Assessing Risk of Harm to Children and Parents in Private Law cases.

Final Report of the Ministry of Justice 2020

In May 2019 a ‘3 month inquiry’ into issues of domestic abuse and applications to court about children was announced by the Ministry of Justice. I expressed considerable scepticism at the time, not least scoffing about the wholly unrealistic timescales proposed.


In that at least I can see I was correct. The final report was published at the end of June 2020 so a 13 month process. Even that seems astonishingly quick to me. It is without doubt an impressive piece of work, covering a great deal of important and necessary conversations about the family justice system. All practitioners need to read it, digest it and think about it carefully .

I will not pretend that I am about to unpick it line by line. But I thought it might be interesting or helpful to share my immediate concerns.

In May 2019 I said this about the real problems facing the family court system:

Family courts are not the arenas for frightened or angry people. An adversarial court system that requires proof is a hard place to be for those who believe themselves to be or who actually are victims of violence.
I quite accept that most of us entering into a relationship do not at the outset start gathering evidence of our partner’s appalling behaviour. One of the real evils of coercively controlling relationships is the very long time it can take to work out what is going on and to gather the resources and courage to leave.
There appears to be widespread public ignorance about how the forensic process operates and how you prove an allegation in court. That is not anyone’s ‘fault’ but it is a great shame more people are not prepared to accept their lack of understanding before diving into the debate.
But the elephant in the room is the removal of resources. Social workers and Cafcass need time and space to conduct investigations, to thoughtfully reflect, and to build relationships with parents. Courts dealing with private law disputes need to offer judicial continuity and swift fact-finding hearings – which currently doesn’t happen because we don’t have enough judges or courts.
The removal of legal aid from private law family cases has led to a huge rise in the number of litigants in person, with obvious and serious problems for how cases are managed. This removal was endorsed by Parliament in 2012 with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Research by Citizens Advice in 2015 stated what we all know to be true: “Restricted access to legal aid is one of the biggest barriers to support for victims of domestic abuse in England. In their work helping victims of domestic abuse, only 12% of advisers reported being unaffected by the changes that came into force from April 2013.


The aim of the report is to provide an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children. These are known as ‘private law children proceedings’ because they are a dispute between private individuals and not any agency of the State.

The report sets out its summary and recommendations. The expert panel received ‘over 1,200 responses’ from individuals and organisations and held roundtables. The evidence focused on domestic abuse.

The report noted key themes

  • Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
  • The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
  • Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
  • An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self- representation, with little or no involvement of the child.

I agree with much of this. But there are some things summarised there and discussed in greater detail in the body of the report which I find frankly surprising in any document co-produced with a number of senior laywers.

Pro contact culture and other curious statements

The Panel say this about pro-contact culture

Previous literature has identified the ‘pro-contact culture’ of the family courts and we have adopted this terminology as appropriate to capture the systemic and deep-seated nature of the courts’ commitment to maintaining contact between children and non-resident parents. A ‘culture’ describes the particular set of beliefs and behaviours (sometimes unconscious or taken-for-granted) of a group of people. Most institutions develop a distinctive culture over time, and the family courts are no exception. This does not mean that all members of the institution necessarily agree with or conform to all aspects of the culture. But it does mean that there is a strong pressure to conform, and that cultural change does not happen easily. ‘

The pro-contact culture’ is not some whimsy or consequence of submission to the patriarchy. It is the law. It has long been the law. It is enforced in various decisions of the European Court. I do not understand why the law is reframed here in clearly pejorative terms as a ‘culture’ .

Children have a right to a relationship with both parents, so long as they are safe. I agree however, that a system starved on resources and which operates on an adversarial platform may end up giving a crude prominence to the presumption that contact is in a child’s best interest.

I also reject and am astonished to see this comment about liaison with the criminal justice system:

Silo working can result in evidence of abuse accepted in one system, for example the criminal courts, not being acknowledged or effectively engaged with in the family court.

Police disclosure and findings of the criminal courts are vital pieces of evidence and never overlooked in any case where I am instructed. Of course, getting the information from the police quickly is another matter. Again an area where lack of resources make it very difficult for the family court system to do its job.

The Panel comments:

Many respondents reported that regardless of the particular circumstances, even where the most serious allegations of domestic abuse were raised, courts expected that parents would work together to facilitate contact arrangements.

Raising an allegation is not the same as proving it. Where serious allegations are made the court needs to determine them by way of a finding of fact. I accept, and this has been known for some time, that early findings of fact are often essential. An assertion of something another does not accept and which has not already been proved, is not a fact and never can be ‘a fact’.

We can ‘raise’ whatever allegations we like. To ask allegations to impact on the proceeses of a legal system they have to be proven. I am very surprised and uneasy to read a phrase like this in a document produced by the Ministry of Justice.

The value of self selective lived experience.

This is without doubt my key concern. I am worried that what I feared has come to pass. There was no scrutiny of the reliability of the accounts given to the Panel and yet such indivudal accounts represented the vast majority of responses to it. 87% of responses ‘in scope’ were from individuals with personal experience of private law children proceedings – mainly mothers and their families.

The report makes it clear the Panel ‘were unable to review individual case files’. But reliance on evidence from an entirely self selecting group apparently causes little concern as this was ‘supplemented with a literature review and a review of relevant case law.’ So I am not quite sure what the Panel mean when they later say ‘In practice, the large number of responses meant that the panel needed an extra six months to ensure that the evidence could be thoroughly analysed and reviewed’.

What exactly were they reviewing? Seeing case law and ‘literature’ through the lens of ‘lived experience’ that you accept as true without investigation sounds to me suspiciously like the seeds of a self fulfilling prophecy.

It is clear the responses from the lawyers were different to the responses from the mothers:

Submissions from legal professionals described their experience in cases involving abuse which varied in persistence and severity, whereas most mothers described relatively severe and sustained abuse, almost invariably involving coercive control.

No question appears to be raised as to why the lawyers saw things so differently. I think it is very important to robustly test assertions which are so serious. Such as this –


Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many submissions detailed the long-term impacts of this abuse manifesting in physical, emotional, psychological, financial and educational harm and harm to children’s current and future relationships.
Many respondents felt that the level of abuse they and their children experienced worsened following proceedings in the family court. There were concerns that efforts to report continuing abuse were treated dismissively by criminal justice and child welfare agencies because of the family court orders. Many respondents also highlighted the negative impacts felt by children who were compelled to have contact with abusive parents, and the burden placed on mothers and children to comply with contact orders compared to minimal expectations on perpetrators of abuse to change their behaviour.

Again, there seems to be no attempt to clarify the nature and status of the alleged victims and perpetrators. Were the ‘perpetrators’ referred to here FOUND TO BE SO in either a criminal or civil court? Or are we back in territory of allegations being raised? I have never known a case where a person found to have perpetrated serious abuse was simply left to get on with it and unsupervised contact ordered.

But I have experienced many cases where fathers never had direct contact with their children again after allegations raised about their behaviour by the children’s rmothers.

The Panel does recognise the limitations of its approach, but concludes that it doesn’t impact their ability to make robust recommednations

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.


I think this is powerfully naïve. I am particularly concerned by this comment:


…majority with detailed descriptions that appeared to provide authentic accounts of individual experiences.

‘Appeared to provide’ just isn’t good enough when it is used to scaffold the following comments. This has never been my experience in any private law case over 20 years.

Many respondents argued that in ordering direct contact in the majority of cases, the court ignores, dismisses and systematically minimises allegations of domestic abuse and simply treats the case as if domestic abuse was of no continuing relevance. Too often, even where findings of domestic abuse are made, the submissions suggest that victims are told to ‘move on’ and to progress contact, even though the perpetrator has shown no or minimal effort to accept or engage with the findings made against them. Thus, the victim is left with the responsibility of ensuring that contact takes place, including liaison with the abuser, and sometimes against the expressed wishes of the child.

We can see how this is being interpreted beyond the Ministry of Justice and how the Panel’s willingness to accept the unverified accounts of Respondents may now play out.

“The Court Said” has already launched a petition. This is an organisation supported by a number of women with ‘personal’ experiences of the family court system. Two of these women are Samantha Baldwin and Victoria Haigh, both subject to serious findings in the family court about the harm they inflicted on their children and both enthusiastic self identified victims of the family court.

A self identifying ‘journalist’ Richard Carvath who also supports the Court Said has just been convicted of harassment due to his campaigning against the family courts which he believes is justified because of the ‘detailed’ accounts given to him of injustice.


It is or should be abundantly clear that ‘personal’ experiences do not provide the whole story. And that those with axes to grind need to be treated with polite scepticism.

If the accounts of the Respondents to the Panel are simply accepted, its clear what The Court Said wants to happen now. I quote from the petition.

The government needs to launch an immediate case review and a mechanism for recourse for victims affected by the crisis. Thousands of children have been removed unlawfully from victims of Domestic Abuse with no prospect of reversing the situation. Many more thousands are living in fear with unsafe Court decisions impacting families dealing with a Domestic Abuser. Without recourse, this will continue.
The report publishes the harms endured by survivor families in the Family Court system. It is time to right the wrongs and provide compensation for victims, whose lives, families and futures have been forever marked, or even destroyed by an unsafe decision in the Family Court.
We call upon the government urgently to immediately review all cases that have gone before the proposed reforms, and the ones that will suffer during the transition to reform. We call upon the government to reverse decisions where possible and provide compensation to those affected by the crisis. #thecourtsaid

Conclusion

The Panel Report sets out a lengthy list of recommendations and hopes, some of which sound sensible, some a little more optimistic – the Panel should probably have considered a little more carefully the impact of the ECHR on their recommendation to end a presumption of parental involvement for e.g.

But no one could argue in good faith with efforts to make sure that the wishes and feelings of children are properly heard and they are not put under pressure by either parent to toe any particular line.

But I am afraid I cannot read something like this without a hollow laugh

The panel hopes that its recommendations will empower judges, lawyers, Cafcass, Cafcass Cymru and other family justice professionals to work to their best potential in private law children’s proceedings, and above all, that its recommendations will benefit children and parents experiencing domestic abuse.

If parents in the system don’t have lawyers, if there is no where in the court bulding to sit and talk, let alone wait in safety, if CAFCASS don’t get the time and resources they need to do their job properly, if anyone’s account is simply accepted without challenge, all of this is meaningless.

Resources are rightly identified in this report as a major stumbling block to any effective change and I agree wholeheartedly with this

The panel believes that the shortage of resource affects the whole system, but is most concerning for domestic abuse cases, which are likely to be more resource-intensive to address than non-abuse cases. Safeguarding requires time and resources to do a detailed and careful risk-assessment; the need for special measures requires adequate court facilities; fact-finding hearings require additional judicial time; and additional interventions may be required to make any child arrangements safe. This all costs money. The scarcity of resources mean that the system finds it difficult to address the additional demands presented by domestic abuse cases:

So what will be done about that?

Nothing. No doubt any spare cash in the system will now go to setting up further serious case reviews as is urged by ‘The Court Said’. This seems to be how we roll now as a nation.

I hope I am wrong. But I doubt I am. Let’s meet in a year’s time and see what came to pass.

EDIT July 4th 2020. The Government’s plans to implement its reforms are set out here. Their plan seems to involve yet another pilot scheme.

I do hate being right all the time.

Further reading

CAFCASS tool for assessing domestic abuse

The Empathy Gap 14th June 2020 – Commentary on Adrienne Barnett in “A genealogy of hostility: parental alienation in England and Wales”, Journal of Social Welfare and Family Law (Jan 2020). The paper discusses the role of parental alienation within the English and Welsh family courts.

The Empathy Gap 11th June 2020 – Commentary on “U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?”, By Joan S. Meier, Journal of Social Welfare and Family Law 42:1, 92-105 (2020)

9 thoughts on “Assessing Risk of Harm to Children and Parents in Private Law cases.

  1. Rachel

    I believe if you took the time to speak to the women in The Court Said – you would realise there are thousands of cases where children have been sent into unsafe, unsupervised contact with violent perpetrators, where there is substantial evidence of violent, physical and sexual abuse. The courts, dodgy parental alienation experts, parental alienation lawyers ($$$) have all created the pro contact culture, and it’s gone too far – Mothers are being re-traumatised, children are being traumatised, and hurt, some cases ending in fatalities. Its time to protect the children (like Samantha Baldwins who are clearly in danger to anyone who can dig a bit deeper than a BBC article). Its time to curb abuse, not sweep it under the carpet as it has been done for years in the family court. See through the charm and charisma of the middle class, narcissistic perpetrators who enamour lawyers, judges, barristers, therapists. Its time to start protecting victims and children which is what the family court review intends to do. The covering up and enabling of violent and sexual predators in this day and age just sickens me.

    Reply
    1. Sarah Phillimore Post author

      I have spoken to women who support The Court Said. Victoria Haigh sent a fake solicitors letter to sue me for £300K. Rachel Williams repeatedly insults me in crude terms on social media from behind a block and contacted a doxing site to give them information about me. Others have threatened me, insulted me, told lies about me.

      There is a big problem in the DV Sector and unless it is acknowledged, the perpetrators identified and challenged, you will never, ever succeed in your aims. There is no ‘pro contact culture’ – this is the LAW. Men and women do cruel, stupid, horrible things to each other and their children every day. The family justice system struggles without the resources or tools to manage what are essentially not legal problems.

      Reply
      1. Rachel

        I believe these women have a right to be angry/passionate when you look into their story? I could forgive any one of them. Its hard for anyone to imagine what we have gone through if you haven’t experienced it. The judge in my case diminished egregious, violent admitted abuse (involving knives and hammers) and documented I left him because he cut up my handbag. He then sent child into unsupervised contact. (When I claimed abuse, he counterclaimed PA and that shutdown my claims of abuse, evidence set to one side). The child then got hurt during contact. PA welfare reporter then tries to force terrified child back into arms of parent who caused him to vomit every time he had to see him. Eventually psychologist confirms father is psychologically unsafe and dangerous. All contact stopped. Years of unsafe contact due to PA supporting judge & welfare reporter. My story is one of thousands. Children are really suffering unnecessarily due to PA being used as defence to DA. I just wish people would seek understanding more. The denial / dismissal of the abuse is hurtful to all those fighting for change which ultimately protects children. The abuse in all these cases is real and its horrifying.

        Reply
        1. Caron Koss

          Rachel, you wrote, “My story is one of thousands. Children are really suffering unnecessarily due to PA being used as defence to DA. I just wish people would seek understanding more. The denial / dismissal of the abuse is hurtful to all those fighting for change which ultimately protects children. The abuse in all these cases is real and its horrifying.”

          I am so very sorry that you have experienced this, I’ve no doubt that the courts in the UK need to be overhaul just as they do here in the states.

          According to Dr. Jennifer Harman, I am one in 22 million parents in the US alone who are known as the targeted parent. I too was married to a Narcissist. I was not the one to diagnose him but the woman who married him after me, a Harvard trained clinical psychologist did. She divorced him after 3 years of marriage and told me of the abuse she had gone through and asked me how could I have gone through 15 years of it.

          The unfortunate thing for me was within a few months of their separation, my children ages 13 and 17 at the time became psychologically enmeshed with him. Ultimately, they became brainwashed. What I didn’t understand was he had been grooming them for years and within one year of their divorce, I had lost them.

          Prior to his second marriage, my ex had taken me through the courts 3 times, a small number in comparison to other parents all before he remarried.

          Not once did he ever cry Parental Alienation.

          My children are now 27 and 31. They still live with their father as they cannot fend for themselves in the world and they haven’t spoken to me for over 13 years. Through overt and covert means they have been psychologically manipulated into believing horrible things about me and have accused me of the most heinous crimes all of which are absurd and untrue.

          My children have been brainwashed! If adults can be brainwashed by people such as Jim Jones, then how can a child resist a parent?

          Struggling not to end my life, It took me years to finally find out what I and my children had been going through. There are many names associated with this worldwide, transgenerational phenomenon, some call it Coercive Control, Domestic Violence by Proxy, Hostile Aggressive Parenting, but mostly it’s known as Parental Alienation.

          I have no doubt that men, as you say have used Parental Alienation in the courts to gain control! I assure you (because I have seen it) that women do it as well …

          because mental illness has no gender.

          I was at two conferences last year on Parental Alienation with 400 attorneys, judges, therapists, psychologists, researchers, medical doctors, parents (both mothers and fathers), grandparents, and news people from all over the world. Parental Alienation (PA) is real!

          PA is a distinctive and counterintuitive form of psychological and family violence towards both the child and the rejected family members. It occurs regardless of nationality, religion, socioeconomics, race, or gender. It is is induced psychological splitting in a child … an alignment or enmeshment. Alienated children display unjustified contempt and an attitude of entitlement towards the targeted parent and have a perception of an “all-wonderful” alienating parent and “all-bad” targeted parent. This is a dysfunctional coping mechanism which if not addressed leads to an unstable personality disorder and disrupts social-emotional development throughout a child’s life as a consequence of Parental Alienation.

          Parental Alienation is an attachment disorder caused by a psychologically unwell parent. They will overtly and covertly cause the child to feel that the other parent is unsafe, unloving, and unavailable. Mental illness has no gender.

          Millions upon millions of parents around the world are experiencing Parental Alienation. Statistically, 4-5% of school children in the US under the age of 18 are experiencing some level of mild, moderate, or severe alienating tactics and PA is 3x more prevalent than children on the Autism Spectrum.

          According to experts, it is psychological and emotional child abuse and is JUST as injurious as physical or sexual abuse and the World Health Organization (WHO) recognizes Parental Alienation.

          This is not a divorce issue. This is not a gender issue. This is not a custody or a parental rights issue. This is a mental health issue that is affecting our children around the world.

          It truly is child abuse!

          Reply
          1. Sarah Phillimore Post author

            thanks Caron. I agree that parental alienation exists and it is practised by both men and women. We have to start focusing on the harm done to children, not arguing that one sex is better or worse than the other.

        1. Rachel

          Also, the ‘pro contact’ culture has been proven in recent academic research ‘A Genealogy of Hostility’ and it lays out exactly how PA supporting lawyers/dodgy PA experts get Gardners PAS into the courtroom and use it to shut down a mothers evidence of abuse. If you read that you will understand very clearly why mothers who have experienced family court in last decade desperately need change to protect children from abuse. There is a systemic bias in the system and it is proven – surely you are are aware of it.

          Reply
  2. STEPHEN MURPHY

    1. Legal aid is available for IPV cases.
    2. Narcissistic parents, lie to get it.
    3. Good parents are destroyed by false allegations.
    4. No recourse is enacted against those lying.
    5. Children do not reject parents, even abusive ones, they are psychologicalally abused into doing so,by their primary carer in most cases.
    6. The lying drips into the children ( folie a deux) ICD 10 F24 transferred delusion from the primary, resident parent , o to the innocent child, Emma Katz has produced a report that shows this, she can’t actually see it as her agenda is money.
    7. Incest, physical violence, over a prolonged period, neglect and narcissistic parenting are the only possible reasons a child is disengaged.
    8. These reasons will and can be identified by a trained psychologist or psychiatrist.
    9. The child is being used as a weapon to exact coercive control over the ex partner, this is ABUSE, against the NRP, not the other way around.
    10. If you give legal aid to false accounts of DV with no punishment for this purgery and fraud then open the floodgates for more, when you can cut the other parent out of the children’s lives in just as fraudulent a way.
    11. Diagnose and investigate, with criminal style evidence or throw it out, guilty until proven innocent is backwards.
    12. Any parent found lying should lose their freedom and their children. There’s a law there but its never enacted.
    13. Public shaming and police records need to be linked, these people who lie to court, refine their craft over many years and many partners. Repartition of their VICTIM status shows its they who are the problem.

    I have seen enough incompetence and abuse over my time involved to know its a loaded deck, against the loving parent who’s life is wrecked simply because the left their ex partner, narcissistic collapse, is obvious. Its a mental problem.

    Reply
  3. Vincent McGovern

    What a pleasure it is to read an article written by an experienced Barrister, who is rightly concerned about Justice and children’s welfare. For the past few decades the drip drip of politicisation and militarisation of domestic violence has dominated the landscape. After obtaining 5 Ombudsman investigations (3 Parliamentary, 2 into Cafcass) I know only too well how the dominant culture among many agencies who are the gatekeepers to the family courts is ‘remove dad at the mothers request.

    ‘ The UK has by far the worst outcomes among developed nations for children’s welfare post divorce or separation. Mainland Europe is way ahead, Finland with a coalition Government of 5 parties, all female led, is light years ahead of the UK re children. As an MEP from Austria commented during my visit to the Euro Parliament in 2014 on this matter, “It’s obvious that in the UK the welfare of the child means the welfare of the professionals at the expense of the child.”

    We need to replace ‘child endangering gender discrimination’, with ‘gender neutral impartial professionalism.’ The current adversarial system is a disaster for children and parents, legalised cage fighting. There are decent people working in the system, unfortunately the culture is dominated by toxic gender politics. And parental alienation is a curse from hell, some innocent and naive mothers also suffer terribly here.

    Reply

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