A new report on research undertaken by Jaime Lindsey (Associate Professor in Medical Law, Oriel College, Oxford) and Joanna Harwood (Lecturer, Essex University Law School) makes a number of recommendations regarding private family law proceedings in England and Wales where there have been allegations against a parent of child sexual abuse (CSA). It’s not a long document, and worth reading in full.
The recommendations are based on a project that used two methods to investigate the experience of children who had been subject to such allegations in the family court:
- Narrative research with people who had made disclosures of CSA as children in private family law proceedings. This was a mix of interviews with and diaries written by five women aged between 14 and ‘in her 30s’. The court cases had been more than ten years ago for three of the women, and more recent for two.
- Focus groups with legal and child welfare professionals who had experience of working on cases involving CSA allegations. These comprised: four solicitors; one barrister; one retired judge; two independent sexual violence advocates; one counsellor and one therapist.
With regard to transparency, the report says:
Overall, the context to private family law proceedings and CSA cases is one of uncertainty. There is little evidence regarding the frequency of allegations, fact-finding judgments, outcomes of proceedings, who is involved in cases, children’s long-term wellbeing, overlap with other forms of abuse and children’s experiences of proceedings. These are all problems more generally within private family law but the paucity of evidence in relation to CSA in particular is surprising given both the significance of the harm and the widespread prevalence of CSA in society. This research seeks to make a contribution to improving understanding of these cases and we hope that our approach encourages others, both researchers and professionals, to conduct further work to increase transparency and understanding in this area.
We know that only a few family court judgments are published, so there’s little point investigating how many feature CSA. However, it might seem surprising that Cafcass don’t keep statistics on the incidence of CSA issues in their casework. Presumably they don’t, according to this research.
What are the concerns about CSA allegations in family courts?
Separately from this report, the Home Office-funded Centre for Expertise on CSA published new figures on 16 July estimating that that one in six children in the general population are victims of CSA but that only a small minority are identified by professionals. Their director said:
worryingly few cases ever come to the attention of statutory agencies, with children unlikely to disclose abuse directly and many professionals lacking the knowledge and confidence to identify and act on signs and concerns.
A member of the public might assume that allegations of CSA would be dealt with in the criminal courts and/or by child protection procedures in public law in the family court. Why then do we need research about private law family proceedings?
This is what the authors say:
The perceived problems of responding to CSA in private family law have been well documented. Some of the challenges arise from the nature of CSA disclosures: sexual abuse of children within families is hidden and associated with trauma, fear, shame, anxiety, behavioural dysregulation, and long-term damage to children’s sense of safety in family and intimate relationships. Most perpetrators of CSA are fathers and step-fathers. As a consequence, most disclosures within private family law proceedings involve alleged perpetrators who are parents, step-parents or father figures, and the harm is, therefore, not only a sexual crime but also relational: the child may experience abuse as a betrayal by someone who should have provided care and protection. This makes private family court decision-making especially important. The court is not dealing with an abstract allegation, but with decisions about with whom the child should live and spend time, and the court is having to navigate complex welfare considerations in circumstances where the alleged source of harm may remain present in the child’s life if findings of sexual abuse are not made. The consequences of getting CSA cases wrong in private family law can be devastating.
(The report cites the relevant authorities for these points in its footnotes)
However, despite concerns raised in the Harm Report which called for more direct research about children’s experiences, and the current roll-out of the Pathfinder Pilot/Child Focused Courts model, there has been little attention paid to the voices of children in this type of case.
What did the research participants say?
Obviously, it is extremely difficult for researchers to find victims who will want to participate in a project like this, although the study will have gone through a rigorous ethics approval process. It isn’t surprising that only a small number of women took part, and the researchers are not saying that this group necessarily reflect all experiences.
Typical comments by victims were:
- Why didn’t you listen to me
- I didn’t feel that they heard me
- How can you say a six year old is lying
The court process continued their experiences of trauma:
‘it’s a massive trauma in itself and the court system and that whole process is another trauma, so a lot of it’s kind of smooshed into one big thing of emotion and numbness’
Women described being frightened by unpredictable situations such as their father visiting their school or discovering their father was watching them at a contact centre, arrangements put in place by the court that felt like a test. They had difficulties knowing who to trust.
While these participants may not be representative of all victims, and their recollections of their experiences are subjective, they powerfully express common themes of not being listened to and not supported through the family court process.
Their descriptions chime with comments by the professionals about the adversarial process, e.g.
‘if I cannot go as far as saying that the threshold is crossed, that child is left with the burden of having made an allegation and then being placed back into a place of great danger. And when we’re looking at the binary system, that for me is a real flaw.’ Retired judge
The fact that, you know, unless a finding is made, it didn’t take place. So unless we have a finding of CSA, there is no CSA. The realistic chances of proving CSA, obviously, in the absence of a criminal investigation, which is inconclusive and in private law proceedings, so you haven’t got a guardian necessarily. But even actually where you have got a guardian, you’ve got a real difficulty hearing the voices of children. They’ll almost certainly speak to their primary caregiver or the person that they trust the most. That’s usually the mother. The mother therefore has this real dilemma: if they disclose what the child has said to them, which of course they want to do to keep the child safe, they run the risk of being told that they have fabricated an allegation or coached, or sometimes invented an allegation in order to undermine a father’s contact with the child. They run the risk of being accused of so-called alienating behaviours.’ Solicitor
Conclusions
The recommendations include more direct participation by children and improved trauma-informed practice by judges and lawyers.
In particular, we noticed Recommendation 8:
Where a child has made allegations of abuse against a parent, the Family Procedure Rules Committee should amend the Family Procedure Rules to make it clear that the child should be made a party and have access to funded independent representation.
We note that Practice Direction 16 does say at para 7.2 that a child should be made a party (and then have a Cafcass guardian and their own lawyer) where:
(h) where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic abuse not capable of being resolved with the help of [Cafcass].
However the PD says these are examples as ‘guidance only’. The report therefore seems to be recommending that allegations of CSA should always lead to a 16.4 guardian appointment. We’re surprised this doesn’t happen, but clearly it is a problem, as mentioned by the lawyer quoted above.
Two of the recommendations are about checking for future improvements in listening to children:
9: The Ministry of Justice should monitor the practice and implementation of judges writing judgments for children.
10. The Ministry of Justice should incorporate explicit monitoring and analysis of CSA cases as part of the evaluation of Child Focused Courts.
The report encourages judges to communicate directly with children, but it must be very difficult for a judge to say: ‘I didn’t believe you enough, therefore this didn’t happen’.
I wish they knew what they had stolen from me”: Child Sexual Abuse and the Family Court
This is the title of a separate recent report from the National Centre for Action on Child Sexual Abuse in Australia. The findings are similar to those of Lindsey and Harwood, although the family justice system is different to that in England and Wales. Three in-depth case studies with adult survivors of CSA allegations in family courts informed some recommendations for the Australian system which the author, Dr Morag McSween described as a
retraumatising and anti-recovery experience for victims and survivors of complex or continuous trauma, including child sexual abuse; and the Court functions in practice as a parallel child sexual abuse investigation agency.
The researchers concluded that it is currently unsafe in most cases for the (Australian) Family Court to reach conclusions on whether child sexual abuse has or has not occurred.
Image: thanks Steven Shorrock at flickr