Judges don’t need ‘training’ about violence – they need evidence.

This is a post by Sarah Phillimore

Response of the CPR to the Family Inquiry into the courts response to domestic violence

I have commented critically on the nature of the Inquiry and the response of some such as Charlotte Proudman to what necessitates such an Inquiry – making the reasonable point that serious allegations require some kind of evidence.

I confess that I missed the initial call by a group of family lawyers into an independent review of how domestic abuse is treated in the family courts – reported here in Family Law Week on 29th May 2019 and here in the Guardian. 

What happens when the starting point is ‘victim’?

The letter from the lawyers group is a detailed and clearly articulated statement of case that makes many good points.  They say

There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.

This echoes the points made by Dr Proudman in her post for The Transparency Project. I commented that her experience did not reflect mine, nor that of the other family lawyers who commented via Twitter. We clearly see here the dangers of relying on one person’s subjective experience over anothers – as the tiresome but accurate cliche has it ‘anecdotes are not data’.

But there is something interesting going on. The group states:

We can say from our experience that Practice Direction 12J is often ignored or ‘nodded through’ without any proper risk assessment, leaving women and children vulnerable. Where a fact-finding hearing is listed, the victim is increasingly being told to limit the number of allegations that can be considered by the judge, meaning that there is not a full forensic and expert assessment of the risks. The impact of coercive control, emotional abuse, economic abuse and other forms of non- physical violence are routinely overlooked.

And its there in that use of the word ‘victim’. Clearly if your starting point is that anyone who makes an allegation of abuse is in fact a victim of that abuse then you are going to take a very different and probably negative view of a judge who takes another approach – as indeed every judge must. To deal with any family case on the basis that one party’s allegations are accepted as fact prior to any attempt to hear evidence about contested allegations is simply a denial of justice. It is wrong. Advising police, for example, that they must commence their investigations by ‘believing the victim’ has been rightly decried by the Henriques Report and caused much human misery and massive waste of public money.

The fact that anyone who alleges abuse is automatically a victim is embedded in the recommendations

A domestic abuse coordinator in each court appointed in order to specifically ensure that victims going through the court process are properly protected and all necessary measures are in place, to try to minimise the risk of further abuse through the court process.

And this is a real problem. It is my very clear experience, arising I accept from 20 years experience, not robust peer reviewed research, that while out and out lies made by women about abuse suffered are rare, exaggeration and re-stating history are very commonplace.  Unkindness, cruelty, blinkered thinking, denial etc etc are qualities that I am afraid are demonstrated equally by men and women. I do not doubt that violence in relationships is a real and serious problem and I do not doubt that the majority of physical violence is perpetrated by men against women. But emotional abuse, ‘gas lighting’, unreasonable behaviour are common to both sexes.

Many of my cases chart a drearily predictable course. I will represent a woman who makes a large number of allegations, often over many years. There will be nothing by way of corroboration from either the police or the medical profession. There will be nothing by way of statements from family or friends. The relationship with the father has utterly broken down; often he will contribute to this by behaviour which can be measured objectively as selfish and unkind. But when the allegations encompass drugging, rape, serious physical violence and there is literally nothing before the court but the assertion of the ‘victim’ that this is is so – what do the lawyers or indeed anyone expect the courts to be able to do with all this?

The group make the following suggestion for reform:

Training for the judiciary to better understand domestic abuse, particularly the nuances and subtleties of abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.

To which I make the following reply. Judges don’t need ‘training’ to know what violence is. They live in the world. They know what violence is. What they need is evidence on which to base decisions. The family justice system simply is not set up to offer inquisitorial tribunals to unpick relationships that may span decades and involve considerable amounts of ‘nuances and subtleties’.

 

Conclusions – we need the data

This polarisation of the debate into women = victim and men = perpetrator and everything must then stem from that, has done real harm. We can see this in the actiivities of such groups as Fathers 4 Justice. it is easy to dismiss them as posturing idiots but the anger they feel didn’t come from no where.  To simply remove men from the debate – as the Panel membership appears to do, Mr Justice Cobb as the lone exception – is to fuel this kind of anger and distrust to the detriment of us all.

It is a great shame as I agree with and think very sensible many of the recommendations made by the group of lawyers. Removal of legal aid has caused enormous problems. Findings of fact need to be held far more often and far earlier. But I don’t accept the problems in the system are due to ‘lack of understanding’ from judges about issues of violence. They stem more from the very clear understanding by judges of their duties to the Rule of Law and procedural fairness. These are concepts vital to any society worth living in.

The real problem for the FJS is that our judges do not have the infra structure to support them to make speedy and robust decisions.  I accept that cases drag on and there is little by way of support either during or after the court process.

However, without establishing a firm factual foundation for investigation, any proposed ‘three month’ inquiry into all of this is clearly doomed. Because we just do not have a consensus about what is really going on. Groups support women will say false allegations of abuse are very rare, groups supporting men say entirely the opposite. Just what is the evidence about the rate of false allegations and how do we find this data?

The group of lawyers say, rightly:

There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.

What the group of lawyers recommend and I heartily endorse is this:

that robust recording of decision making is made by the Judge, and collated by an appointed court recording officer so that we can begin to assess the scale of the problem and so understand how we must deal with it.

This will be the only recommendation of the Family Inquiry that will make any sense at all.  In my view.  Nothing will change unless it can be identified and faced.

 

3 thoughts on “Judges don’t need ‘training’ about violence – they need evidence.

  1. Angelo Granda

    A Parent’s View.

    I agree with much of what the post -author has written. Serious allegations require some kind of ‘real’ evidence.

    For criminal charges, Police have to carry out an impartial, full forensic and expert investigation of allegations,establish all available facts and make an assessment of risks. It is their duty to do so. They are then able to present ‘real’ evidence to the decision-makers.

    L.A. child-protection staff are not trained or able to do so ; they are not impartial and anyway, they don’t have the power or the TIME to arrest,break down doors, carry out surveillance,confiscate evidence and sequestrate evidence. If they do take the time to question those who make allegations or the alleged perpetrators, they don’t have the skills or the equipment to question evidence fully and record statements,print them out and obtain signatures . They don’t even keep reliable minutes.
    They aren’t suited to investigate and obtain ‘real’ evidence and that which they do is not tested adequately . Any value it has is relegated to little more than hearsay.
    The L.A. staff also have a ‘crystal ball ‘ mentality and make no attempt to CHECK hearsay evidence and data ( such as that on computer) with which they predicate and make judgments.

    ‘Anecdotes are not data’. I haven’t heard that cliche before . In my opinion, anecdotes are either true or untrue.Anecdotal evidence is often put onto computer databases,however and later are disguised as facts and presented to Family Courts. Not all data is factual .

    What Judges need is ALL the facts; that is the evidence on which to base decisions. The system is not set up to supply it and ,sadly, the courts themselves do not have the time or inclination to get to the truth. It’s only a civil process, after all. The Courts are only civil ones.

    I think it is high time lawyers face the realities here and direct the attentions of the Public Inquiry to them. Use the same language as the criminal barristers who have been protesting.

    The judicial system is broken! Even when ALL the facts are presented to the Court , the reality is that because of the legal aid problem and the shortage of court time, it is not possible to read all the evidence; pre-proceedings, the lawyers themselves don’t have the time necessary to read and test all the evidence to the high standard necessary to put their clients cases fairly. Family Courts are little more than gossip-shops dealing in hearsay evidence,predication , subjective assessments etc. and the Judges admit themselves they are unable to unravel all the lies,half-truths and stories they are presented.

    Precise action suggested. a) limit the powers of Family Courts.b) demand fair trials.The funding problem has to be the priority. Hearings are useless if lawyers aren’t able to do their jobs properly. They can’t be expected to do it for nowt!

    Reply
    1. Sarah Phillimore Post author

      It is rightly said that ‘anecdotes are not data’ because they may not be reliable. someone’s subjective account of the system is not as good as research that takes into account many accounts and looks for similarities and differences. Of course, I think my experience over many years carries a bit more weight than mere ‘anecdote’ but I also have to accept that if I am prejudiced or make false assumptions, my ‘data’ may not be reliable.

      That is why I hope the Family Inquiry Panel just make one simple recommendation – for research into these allegations that judges ‘ignore’ evidence about violence. I and a lot of other family lawyers say that isn’t true. Some family lawyers and a lot of parents disagree. We can’t square this circle by trading anecdotes. The time is long overdue for proper evidence about this so we can fix what needs to be fixed – and there is plenty. I just don’t think judges ‘ignoring’ violence is one of the problems as I have seen no evidence of this in 20 years.

      Reply
  2. Angelo Granda

    Hopefully, at the end of the Public Inquiry, the panel will announce in no uncertain terms that the judicial system is broken.

    Thus it fails all the tests as to articles 6 and 8, ECHR. The ‘best interests’ of children which the Judges cite to interfere with family life are not fair and judicial.The best interests referred to are political opinion.

    As a result ,sanctions imposed regularly are unlawful ones and as such article 3 is activated.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.