This post was originally published on the Pink Tape blog on 28 September 2020 and represents the view of the author. We have published a number of other posts about the Harms report which you can read here, here and here.
I’ve been chewing this one over for a while before commenting. Because it’s important. And because the report says some very uncomfortable things for family justice professionals, things that deserve and demand proper consideration. And because the report is a whopper, with so much to digest. So here goes. My take on the Spotlight report (Full title : Assessing risk of harm to children and parents in private law children cases).
Two things to say by way of preamble. Firstly, as chair of the Transparency Project I called for a review of the family courts’ handling of domestic abuse before this review was announced. It was necessary and important. Secondly, I raised concern about the set up of this review, wondering if it could ever hope to achieve its objectives through the gathering of unverified anecdotal evidence – large volumes of anecdotal evidence are still anecdotal even where they are gathered in bulk. Whilst we shouldn’t discount the voices of those impacted by the process we are scrutinising, we would be unwise to accept them all at face value without scrutiny.
But anecdotal evidence is not without value. Firstly, because it tells us about the experience of those subjected to a process, and secondly because it may lead us towards patterns that can be subsequently objectively verified through research. This review has not conducted its own research or attempted objective verification (that is not a criticism of the review team, it is just how the review was set up), but they have gathered a significant body of anecdotal evidence which is strongly suggesting some patterns some problems. And those are things all of us need to reflect seriously upon – even where the emergent patterns do not match our own direct experience.
It’s unsurprising that some things chime in with my experience, and also that some things really don’t. I expected from the outset that many of the individual accounts that would emerge through the review would be of behaviour and experiences I might struggle to match with what I see in practice (or have seen over my 18 years of work in the field), and that some might present an inadvertently distorted picture of what was really happening. We lawyers are used to advising our clients in very careful terms, only to hear that advice reported back to others in ways that are barely recognisable (my lawyer told me to do [insert improbable advice here]). Lawyers are also used to hearing apparently genuine and persuasive witnesses describe the same events in wholly incompatible terms : people hear and see what they want to, they persuade themselves unknowingly of what happened (in their relationship, in conference, in court), subconsciously adjusting memories as time passes and perspective changes. This is why we must be cautious of anecdotal accounts from one party involved in a multi-party process, especially one where the subject matter is highly emotive and traumatic, and where almost inevitably around half of the participants will come out the other end feeling like the process has reached the wrong answer.
And so we lawyers instinctively ask, if the Respondent says X happened : what does the Respondent’s lawyer say happened, what does the Applicant or their lawyer recall, what does the judge say – and what do the lawyer’s notes, the judgment, the court file or the audio recording of the hearing show? We have none of that here, just collections of accounts of negative experiences (because unsurprisingly most respondents to the review were clearly motivated to submit evidence as a result of negative experiences), disassociated from any alternative perspectives or from the contemporaneous records. They are highly consistent, which does add weight – but that consistency might arise from a number of factors, separate or combined.
And in broad terms we knew what those responses would say before they were even submitted. We know this because the reason the review was commissioned was that people have been making the same serious complaints for years. And because we could also see campaigning organisations (predominantly womens’ rights and domestic abuse organisations, but also to a lesser extent fathers’ rights organisations) marshalling their forces, encouraging their members to respond, reminding them what sort of evidence to submit, providing templates in order to make their collective point effectively. The submissions do need to be seen against that backdrop of a highly co-ordinated and persistent campaign to make precisely the point that the review has now made : in short, that the family court is pretty poor at dealing with domestic abuse.
But whilst this all raises some pretty big forensic questions, it doesn’t necessarily mean that the point is not well made. It seems unlikely that all these accounts are inaccurate, that there is no fire from which this huge smoke cloud is emanating. Even I, the handmaid of the system, am able to see the system is pretty poor at dealing with domestic abuse.
It’s worth noting too that the authors of the report themselves do confront and reflect on these limitations and they give, to my mind, a strong account of the high levels of consistency between the accounts received and of their reliance upon them. I don’t think this consistency can all be put down to the farming of accounts by campaigning organisations, particularly since those accounts appear in some aspects to be consistent with the worrying displays of poor appreciation of the complexity and working of domestic abuse apparent from the submissions of some professionals. And whilst I don’t recognise it all, some of what is complained of is far too easy to believe when I compare it to what I do see and hear on occasion. Nor can it be fairly said (as predictably it is) that this line is just coming from bitter mothers whose attempts to use false allegations to thwart contact had been rejected by the court – it is also coming from the mouths of professionals, on some occasions unwittingly exposing their own poor practice.
If the family justice system were the respondent to allegations at a fact finding hearing, it would have the benefit of the doubt (the burden of proof would be on those who accuse it of abusive behaviour towards victims). But there are good reasons why the Family Court adopts a flexible approach to evidence in ways that other courts do no – it does admit hearsay evidence, and, as we have recently been reminded by the case of R v P (Children: Similar Fact Evidence)  EWCA Civ 1088, propensity / similar fact evidence can be relevant and admissible. Just as it is in the way of domestic abuse that there is rarely contemporaneous, independent evidence, making it quite tricky to prove abuse that takes place in private and leaves no visible bruises – so it is for victims of a poorly functioning justice system, where interactions also take place in private and where complaints may be assumed to be the result of sour grapes or discounted when made against a respectable, well-meaning institution.
Except of course, whilst it is very difficult for the victims of any system failure to produce direct contemporaneous evidence, in fact that evidence does exist – in the form of bundles, lawyers notes, court files, and court recordings. The system holds the answers to all this – though it holds them under lock and key because participants may not speak publicly of what took place nor access the records with ease. If we were running this trial of trials to the gold standard forensically, we’d track down these primary materials and test the testimony of those bringing allegations to see if it comes up to proof. When a litigant says the judge shouted, dismissed their allegations, failed to follow procedure – there is a way to check accuracy, to get to the bottom of whether experience narrated from memory matches with objective contemporaneous record.
But as is now becoming wearily familiar with everything in this justice system, we must make do with what we’ve got. Fairness and forensic rigour are all relative, moveable concepts (viz the shift from a firm view that a remote hearing could not be fair to the insistence only a few months later that it can – nothing has changed except what is possible).
And so, as with the advocate briefed just before at a fact finding hearing, who discovers that none of the potential primary material has been disclosed or placed in the bundle, we must just do the best we can with what we’ve got. Nobody is going to entertain an adjournment so we’d better crack on.
That’s part 1. In Part 2 I set out some specific observations I made as I read through the report, and thought about them in the context of my own direct experience. In due course in Part 3 I will round up with my conclusions.