PART TWO
This is Part Two of a report from observing a final hearing in the Central London Family Court as a legal blogger and applying for the usual statutory bar on reporting to be lifted, so as to be able to publish this anonymised report. Part One is my report of the background and the hearing. Part Two contains my observations on the hearing and some reflections on the family justice system process for dealing with cases like this more generally.
Observations and reflections
I don’t have a view on whether this Judge got the findings or the welfare decisions they underpinned right in this case. I didn’t hear the fact-finding evidence or read the documentary bundle. I also missed the parents’ evidence at the welfare hearing, save for catching the tail end of cross examination of the mother, ahead of the guardian’s evidence and I hadn’t read the main professional and expert reports, let alone the bundle of key welfare evidence.
Nor could I follow up on or contextualise small points of possible interest I observed throughout this welfare hearing. For example, what was the judge referring to in saying this mother had accused the court of dishonesty? And what was this mother referring to in telling the judge she was struggling to feel safe doing handovers in France because this father had said in his evidence that she required a period of psychiatric inpatient treatment in France? What exactly had the psychologist said in his report, along the lines of: it could also be that the father’s attempt to have H-N with him is an attempt to punish her, and certainly his precise and demanding behaviours affect the mother’s self-esteem – that led H-N’s mother to try to point this out to the judge, only for the judge to see it as yet another example of her tendency to embellish and impose her own narrative on the evidence? [para 116 of the welfare judgment that has just been published has since clarified this last point].
But, as an observer, I was struck by the gaps between the analysis of the judge and that of H-N’s guardian and whether they might suggest inconsistency in recognising allegations of domestic abuse and coercive controlling behaviour within a family justice system working towards an (eventual) roll out of a new model via pathfinder pilots that are just over the half-way stage. The following are some observations of the process I saw in action through attending the welfare hearing and considering the judgments that preceded it, and my reflections on those with respect to the wider canvas.
Demeanour
B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 was one of a couple of authorities HHJ Roberts cited as particularly helpful in her fact finding judgment. The other was Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61) cited in Re H-N, on how not all bad behaviour in relationships is domestic abuse. HHJ Roberts cited B-M as follows, explaining that she had taken witness demeanour into account, only in light of the evidence as a whole:
“No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable. (para 25)
Nevertheless I wondered, in light of Lord Leggatt’s recent lecture on witness demeanour, whether we might be over-optimistic in asking family court judges to accurately assess witness credibility at all in many situations or in imagining that they can truly distinguish the impact of impression and demeanour from the impact of other evidence. Rather than allowing the one to drive the other in circular fashion, with impressions of the persons involved driving interpretation of each individual piece of other evidence, to then justify those impressions. Particularly in domestic abuse cases such as those involving allegations of complex, covert, post-separation manipulation.
What Leggatt tells us (in non-binding commentary that isn’t entirely consistent with case authorities) is that evidence shows that, contrary to popular assumption, veracity simply cannot be accurately judged from demeanour at all, whether by judges or other supposed experts. And that anyone trying to judge veracity by demeanour is likely to be fooled – by witnesses who have an honest demeanour but are lying, or by disbelieving witnesses with a poor demeanour who are telling the truth.
Williams J is reported to have asked a similar question recently at the British Psychological Society’s annual conference on expert witnesses, albeit with more of a focus on the need to better understand all the possible reasons why survivors of abuse might tend to struggle to give good evidence. (If his speech or slides have been published I haven’t been able to find them):
“Survivors of domestic abuse — are they cognitively challenged and is that trauma biased? Are we undervaluing their evidence if it is somewhat incoherent of their ability to give an account, was that impaired by trauma? The articulate and confident liar but the cognitively challenged truth teller, is a challenge.”
I was struck by multiple references in the findings (re hearing) judgment to H-N’s father’s demeanour in relation to veracity, albeit accompanied by significant documentary evidence:
I think these allegations are most unlikely to be true, looking at the totality of the evidence and my assessment of how the father appears throughout the papers and in court (75).
I do not find that the father is a person who would do such a thing…I see nothing in his behaviour or character to suggest that he would do such a thing…
The father does not strike me as such a man (141)
In summing up the parents’ evidence in delivering judgment from the welfare hearing HHJ Roberts said this:
‘H-N’s father impressed me. He complied with good grace. He was unfailingly polite. He assisted the Court. I see him as a truthful witness essentially’.
The reality is that this judge in this case found multiple instances of the contemporaneous record not matching H-N’s mother’s version, when considering the evidence ‘as a whole’. And if an experienced judge cannot rely on documentary discrepancies mixed with witness demeanour in person and through the documents, to determine disputed matters of fact what then is left? (In terms of the established model of adversarial fact-finding at least).
Nevertheless, I wondered if demeanour and impression with all its inevitable, innate, unconscious bias, (and any gender based scepticism about domestic abuse or impact of a ‘pro contact culture’) aren’t actually the very lens through which we interpret each bit of documentary evidence.
Moreover, certain anxious, ASD profile parents who may have been on the wrong end of abusive dynamics are likely to have spent several years potentially colluding with a portrait of themselves as the problem. Typically lacking the same levels of self-regulation in functioning, whether relating to past trauma, trauma from an abusive relationship or other, this will inevitably play out through the documentary evidence too. The profiles of those who tend to operate more complex, covert coercive control and manipulation dynamics tend to be alive from the outset to ensuring they don’t leave such paper trails. And are well suited to a one-off performance in court or interview with experts.
The binary system (and binding the future)
The law is clear in requiring judges to operate a binary system. The allegations are either proved by the person making the allegations, to the standard of proof required for civil cases, which is more likely than not (51%, or ‘probably’ in ordinary language) or not proved. The judge is then bound by those findings unless they are shown wrong or changed by appeal or substantial new evidence.
I wondered about the impact of the shackles of that binary system and whether we are asking judges to make black and white from a palette of shades of grey as Byron James said in Family Law some time ago.
And whether the loss of anything nuanced in between, thereafter, including continuous assessment over time, or sustained, on the ground work, by experts able to hold two or more possibilities in mind at a time, is always the safest option going forward.
I found myself also reflecting on the possible impact of findings preceding expert and professional evidence in the arena of allegations of complex patterns of CCB and relationship dynamics. I struggled to see the clear lines between the facts to be found and the expert opinion on psychological functioning. And as HHJ Roberts herself said:
An understanding of the relationship between these two parents is, therefore, important both for my assessment of the general allegation that the mother experienced coercive and controlling behaviour by the father, but also because it is the context for all that has happened. (para 50, findings)
I was unsure too about the impact of findings that foreclose on the range of welfare assessment outcomes that can logically follow for children.
And wondered more generally what use any expertise in domestic abuse and complex (sometimes covert) patterns of abuse, manipulation, and control, including post separation, alongside the more classic inter-personal dynamics that may more routinely underpin high conflict on separation is for children, if it is brought into the case too late to determine the direction of travel. I’m thinking of court professional and expert opinion of Cafcass social workers, psychologists, and psychiatrists as well as out of court subsequent professionals such schools and local authority social workers able to offer sustained on-the-ground direct work with families. What if patterns of abuse, and CCB, particularly those involving covert manipulation in a post separation arena are more amenable to recognition through sustained direct work than the intensive snapshot of an adversarial fact-finding hearing and one-off expert assessments?
Understanding how the inter-disciplinary Pathfinder Pilots are negotiating such challenges will be key. Early indications are that they are doing so by front-loading specialist knowledge of abuse and control dynamics in the pre and post separation arena, via comprehensive Cafcass Child Impact Statements, ahead of consideration even of the need for judicial determination of disputed facts. With informal reports of positive results from the judiciary, Cafcass and others. As well as fewer fact-finding hearings.
And in terms of future-proofing following findings, it was also interesting to note HHJ Roberts’ careful direction prohibiting H-N’s mother from suspending contact without the court’s permission, for example, on advice of a social worker or police officer following allegations via H-N or his mother. In light of the recent Court of Appeal decision that Keehan J’s order binding the police from investigation had gone too far. We’ve yet to see the outcome of that remitted hearing.
Bring on the evaluation and roll out of the pilots, rumoured to be seeing positive change through changes to the model in North Wales and Dorset. That evaluation is expected to start after March 2023.
You can read the judgment from the welfare decision I observed here. (It was published just as this blog was going to press).
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