How pushing the ‘victim/perpetrator’ dichotomy in the Family Court system hurts us all

This is a talk delivered by Sarah Phillimore at the Families Need Fathers conference in London on September 14th 2019

The abstract concept of ‘Justice’ is often portrayed as the Greek goddess Themis, usually depicted holding a sword and scales. This represents her ability to cut fact from fiction with no middle ground and the need to be balanced and pragmatic. However the blindfold is a modern addition.  It symbolises that justice must be blind i.e. applied equally to all who come before her.

In recent years there appears to have been an orchestrated campaign against both the scales and the blindfold, when it comes to issues of violence in intimate relationships before the family courts.  For the first time in my 20 years now as a lawyer, I see not merely journalists and campaigners showcasing their lack of understanding of law and procedure – I see them joined and supported by actual politicians and actual ‘Inquiries’ established by actual Government departments. I and others have commented critically about this elsewhere

If this sounds harsh I am sorry. I do not say this to diminish the suffering of victims of abuse. Violence in relationships is common and is a blight on our society. I agree that a parent who is abusive to anyone, let alone their child’s other parent, is not a good parent and they should not have unfettered access to a child without some clear evidence that this is safe.  I agree that women are more likely to be the victims of violence at the hands of male partners. Further, I would be surprised to find anyone who doesn’t think it outrageous that people risk being cross examined directly by those who may be using the court system to further abuse and humiliate. Happily, in my experience at least this is not commonplace – Just out of interest – how many people in this room have either questioned directly an ex partner in court or been questioned directly by an ex partner?

We must be able to say the names of those children who have died painful and frightening deaths at the hands of their adult carers, when the child protection system failed to ask the right questions or properly assess risk – Ellie Butler, Alexa-Marie Quinn, Peter Connelly, Victoria Climbie, Elsie Scully-Hicks Daniel Pelka

Even this short list is too long. When the child protection system fails it is their faces that we must see.

 

 

 

 

 

 

 

But. It is clear that children risk being hurt and killed by men AND women. Even in that short list above shows women are capable of hurting and killing children, or of deliberately lying to protect the men they know are hurting them.

The only fool proof way to prevent children from pain and suffering is to prevent them from ever being born.  There is no system that can protect against all risk. We need to do better – and I will discuss today how we can do that – but the answer to a system that you find unsatisfactory and potentially unfair is NOT to agitate to make it even more unsatisfactory and unfair.

I don’t agree the current crop of campaigners will achieve anything to make victims and their children safer. The MoJ Inquiry and the Sunday Mirror ‘campaign’ etc etc etc is a call to examine or change laws which do not actually exist.  I am repeatedly told via social media that we ‘must’ see a change to the law that permits ‘snap decisions which promote contact at all costs’. This is not, never has been and never will be the law.

To campaign on such a false premise is a waste of time and energy. More sinisterly, the ‘changes’ which people want to see, appear to involve very significant challenge to the integrity of both the rule of law and due process.

  • by describing complainants as ‘victims’ at the very outset.
  • Assuming that these ‘victims’ are women
  • By inviting under the campaigning umbrella a number of women who have been found to have caused very serious harm to their children, yet rejecting those findings as yet more ‘failings’ of the family courts. [For comment on Victoria Haigh and the very many judgments against her, see this post from The Transparency Project. ]

 

I believe Brexit has unleashed something very harmful into our attempts to talk about serious issues; experts are disdained, facts are distorted and feelings are what matter. This joined forces with another trend – the identification of ‘complainants’ as ‘victims’ before any allegation is either accepted as true or found to be so. This first emerged in the criminal justice system; tragically as a very well intentioned effort to combat some of the truly disgusting treatment meted out by police and lawyers to those who complained about sexual assault.

However, the law of unintended consequences continues to operate, and as Richard Henriques warned and the the trial of Carl Beech showed, to designate people as ‘victims’ at the very outset of any investigative procedure, has the potential to cause serious and damaging consequences for the integrity of what follows.

The time has long gone for those of us who are deeply troubled by all of this to attempt to reclaim the narrative, to restore the position that words have meaning. They are important. Because language shapes thought – not the other way around.

There are two fundamental and serious problems in using the word ‘victim’ to describe a complainant whose allegations have either not been proved or have not been accepted. It is unfair to all who participate in court proceedings.

  • setting up a complainant as a ‘victim’ at the inception of the court process gives that person a wholly unrealistic view of how their evidence may be treated in an adversarial court process. It is not enough to simply assert something – you must prove it.
  • Treating one party as a victim prior to any findings made about the factual basis for that status, risks undermining the fairness of the proceedings and casting the respondent as a ‘villain’ at the outset.

So I will attempt today to go back to basics.

  • What is the rule of law? What is ‘due process’? And why are they important?
  • What is evidence? And how does the family court use it? How should you present it?
  • Where is the system failing and what can we do to make it better?

 

What do we mean by the ‘rule of law’ and ‘due process’ ?

The Secretary-General of the United Nations defined the rule of law in this way:

a principle of governance in  which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies (S/2004/616).

The rule of law is one of six of the key Worldwide Governance Indicators (The others being Voice & Accountability, Political Stability and Lack of Violence, Government Effectiveness, Regulatory Quality, and Control of Corruption).

‘Due process’ is under the umbrella of the Rule of Law:

  • procedural due process – legal proceedings which are carried out in accordance with established rules and principles; and
  • substantive due process – legal proceedings should not result in the unfair, arbitrary or unreasonable treatment of an individual.

If you are in any doubt as to the importance of the ‘rule of law’ or due process, visit and spend some time in one of the countries which doesn’t have either.

 

So what IS evidence? And how does the court treat it?

I make no apology for going back to basics, such is the staggering level of misinformation  I am seeing on a daily basis from those who purport to have positions of authority and credibility.

Evidence is anything that you experience, read or are told that causes you to believe something happened. It is the information used in court to try and prove something. It can be obtained from documents, objects or witnesses.

Establishing the evidence in a case allows you to ask ‘what does it prove?’. A thing that is proved or accepted then becomes a fact which is relevant to the outcome of the case.  We need to know the facts in order to decide what consequences follow or what the risks are and how they are to be managed. The Family Justice System (FJS) puts proof of facts at its heart.

In 2013 Mr Justice Baker addressed a conference asking  – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation.

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

This does not mean of course that our current system is without flaws. ‘Fact finding’ may sound simple but is anything but. The foocus on most law degrees is dissection of the lofty legal decisions of the superior courts – but when they hit the ground in practice, the vast majority of legal endeavours will involve the identification and processing of facts.

Understanding how to identify and apply facts in court is complicated.  Jerome Micheal, the author of ‘The nature of judicial proof: An inquiry into the logical, legal, and empirical aspects of the law of evidence’ summarised his view of the ‘theoretical basis of the arts of controversy’ in 1948, pointing out that there are very many things we need to appreciate when we approach evidence in a court. Among others, we need to understand probability, causation, the distinction between direct or perceptual and indirect or inferential knowledge. We base much of our understanding on presuppositions about human nature and behaviour – these often change over time or as research develops – but we need some basic knowledge about how humans think and react.

Judges often say findings of fact must be based on evidence, not speculation – Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12) but as that case illustrates, the line between the two is not always clear or easy to find and obviously involves some subjective discretion form the decision maker.

However, regardless of all the obvious imperfections of the fact finding exercise,  we have as yet, no other system to deal with contested allegations.  I am not sure what else could be suggested – we return to trial by combat? Or in the modern era presumably this will be ‘trial by Facebook’ – whoever can garner the most ‘likes’ and ‘shares’ or the biggest amount in their crowd funder will ‘win’. I have a horrible suspicion that this is exactly how some people think it should work, as we have seen in both the Minnock and Baldwin cases.

But unless and until Parliament decides to dissolve the courts of law in favour of the courts of public opinion, we need to focus on what we have got.

 

The family court process

Deciding what ‘weight’ attaches to the evidence will comprise a mixture of objective and subjective elements. Judges have a pretty wide discretion; it is not a ground of appeal that you didn’t agree with the judge’s decision. You have to show the judge was wrong – he or she took into account the wrong things or ignored the right things. Just because a Judge fails to explicitly mention a particular point, doesn’t mean the appeal court will allow your challenge to succeed. A useful example of this can be found in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) where the Recorder was criticised for not making explicit reference to some parts of PD 12J.

Family courts operate an ‘adversarial’ as opposed to ‘inquisitorial’ system. This means that the Judge can only decide the case that is in front of him or her. The Judge does not take on an investigative role. Evidence is presented to the court and challenged by the parties as ‘adversaries’ in the court process. Claims that we are in fact ‘quasi-inquisitorial’ seems to mean in practice to amount to little more but that lawyers are asked to tone down their combativeness a notch.

The court must take into account all the pieces of evidence in the context of all other evidence, The civil standard of proof applies, which means facts must be proved ‘on the balance of probabilities’: If it is more likely than not that the thing happened it is proved – see Re B [2008] UKHL 35). This is known as the ‘binary system’ as there are only two options  – true or false. I appreciate that there is legitimate criticism of this, particularly given the low standard of proof and again I would like to see more official recognition of this, rather than the predominant congratulatory back slapping that the family courts have ‘discovered the truth’. 

Over time rules of evidence developed, to attempt to make proceedings as consistent and fair as possible. For example, in most civil cases ‘hearsay evidence’ is not permitted – that is the evidence of those who tell the court, not what they know themselves, but what they have heard from others. A fundamental point of fairness is that if you don’t accept the evidence offered against you, you must have the ability to challenge it. Its obviously very difficult to challenge the words of someone not in court. For this reason if hearsay is accepted in family court proceedings, the judge must think very carefully about the weight to be attached to it. 

 

Expert Evidence

particular bone of contention revolves around the use of experts – as these experts are often in the ‘soft science’ field of psychology.  I accept that the use of experts is not without controversy and I have seen a worrying lack of humility from some about the strength of their conclusions. However, it’s important to remember that ‘the expert advises but the court decides’ . Expert evidence is just one piece of a jigsaw that a judge needs to try and put together – it is rarely the entire answer to the case  – see Re T [2004] 2 FLR 838.

As Professor Luthert commented in R v Harris and Others [2005] EWCA Crim 1980: It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.

 A judge does not have to accept an expert’s evidence but must explain why the evidence is not accepted. See the comments of Lord Justice Ward and Lady Justice Butler-Sloss in the case of Re B (Care: Expert Witnesses) [1996] 1 FLR 667

I accept we need a greater awareness of and willingness to challenge experts on the basis of confirmation bias or scientific prejudice but as barrister David Beddingfield comemented in 2013 –  this can be tricky  – see Expert Evidence – Another Chapter in a Continuing Story in Family Law Week:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent tojudge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

 

Practical problems in family cases – Documents versus words

The uncontroversial ‘gold standard’ of evidence is the contemporaneous documentary record. And this is the fundamental reason why allegations about what did or did not happen in intimate relationships can be so difficult to prove in court, even on a low standard of proof. Many cases I have dealt with involve a bitterly fought battle between parents who make allegations each against the other which are starkly different. It is difficult to discern patterns of behaviour and very difficult to cross examine on a bare denial.

Relationships, which may have endured over decades, may offer the court little evidence but the words of the parties themselves.  Not many of us – I hope – enter into a relationship expecting to keep a running log of all the bad behaviour of our partners.

I was asked a very interesting question about this issue of ‘collecting evidence’

…. would it help to suggest that people keep diaries, records, photos, dates, times, places – particularly when there are already difficulties i.e. any statements may be seen to be more credible if they are detailed and based on contemporaneous notes?

And my answer to that is ‘be careful’. You do run a risk that you may appear to be offering self serving or manipulated evidence. The courts are often very wary of recordings of arguments etc because of course it is difficult to know what happened immediately before the recording started. I have seen recordings and diary entries used with powerful effect but there is always a suspicion that such one party may have acted deliberately to antagonise the other in order to ‘collect evidence’ . I appreciate this is a very difficult position to be in – much abuse occurs behind closed doors and the abuser is able to present a very different face to those outside the relationship.

But it remains an inescapable truth that the more serious the allegations you make, the less likely is any court to simply accept them, absent any supporting evidence – see for example the case of Sivasubramaniam v Wandsworth County Court & Ors [2002] EWCA Civ 1738. The complainant described events to the court in this way:

part of a long-running criminal conspiracy against him involving members of Wandsworth Borough Council solicitors, lawyers and the chief executive and the finance officer and their assistants, members of the Wandsworth police, doctors in the hospitals, social workers, local court officials, judges and the lessee occupying the flat below his. The conspiracy involved unsuccessful attempts to murder him … It had included impersonation of him, had involved the fraudulent termination of four sets of legal proceedings that he was conducting, including the two with which we are concerned, while he was detained under the Mental Health Act or under medication thereafter, and continued to this day.

Unsurprisingly the court declared that no Judge would be able to accept such a version of events on one person’s word alone.

 

 

Gold Standard Evidence versus Witness Credibility

The courts have said for a long time that the best way of testing witness credibility is to test witnesses against objective facts which are independent of their testimony.

Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:

Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.

Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.

It is clear that people who have been traumatised by abuse over many years can behave in ways that reflect that trauma. They may not be able to be clear or consistent in their account.  They may have been too afraid or too ashamed to have told any one else so have no police or medical evidence. Or they may worry about ‘rocking the boat’ and risking losing contact with their children. Exposure to gradually escalating abuse and intimidation can become numbing and appear ‘normal’ – the ‘boiling a frog’ principle.

The massive problem for the court system however is that a tendency to be inconsistent or reveal crucial details at a much later stage is also strongly suggestive of someone who is lying.

Therefore the credibility of witnesses in family cases is often of supreme importance. It really matters how you come across when you give evidence. The appeal courts often say that they are at a disadvantage when examining a challenge to the decision of the first court, as they don’t have the same opportunity to assess how people gave their evidence as well as what they actually said. I think there is a danger – of which the courts are aware – that too much or improper weight can be put on demeanour as an indication of credibility.  They are two very different things –  ‘demeanour’ is concerned with whether or not a witness appears to be telling the truth.

It is usually unreliable and often dangerous to draw conclusions from demeanour alone. Is someone hesitant because they are lying or just naturally cautious? These problems are magnified where the witness is from a different country or culture than the Judge or is giving evidence through an interpreter. I accept that most of us still do have a view of how a ‘victim’ should present in court – particularly if that alleged victim is female, and I accept there is a risk that people who don’t fit the general stereotype of ‘victim’ – i.e. weak, timid, tearful – may find their accounts treated as less credible.

The case of Excelerate Technology v Cumberbatch [2015] provides some useful discussion about how Judges assess credibility. It is determined by looking at the following issues.

  • is the witness a truthful or untruthful person?
  • If truthful, is he telling something less than the truth on this issue?
  • if untruthful is he telling the truth on this issue? Not all liars lie all the time and motivations for lying can vary; see the Lucas direction.
  • If truthful and telling the truth as he sees it, can his memory be relied upon?
  • Is what is asserted so improbable that it is on balance more likely than not he was mistaken in his recollection?

 

 

What can we do to improve the situation?

So – what do we do? I accept that court arenas are unpleasant places at the best of times. Attempting to establish the truth or otherwise of your experiences in an abusive relationship is very far from the best of times.

The lawyers and judges must have a clear understanding of how to make proceedings as fair and efficient as possible:

  • have clear understanding of the requirements of PD 12J – see below.
  • Be wary of making any decision based on the demeanour of a witness or what a victim ‘ought’ to do
  • make sure vulnerable witnesses have a safe place to sit and wait before the hearing starts
  • make sure that issues of screens in court, video links and intermediaries are properly discussed in good time.
  • be more willing to impose serious penalties on those who are found to have lied in their evidence
  • list findings of fact as soon as possible and be prepared to take enforcement action as soon as it becomes clear the resident parent won’t accept the findings of the court

What will help the parties?

  • Understand the court process
  • Understand the burden and standard of proof
  • where ever you can – find some additional evidence that supports what you are saying. Are there any medical records or police reports? Did you say anything to a friend or family member at the time? Would they be willing to come to court and be cross examined about what you said?
  • If you have nothing other than your words – that is still evidence but you must be careful to be as clear and consistent as you can. Set out your statement in short numbered paragraphs and go in chronological order. Include everything that you can remember.

However, it has been my view for some time that the fundamental challenges to fair, efficient and humane processing of legal complaints about violence in intimate relationships are very little to do with the lawyers, the Judges and their lack of understanding or training. The real problems will require political will and a huge amount of cash to sort out.

  • court buildings that are not fit for purpose – no or very few waiting rooms, no separate entrance, courts sitting in cramped rooms with very little space, inadequate technology to accommodate video links etc
  • lack of judges and available court rooms to hear fact findings quickly – cases quickly become stuck and are allowed to drift.
  • lack of judicial continuity which is detrimental to effective case management – see comments in the case of A and R (Children), Re [2018] EWHC 2771 (Fam) para 57 -61.
  • lack of legal aid so that vulnerable witnesses may have be face being cross examined by their alleged abuser, the issues in the case are not identified and presented efficiently, litigants in person can’t afford to instruct experts etc, etc, etc.
  • wider societal problems, such as lack of available safe and affordable housing so that the financially weaker partner finds it very difficult to leave an abusive relationship particularly if there are children involved.

This is what we need to tackle. And I have to wonder why we are all so keen to be distracted by yet another newspaper campaign based on what seems to be a complete lack of knowledge or understanding of any of the issues I raise above. At the moment, the only people I can see who will benefit from all this are those who are pushing for Judges to be ‘trained’ – presumably by their own organisations and at significant cost.

And a the elephant in the room will remain. Why do so many people behave so badly in intimate relationships? And why do so many people have so little self worth that they accept it or cannot recognise it until many years have passed and great harm has been done? What as a society are we going to do about this? is there anything ‘we’ can do?

All I can say with certainty is that continued insistence on the FJS or any external agency to ‘fix’ the problems of cruel, unreasonable or otherwise dysfunctional people is doomed to expensive and emotionally harmful failure. And those who will suffer most, as they always do, are the children.

 

 

APPENDIX

Definitions in Practice Direction 12 J

Domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment;

“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

“development” means physical, intellectual, emotional, social or behavioural development;
“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another, by domestic abuse or otherwise;

“health” means physical or mental health;

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical

 

Para 5 what must the court do?

  • dentify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
  • consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
  • give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
  • ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
  • ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
    In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.

Para 8

In considering, on an application for a child arrangements order by consent, whether there is any risk of harm to the child, the court must consider all the evidence and information available. The court may direct a report under Section 7 of the Children Act 1989 to be provided either orally or in writing, before it makes its decision; in such a case, the court must ask for information about any advice given by the officer preparing the report to the parties and whether they, or the child, have been referred to any other agency, including local authority children’s services. If the report is not in writing, the court must make a note of its substance on the court file and a summary of the same shall be set out in a Schedule to the relevant order.

How do we deal with tension around open justice and protecting the vulnerable? Para 10:

If at any stage the court is advised by any party (in the application form, or otherwise), by Cafcass or CAFCASS Cymru or otherwise that there is a need for special arrangements to protect the party or child attending any hearing, the court must ensure so far as practicable that appropriate arrangements are made for the hearing (including the waiting arrangements at court prior to the hearing, and arrangements for entering and exiting the court building) and for all subsequent hearings in the case, unless it is advised and considers that these are no longer necessary. Where practicable, the court should enquire of the alleged victim of domestic abuse how best she/he wishes to participate.

Why are fact findings important – para 16

The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –

(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;

(b) in order to provide a basis for an accurate assessment of risk;

(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or

(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).

Para 40 In its judgment or reasons the court should always make clear how its findings on the issue of domestic abuse have influenced its decision on the issue of arrangements for the child. In particular, where the court has found domestic abuse proved but nonetheless makes an order which results in the child having future contact with the perpetrator of domestic abuse, the court must always explain, whether by way of reference to the welfare check-list, the factors in paragraphs 36 and 37 or otherwise, why it takes the view that the order which it has made will not expose the child to the risk of harm and is beneficial for the child.

 

33 thoughts on “How pushing the ‘victim/perpetrator’ dichotomy in the Family Court system hurts us all

  1. Angelo Granda

    A Parents View.

    I suggest that we ( and any Public Enquiry) have to face the reality that the Justice System is broken. The Family Courts System is not only broken but the courts are ,by their very make-up, nature and official protocol only ‘inferior’ ones which are unable to satisfy the need for proportionality in respect of decisions they are asked to take.Even Crown Courts which use ‘real’ evidence , ‘conclusive’ evidence etc. in the main and which operate no time limits ( summary justice in other words) can make such draconian orders as ‘family liquidation’.They do not act in the explicit interests of children.

    Parties including the State itself, are not made accountable to the laws in Family Courts. Bias exists and the laws are not equally enforced in accordance with normal standards. The Law is not given supremacy; it is relegated in favour of that which the Family Court deems ‘arbitrarily ‘ at its own ‘discretion ‘ to be in the best interests of children. Equality before the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency appear to be relegated too.
    Particularly as to open,public justice!

    Thanks for the informative discussion as to all the different kinds of evidence and its relative importance ,Sarah. However,not much of it is ‘conclusive’ evidence. Most of it is arguable ,however the court hasn’t the time to analyse and unravel it all.

    Written evidence can too easily be fixed and doctored.When it has been,the transgressors must be made immediately accountable.Especially that of Public officials.

    Readers,see:- https://childprotectionresource.online/category/evidence/

    Reply
  2. Brian

    I would just like to point out you’re complaining about the use of victim/perpetrator, but you have included this section from PD12J:
    “ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
    “In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.”
    Which describes one parent as the perpetrator before any finding of fact or admission of guilt. The victim/perpetrator dichotomy you complain of is there in black and white enshrined in PD12J. I struggle to understand why lawyers and judges cannot see what is in front of their noses, perhaps it is familiarity which blinds them. You are not alone in missing this vital prejudice, but something has got to be done because this is putting children at risk!

    Reply
    1. Sarah Phillimore Post author

      who has perpetrated domestic abuse – this refers clearly to a finding having been made as the rest of the document is clear to make the distinction between actual and alleged perpetrator. Of course any parent who has been found to have abused the other parent or a child must be looked at carefully when it comes to contact orders.

      Reply
      1. Brian

        Sorry, but no. This is in paragraph 5 of PD12J and refers specifically to making of interim contact orders BEFORE any admission of guilt or finding of fact and then immediately describes one parent (the one seeking contact as it happens) as having perpetrated domestic abuse and the other parent with whom the child is living as being at risk, i.e. being the victim. It is by no means certain that the child is living with the victim, they may be living with a perpetrator. That is a situation which frequently arises, but which is completely ignored by this document, which is, I’m sorry to say, utterly biassed.
        There is no reason the word “alleged” was missed out here either, it’s plainly wrong, but nobody is objecting, why is that? Why aren’t there lawyers and judges lining up to protect the presumption of innocence and the right to a fair hearing?

        Reply
        1. Sarah Phillimore Post author

          This is para 5 of the PD

          The court must, at all stages of the proceedings, and specifically at the First Hearing Dispute Resolution Appointment (‘FHDRA’), consider whether domestic abuse is raised as an issue, either by the parties or by Cafcass or CAFCASS Cymru or otherwise, and if so must –
          identify at the earliest opportunity (usually at the FHDRA) the factual and welfare issues involved;
          consider the nature of any allegation, admission or evidence of domestic abuse, and the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms;
          give directions to enable contested relevant factual and welfare issues to be tried as soon as possible and fairly;
          ensure that where domestic abuse is admitted or proven, any child arrangements order in place protects the safety and wellbeing of the child and the parent with whom the child is living, and does not expose either of them to the risk of further harm; and
          ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
          In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.

          I do not understand your objection to this paragraph. Am I looking at the right one?

          Reply
          1. Brian

            This is one bullet point:
            “ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.
            “In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.”
            So in the same bullet point PD12J is discussing the situation where there is no admission of guilt and no finding of fact and then describes one parent as having “perpetrated domestic abuse”. There’s no admission of guilt and no finding of fact, but this PD says one parent is a perpetrator! How come?
            What’s more why can’t any judges or lawyers see this?

          2. Sarah Phillimore Post author

            Because I don’t think that is the only interpretation. No allegation of violence can be treated as fact without a finding in a civil or criminal court OR an admission.

            Some parents come to court facing fresh allegations but with a documented history of previous abuse. I assume the guidance is referring to those cases.

            I have certainly never found any court willing to call a man a ‘perpetrator’ without a finding or admission.

  3. Angelo Granda

    As an ordinary citizen , I recognise controlling and coercive actions and even criminal ones whether practiced by marriage partners against each other or by Public Authorities against respondent parents (in a Public Law case) are often brought as a factor in evidence to Family Courts by the ‘alleged’ victims.
    I recognise also that ,due to the nature of family life and to the iffy ,generally illegitimate aims of L.A’s , that the alleged actions may take place in secret behind the closed doors of the family home or the barred windows and barricades of Social Services offices.

    I understand the post above and that the problem is one which is very difficult to get to the bottom of without any real ,forensic evidence.

    The post-writer ( Sarah) has also written in the past that coercive actions,threats and criminal actions on the part of human beings ,e.g. L.A. SW’s and management are not always done with malice and I agreed. By the exact,same token, it cannot be said that a man or woman who exercises control within his or her family ,acting in an endeavour to keep family life stable and to clean it up in the interests of their children, does so with malice. Their intentions may be good and legitimate but their actions excessive , cruel and oppressive. They may not be!

    So how does the barrister set about clearing a client so accused?
    When are his or her actions excessive and when are they reasonable?

    As Sarah says in her speech,

    QUOTE: a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings :UNQUOTE

    I agree such a process is essential. I think the judicial analysis has to be enacted in a fair Court open to the Public ( without time restraints) where all members of the Public can be called as witnesses. Such decisions should not be made on ‘professional’ assessments alone or in part. Real evidence given by real people under oath must be the predominant consideration.

    It may be best if the Court accepts that it is quite natural and human for men,for example , to adopt a position where they are the head of the family with a duty to keep all family members under control. So when does he act excessively? A dividing line has to be set and ,in my view, we have to examine a clear divide between coercion,threat etc. and SUBJUGATION ( total or partial).

    Purely as an illustration of excessive controlling ,threatening and coercive ,often criminal law-breaking and violent actions which result in total subjugation we may take L.A. actions in Public Law cases as a good example of it.

    These authorities will remove children unlawfully, remove them from natural family , isolate them from their roots, not only minimise but control family contact by gagging children and parents and preventing free speech.They also disconnect parents and children from extended family support by prohibiting them from discussing Court matters with them or with friends and so on and so on . It exercises total control over the unfortunate children involved to the extent of enlisting the Police even in non-criminal cases. The system most definitely subjugates citizens.

    Therefore ,to defend a client against accusations of excessive controlling behaviour ,threats and violence ,barristers should demand ‘conclusive’ evidence of subjugation.
    Has Mum been isolated from natural family or is there evidence to prove she has been allowed to visit and mix with them? Has the family been taken miles from its roots by Father? Has he denied his family telephone contact and has he insisted on controlling normal interactions and stopped them speaking to friends and relations about their lives?
    Has Mum been starved of finances or is there evidence to prove her husband has paid her sufficient housekeeping?
    Has she been confined to the home or is there evidence which proves she is permitted to come and go as she pleases? DOES she have friends? If so,can they be called to Court?
    Does the accused stop the children from going out, from having and meeting friends and relations? Is there any forensic evidence that he bashes them ( and his wife)? Are there any witnesses to testify to violence?

    Alas,readers, Family Courts don’t have the time or ability to analyse these questions nor the protocol. The Courts aren’t open and they don’t usually seek independent witnesses. They operate mainly by reading professional reports and ‘assessments’ and decisions are made without any real examination of facts such as those above. It prefers predication, unconfirmed intelligence computer data and statistics.

    These front line practices much change, in my opinion we can’t have justice unless they do!

    Reply
  4. nongenderbias9

    I tend to agree with Brian to the extent that cases are pre-judged without evidence, simply based on individuals making accusations abusing the safeguarding laws to hide from justice. I have known cases drag on for years with very little evidence, often counter-evidence being far stronger only for the final Judgement to be made in favour of the one struck the first accusation. In the meantime, no consideration is given to the welfare of the children who are often being psychologically and emotionally abused by the person making the accusations.
    What is certain in my mind is that family separation is a mental health problem. It has very little to do with, he said what to whom or did what to whom, but more to do with the natural behaviours which follow trauma. Unfortunately, this behaviour is destructive being born of extreme emotion such as fear. In these conditions we often witness the worse traits of humanity, revenge, dishonesty, selfishness, lies etc.
    Whilst the legal system wastes extraordinary amounts of time and money producing argument and counter-argument to fuel their desire for a “balance of probability” answer as if the family members were contesting a horse race, the fabric of society is in self-destruct for want of a mental health solution to family life. (When I say family, I include mother, father and children and their descendants in equal measure).
    The Cafcass workers, qualified as social workers, are equally unfit for purpose because their training does not include mental health. They function and are trained to impose stability even where there is discord. They do not wish to solve mental health issues.
    https://www.basw.co.uk/resources/global-definition-social-work
    This is probably the main reason we get such poor outcomes, the children often ending up with the psychologically abusive parent rather than the okay one. There are a lot of unnecessarily damaged children as a result, many of whom are more likely to be the coercively controlling or victim parents of the future.
    The solution is to have properly trained mental health professionals dealing with family break-up (i.e. all contested matters in the family court). We are not so much dealing with right and wrong as healthy and unhealthy and it is imperative the family dynamics are investigated immediately. (A part 25 application is needed from the get-go). Recent developments have elevated “parental alienation” to an illness. May 25th, 2019, the World Health Organisation accepted the current version of ICD-11 which contains within it the index term parental alienation for the code QE.52 Caregiver-Child Relationship Problem.
    The lawyers amongst us may think that the world of mental health can be treated as if there are several different opinions and they will be able to promote their argument in view of a “balance of probability” outcome but they would be misguided because measles is measles or cancer is cancer or parental alienation is parental alienation.

    Reply
    1. Sarah Phillimore Post author

      I don’t disagree with a lot of what you say – but mental health intervention won’t work unless it is accepted by the proposed patient. No one can be forced into treatment, unless they are so unwell they are sectioned.

      Reply
  5. Angelo Granda

    I agree with nongenderbias 9 in many respects .
    I suggest also that if it is right to say parental alienation is an illness (mental) then we should not ignore the close correlation between mental illness and a lack of moral values in society as a whole.
    Those who cause others to become mentally traumatised lack a full understanding of right and wrong .
    Their actions are morally wrong.
    However,if there is no criminal conviction this means there is no ‘real’ evidence. Allegations may be untrue or they may be partly true and ,of course,there may have been no malice or criminal intent. It may concern family dynamics which have developed and resulted in dysfunction and a ‘tug of love’ but neither party will be blameless. In these circumstances, in my opinion, it is a complete waste of time and money for either Mum or Dad to take the dispute to a Family Court. The Judiciary itself has admitted that these courts are unable to examine all the evidence adequately and that decisions are taken on value-judgments with all the bias and subjective opinion they involve.
    I agree an immediate, impartial investigation of family dynamics is to be carried out as soon as possible after parents contact a solicitor for advice.We are not so much dealing with right and wrong as healthy and unhealthy and it is imperative the family dynamics are investigated immediately. This isn’t for a Family Court though. Nor is it for the Police if there is no criminality.
    I have suggested before that independent mediation, then,following a factual investigation, independent and impartial arbitration is more likely to foster conciliation or at least some level of compromise.
    As part of the investigation,i suggest that any judgment of mental health should be made on facts alone and by that i mean the investigator should examine GP notes. If no mention is made by the G.P. of any mental illness or pre-existing condition then that is a simple fact to be entered into his report.
    No further ‘assessments’ or psychological ‘reports’ based on conjecture or non-clinical guesswork should be included; the investigator should stick to simple facts.
    Arbitrators should arbitrate on all freely available facts alone after reading a full investigation report kept simple. In the Court arena, this does not happen,obviously.

    Reply
  6. nongenderbias9

    Sarah, whilst I agree it would be unlikely that an individual adult would commit to a mental health assessment the court can insist on a child assessment.
    When carried out by a professional mental health expert (rather than a social worker) it is possible to decipher which parent has control over the children and whether they are abusing the children. E.g. When a child says, “Daddy is a paedophile and I don’t ever want to see him again”

    The Cafcass worker will instantly think this is a safeguarding problem, father being the abuser and child the victim

    The lawyer is not so sure and wheels in another opinion, the balance of probability weighing heavily on the mind.

    The mental health expert will ask the child a series of questions which establish that the true perpetrator of the abuse is the mother who makes false allegations to rid the child of their father.
    In another example a child will condemn their mother as weak, a drug taking prostitute, a woman of ill-repute, none of which is true, simply a means by which a father will abuse his children by turning them against their mother.
    There are mental health experts who can make these important judgement calls. The Court has a duty of care over the children and if it focuses on this rather than the fearful and sometimes desperate protests of traumatised adults then we will begin to remove children from the dangers of “traumatic splitting” in their minds. The child must contend with being used and manipulated by one parent (coerced) to such an extent that they may lose ambivalence, become doctrinal whilst internally conflicted. There have been some important psychological studies on adults who were parented exclusively by one parent who were victims of this kind of circumstance. Adult Children of Parental Alienation Syndrome: Breaking the Ties That Bind (Norton Professional Book) Hardcover – 17 Apr 2007. Parental Alienation Syndrome (PAS) occurs when divorcing parents use children as pawns, trying to turn the child against the other parent.
    Mistakes that are made by the legal profession. To see this as two adult parents having an argument. They may well be arguing, I would expect this to happen. That is not the issue that needs to be resolved.
    The reason they are arguing is because one is trying to win the children for themselves, coercively controlling them, and the other is desperately trying to stop this happening, perhaps not seeing this as an issue of ownership and control but simply wanting to continue being a parent.

    We don’t need lawyers to weigh up arguments over the likelihood of him calling at the dead of night to smash up her Greenhouse in a fit of pique or her neglecting to give little Johnny his cough mixture at 14.00 hrs because he might have asphyxiated.
    What is relevant is which if either parent is weaponising the child, is maliciously manipulating the child, who is the bully? Why can’t the children move freely between the two houses?

    Immediate intervention of mental health expertise is needed. Back towards the end of the last century Richard Gardner produced evidence to show how a child could be manipulated against the other parent (parental alienation syndrome). At risk here of going political, mother’s groups intent on “protecting” women from violent men have always denied the existence of parental alienation because they can improve their legal rights by denying any responsibility for wrong-doing. (Parental alienation isn’t gendered it is a state of mind. It is just as likely the perpetrator of psychological violence against a child is a man as a woman).
    Mother’s groups are in turmoil since parental alienation was recognised by the World Health Organisation 25/05/19 and I believe going to make it onto the DSM 5 in the USA. Hopefully in the long run they will see it as a good thing.
    …………………………
    In short focus on children, duty of care, mental health professional analysis.

    Reply
    1. Sarah Phillimore Post author

      The mental health expert will ask the child a series of questions which establish that the true perpetrator of the abuse is the mother who makes false allegations to rid the child of their father. This is unlikely to be possible in many or indeed any case. A child who has been systemically ‘brainwashed’ over time will come to believe that the allegations are true. No one person can establish ‘the truth’ with an interview of a child who may be confused or now utterly invested in the script.

      I am afraid I do not see this as as solution at all.

      Reply
      1. Angelo Granda

        QUOTE: A child who has been systemically ‘brainwashed’ over time will come to believe that the allegations are true. No one person can establish ‘the truth’ with an interview of a child who may be confused or now utterly invested in the script : UNQUOTE

        Sarah, Please when you suggest that no one person can establish ‘the truth’ with an interview of a child who has been systematically brainwashed over time,what should the Court do to establish it?
        Are you suggesting that two people should interview the child ? Or are you suggesting that the questioning and cross-examination of both parents by investigators should be the method used?
        It seems unlikely that a Family Court would have the time to do the necessary but if it tried,how would a barrister for the accused parent set about demonstrating the child had been brainwashed by the other?
        Who would the barrister question? What evidence would be needed to get to the truth?
        Who could be called to Court as a witness?
        I hope you don’t mind me asking these specific questions; i hope you can advise because it seems that many men and women recognise the problem you describe. It is one which people face regularly in Family Courts.

        Reply
        1. Sarah Phillimore Post author

          The court attempts to uncover the ‘truth’ by looking at ALL the evidence. Not merely what is said or is not said by a child in interview. What does each parent say? What have other adults witnessed or been told about? What does the school say? What does the GP say etc, etc, etc. Re J is a case in point. The mother insisted her son wanted to be a girl. The problem was that on one else in any other place had every seen anything to suggest that this was true. So the court found, on the evidence, that it wasn’t. Interviews can be a VERY powerful piece of evidence. They can in some cases be conclusive. But they may in many others be only a small piece of a much larger jigsaw.

          Reply
          1. Angelo Granda

            QUOTE: The problem was that no-one else in any other place had every seen anything to suggest that this was true :UNQUOTE

            Thanks for the advice,Sarah,which is a great help.
            I assume that where a SW comes forward with tales of witchcraft and spiders etc. or where a child psychologist interviews a child and ‘suggests’ the child shows mental traits ‘indicative’ of sex-abuse over a long period of time then, true or false,their reports would be accepted as a ‘suggestion’ that allegations were true.

            1.Even though there is no physical evidence of abuse or any independent witness able to testify contemporaneously to when it was alleged to have occurred.
            2. No prior suspicions or reports of sex or any other abuse from school ,neighbours or relatives.

            I am concerned that Family Courts will tend to take the easy way out, assume no-smoke without fire and make its decisions not in the interests of pure justice but in the ‘best interests’ of the child especially where an L.A. is the complainant ( rather than one of the child’s parents).

            I suppose that is why i think the accused should always be assumed innocent unless convicted in the criminal court .If not even tried in the criminal system,he is also to be presumed innocent .

            I am extremely interested,however, in knowing how the same problem is tackled in a Crown Court. I wonder what approach a barrister will take if the accused alleged his or her child had been brainwashed?

            I know you aren’t a criminal barrister,but have you any ideas? Thank you for your patience with questions from lay commentators.

  7. Angelo Granda

    Yes, As a non-professional ordinary parent,I agree with non-gender bias 9 that if a child is making allegations about one of the parents then an assessment made by a Specialist Child Mental Health Expert of some kind should be requested IF a dispute does go to Court.
    However, in serious cases ,e.g. where father is alleged to be a paedophile, I would not advise parents to take the issues to a Family Court. It hasn’t the time to examine them and take rational decisions. In cases alleged sex abuse,it might even take the child from both children ,without any real evidence,saying it is in his or her best interests .
    We really have to be careful. When criminal offences are alleged, report it to the Police immediately for a full and impartial investigation to establish real facts. A Police psychologist would no doubt be asked his opinion when children make serious allegations.

    Reply
  8. Angelo Granda

    Of course, i meant they might decide to take the child from both parents.
    I repeat it is asking for trouble taking these issues to the Family Court. The system of Social Workers, CAFFCASS guardians and the Children’s Legal Panel is out of control.The system is in turmoil and it was proven long ago that is particularly so in the case of the MENTAL HEALTH EXPERTS whose involvement is called for by non gender bias 9.
    Cleveland was a fine example. The Family Courts made a complete fiasco of lots and lots of cases by the use of experts . I am not going to go into specific cases here . I believe the methods used then by the Courts and their willingness to rely on one psychologist were highly condemned and the Law changed.
    No gender-specific ( male and female) dolls were to be handed to children during interviews,for example, and it was ordered that no Court should rely on the evidence of ONE psychologist alone. After thirty years , the new practices have still not trickled down.
    Sadly, Family Courts are out of control and don’t have the time or inclination to enforce correct procedures. In many cases,I’m afraid to say they cover=up malpractices.It’s quicker and easier.

    Reply
  9. nongenderbias9

    Parental alienation is a mental disorder. It has not got multiple solutions. It is not an argument between two people. It is not an opportunity for lawyers to roll in two experts with varied opinions on the subject. It is a one-sided condition. Just like measles. Just like cancer.
    The condition is discovered by interviewing the child. It is the child that reveals the story of their parents in crisis. Some people refer to this as a syndrome.
    There are eight symptoms which define this condition and they are revealed by interviewing the child.
    1 to 8
    It is then a relatively simple, straightforward data collection analysis which determines which of the two parents is coercively controlling and abusing the child. Who is the puppeteer in this psychological game?
    Number 2 on the list is “frivolous rationalisation of the complaint”
    E.g. Child says, “mother always poisons me with her food, it’s disgusting I never want to see her again” is the sort of statement that needs to be qualified by observing the behaviour of the mother and the father thereby establishing the truth. Etc

    Using the eight criteria above it is a relatively simple matter to establish which parent is coercively controlling and damaging the child’s psyche with their toxic behaviours.

    This is not an issue of gender it is an issue of mental health, it is a manifestation of adverse reaction to trauma. Just as many fathers are alienators as mothers.

    It is an unequivocal set of behaviours seen in the child, that is caused by a controlling adult. That adult is miss-using their parenting power to abuse the child.

    Even as I write this there is a group of angry hostile feminists who are trying to remove the condition “parental alienation” from the WHO list of disorders because it represents the truth that women are equally responsible for psychological domestic violence as men. For the last 40 years or so we have been led to believe that domestic violence was solely the responsibility of men and even if a woman struck the first blow then the man must be coercively controlling in some way and therefor the perpetrator. The Duluth model based on women’s experience of violence has been allowed to dictate how we view violence in the family home. The appearance of “parental alienation” on the WHO list of disorders makes it more difficult for mothers going through divorce to manipulate “justice” in their favour, the truth coming to the fore through diligent scientific research.
    Who knows, one day we may see domestic violence perpetrator programmes for women.

    You are right Sarah when you say the judiciary needs to be less adversarial and more psychologically informed it is up to courageous people like yourself to point these things out and make them stick.

    Reply
    1. Sarah Phillimore Post author

      I do not deny that listening to the child is important but it is not the magic bullet that solves every case. I frequently have cases where children say things that are not only inconsistent with what their siblings say but also internally inconsistent – they may offer 2, 3, or even more versions of ‘the truth’. What do we do then? We have to look at the situation in the round and consider evidence from all relevant sources. But I agree that any parent who would alienate a child from an otherwise blameless parent has clearly got some degree of psychological dysfunction and I don’t think the courts can do much to alleviate that.

      Reply
      1. Angelo Granda

        QUOTE: I frequently have cases where children say things that are not only inconsistent with what their siblings say but also internally inconsistent – they may offer 2, 3, or even more versions of ‘the truth’. What do we do then? : UNQUOTE.
        As an ordinary parent my opinion is that in cases like that, the evidence is unreliable and the Court must recognise it is unable to make a reliable decision and unravel it all. Especially if the evidence of the accused IS consistent. In serious cases,e.g. where there are allegations of domestic violence or sexual abuse, the case should be conducted correctly before it goes to Court and the facts examined . The quality of a child’s evidence must be assessed more stringently ( in much greater detail) at A.B.E. interview when criminal charges are considered. The Policeman/men who do the interviewing ( particularly in the absence of any forensic evidence or independent witness) should have a forensic psychologist present who is qualified to assess all possibilities such as P.A.S. The interviewers should also question the accused before hand in order to interrogate the child using relevant questions which may contradict their stories, break them down and find the truth.
        All they appear do at present ( in frontline practice) is take down allegations, go to Court and do a character assassination on the accused based on various unconfirmed reports and data.

        Reply
      2. Angelo Granda

        Sarah, I think i am correct to say that ,as a barrister, to a large extent you waste time arguing the inconsistencies,rights and wrongs etc.of all the diverse evidence,assessments and professional opinion presented to Court. In my opinion, this will be why Judges pay little attention to respondent’s disagreements as to evidence and why they cut their barristers short ( not to mention the length of the respondent’s evidence-in-chief).
        The Judges are simply averse to those arguments which the see as vexatious and a waste of time. To put the Judge’s approach more clearly, they are disallowed because of the ‘comitance’ factor from interfering with the discretion of L.A’s. The L.A. is granted the mandate to take its own decisions on the evidence and the Court cannot interfere with its decisions on the grounds of unreasonableness.
        That is not the task of the Family Court. The Court can only reject applications when the L.A. has directed itself properly in law ( e.g. it must be open and honest and must not leave out relevant material) ; has put human rights first and has followed safeguards and guidelines as to proportionality.It must conduct cases correctly in accordance with due process or the no-order principle should be applied,in my layperson’s view. The law is the only defense citizen’s have against authoritarianism in Public Law cases.
        Perhaps you will confirm this for readers or am I writing nonsense again?
        Lord Hailsham said decades ago that two reasonable persons can come to the opposite conclusions on the same evidence ( even when it is all factual) without being regarded as unreasonable. Wade says that the Court’s duty to act at it’s own discretion has to be ‘reconciled with the no less important doctrine that the Court MUST NOT USURP THE DISCRETION OF THE PUBLIC AUTHORITY WHICH PARLIAMENT APPOINTED TO MAKE THE DECISION.
        In other words,the L.A. more or less has carte=blanche to do what it wants and will take advantage of this position for political and financial reasons UNLESS the Courts stop them conducting cases wrongly and abusing human rights for those same reasons.
        Readers ,sorry if this comment is long and a bit complicated but I have been reading papers from the Court Office about appeals ,judicial review etc. Practically all avenues are counted out for various reasons.

        Reply
      3. Angelo Granda

        Correction: para 3.
        The Court can only reject applications when the L.A. has conducted itself IMPROPERLY in law.
        My apologies..

        Reply
  10. Angelo Granda

    Thanks for this advice and discussion. To nongender bias 9, if parental alienation is a mental disorder according to the W.H.O, what form should an investigation take in practice in your opinion?
    Do you think the mental health expert should take a part in any ABE interview along with a Police Officer to assess the child and help validate what a child is saying? Or can the expert give a qualified opinion just by looking at the ABE video?
    Would you expect any Court decision to be made without the expert opinion or is that unfair?

    Reply
    1. Angelo Granda

      Do you know exactly what the 8 criterior are?

      I understand ‘frivolous rationalisation’ is number 2 but what are the other 7?

      Reply
  11. Angelo Granda

    Alas, Nongenderbias9 appears to have vanished into cyberland (the ether).
    I have made some attempts to discover the 8 questions myself by following links on the internet but can’t find them.

    Readers, try this one which bears out P.A.S. and which supports what Sarah says about ‘magic bullets’ but also much of what non gender bias has written.

    https://www.eapap.eu/

    E.g. QUOTE:) The overwhelming body of evidence suggests that therapy should never be attempted outside a strong legal structure and judicial oversight that uses the threat of sanction to ensure compliance with the therapeutic process (for example, Warshak, 2010; Fidler, Bala, & Saini, 2013; Wiley, 2016). In cases of parental alienation, therapeutic interventions should only be undertaken in the context of a concurrent restoration of the physical relationship between the child and the alienated parent and the therapist’s primary consideration must always be the protection of the child from harm. Therapeutic interventions aimed at a restoration of the child’s relationship with a rejected parent must not be open ended and should be terminated without delay in cases where restoration of the relationship is not quickly achieved. Where a full restoration of the child’s relationship with the alienated parent is not achieved, or in cases where the child remains psychologically split, the case should be returned to court for consideration of a change of the child’s residence into the care of the alienated parent together with a temporary (typically, 90 days) or full protective separation from the alienating parent.

    Signed on behalf of the Board of the European Association of Parental Alienation Practitioners by:

    Dr. Wilfrid v. Boch Galhau M.D.
    Dr. Sietske Dijkstra
    Nick Woodall, MA

    Consultant psychotherapist: Linda J. Gottlieb, LMFT, LCSW-R : UNQUOTE.

    Also, parents might be interested in this link.
    karenwoodall.blog

    You can see that parental alienation is the fault of neither of the parents in particular, it is caused by the SEPARATION and the alienating parent may not actually be aware of what they are doing. The child sides with the parent they fear most who is usually the one they actually live with.
    If anyone finds what the 8 questions are ,please let us all know.

    Sarah, please will you bear in mind the importance of this W.H.O. recognised syndrome and consider how it affects and traumatises children separated from parents and placed in foster-care.

    Reply
    1. Sarah Phillimore Post author

      I am afraid I hold Karen Woodall’s work in low regard and I hope soon to be in a position to explain exactly why.

      Reply
  12. Angelo Granda

    . http://www.karenwoodall.com/articles-1

    Understanding and working with the alienated child Karen Woodall – Family Separation Clinic London The problem of children who refuse or resist a relationship with a parent after separation is one which takes up a great deal of practitioner time and understanding and working with children who are in this rejecting position after family separation can seem like a complex problem.

    Much more available on the link.

    Reply
    1. Sarah Phillimore Post author

      I would be grateful if you didn’t publish any more links to this resource. It’s not one I wish to promote.

      Reply
      1. Angelo Granda

        With the utmost respect,please accept my most humble and profuse apologies. Please delete the link if you find it disagreeable .

        Reply
        1. Sarah Phillimore Post author

          no that’s fine. I just want you to be aware why I won’t be commenting on it approvingly and this is not a person or a resource I can in good conscience recommend to other parents.

          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.