More recently, with regard to process, Hunter and Barnett’s report to the Family Justice Council (2013) on the use of fact finding hearings included a survey of 623 judge and practitioners (Rosemary Hunter and Adrienne Barnett, Fact-Finding Hearings and the Implementation of the President’s Practice Direction: Residence and Contact Cases: Domestic Violence and Harm. 2013) . Few who responded to the survey felt they had sufficient training on domestic abuse. The study concluded that the Practice Direction on fact-finding was being seriously curtailed in some courts, with allegations being sidelined as not recent or not serious. Worryingly, some lawyers in the survey did say that they had on occasion advised clients not to raise allegations. The report led to PD12J being revised. As far as we are aware subsequent research on the revised PD has not been been commissioned, but there is currently a FJC working party on domestic abuse which may produce some guidance. Also, Mr Justice Stephen Cobb is currently reviewing private law procedures, although his report was scheduled for early May.
Research since LASPO
The only relevant recent UK study that we know of is by Jenny Birchall and Shazia Choudhry, What about my right not be abused? 2018) They reported that the extent of risk being tolerated by the family courts was so high as to suggest women’s human rights are being abused. There was also evidence of children’s distress. This study was based on 72 responses to a Women’s Aid survey in England who were survivors of abuse. It might therefore be argued that it represents a minority of cases where procedures went wrong, but the scale of the response to the Victoria Derbyshire show indicates a much wider problem.
We hope that the three-month review commissioned by the MoJ will include a research plan. In the meantime, here is a reminder that The Transparency Project has published a guide on what to expect in court on this type of case and you can also watch our video of the Panel discussion at its launch in November last year.