Tag Archives: domestic abuse

Book review: Sexy but Psycho

This is a review from a contributor who wishes to remain anonymous. The issue of how female victims of domestic abuse are treated in the family justice system is a controversial one. My experiences as a lawyer in the system over 20 years does not support the narrative that I often hear from others, that women’s experiences of violence and abuse are dismissed or actively turned against them. But what is equally clear is that many disagree with me. I am still not clear how we square this circle. Either I am a victim myself of a misogynistic system and simply cannot see the truth as it is played out – or there is a degree of exaggeration by the system’s critics. Presumably the truth, as ever, lies somewhere in between. I cannot deny the number of women who feel very strongly that something is going very badly wrong; here one women gives her history to explain why. I can’t dismiss something simply because it does not chime with my experience or belief – but it is a matter of continuing curiosity and worry to me, how big the gap can be between mine and other women’s experiences.

Sarah Phillimore

“She’s mental “ is currently being played out both in court and in the media in the Heard versus Depp defamation case. What is happening under the gaze of the world, could have been a case study in Dr Jessica Talyor’s latest book.

Amber Heard has been evaluated by the defendant’s witness to have two personality disorders . This is a common diagnosis in family law cases, where there are allegations of intimate partner violence.

The blurb on Sexy but Psycho proclaims “ Angry , opinionated,mouthy,aggressive,hysterical, mad …. Why are women and girls who report violence against them so likely to be diagnosed with personality disorders ? Why are women and girls pathologised for being angry about oppression and abuse ”  Dr Taylor argues ( yes she is angry ) that women are classified by the psychiatric profession as mentally unwell when they in fact are having a normal stress response to trauma. She delves into the historical context, women who did not play the game being labelled as witches or locked up in institutions. Any protesting was seen as further evidence of mental illness. Little girls and grown women it seemed were in the words of the nursery rhyme supposed to be made of “ sugar and spice and all things nice” – woe betide them if they stepped over the line.

The Heard-Depp case proves that this is not just historical, it is happening today. The book includes a chapter titled “ Pathologising women and children in the courtroom” , which starts with the case study of a young mother labeled with emotionally unstable personality disorder and depression after being abused and raped by her partner. He then used the label against her in the courtroom. This may be familiar to many. The woman continued to be labelled for years afterwards as unstable, without the violence she had been a victim of being recorded in her files as well.

I eagerly awaited this book and it did not disappoint. I too, was labelled with a personality disorder by a court appointed psychiatrist after years of intimate partner violence, ignored by the authorities the times I asked for help. I had no previous mental disorders or addictions. The NHS could find nothing to treat when I referred myself to mental health services. My daughters were placed under a care order with my abusive ex partner; his previous offending was ignored.  I was told that my condition was not treatable by the court expert in the timescale for the children. It was unbelievably surreal, but sadly, is not unique. 

Dr Taylor demonstrates that the system is unwell rather than the women.It is misogynistic, created by men to control women. Despite so-called equal rights it still does so. She sets out a plan to change , starting with psychiatric services pathologising and medicating trauma victims. She wants to remove funding from pharmaceutical companies and instead invest that funding in free trauma treatment. She advocates for training for all professionals dealing with women , to understand why the woman may be presenting as she is, a frightened person rather than an unstable person out for revenge /attention …..

Cases involving Domestic Abuse – how should the court handle this?

This is the text of a presentation given at the Bristol Civil Justice Centre on 19th January 2022, considering how the Court of Appeal’s guidance in Re H-N has been working out ‘on the ground’ We are left with the distinct impression that its not possible to resolve the tension between two competing principles – undertake a sensitive and detailed analysis of patterns of behaviour in a relationship AND take up less of the court’s time. But the need for early and robust findings of fact is clear.

We first met to discuss this in May 2021 and we thought it would be helpful to meet again to see how the guidance was working on the ground. I am going to remind you of the Court of Appeal guidance and consider how it was applied in the case of A Child (Application of PD12J : No.2 – Findings of Fact) [2022] EWFC 2 (12 January 2022)

Re H-N and Others (children) (domestic abuse: finding of fact hearings)

Neutral Citation Number: [2021] EWCA Civ 448

In March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The Court of Appeal was clear that PD12J was ‘fit for purpose’ – the issue was how it was being implemented in proceedings. 

The first 77 paragraphs deal with some general guidance. The fundamental issue was, where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?

Summary of guidance

The Court of Appeal will expect to see recognition of the following issues in cases involving allegations of domestic abuse. 

Do we need a finding of fact hearing?

  • At the earliest stage, consider the detailed guidance in PD12J about the need for a finding of fact. 
  • Remember that PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.
  • Fact finding hearings are to provide a factual basis for assessments or orders/interventions
  • Only allegations that are necessary for assessment purposes or particular orders should be considered
  • Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?

CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration – I am not sure how this is playing out on the ground. 

Awareness of ‘patterns of behaviour’ means we have to consider the limitations of a Scott Schedule as a means of pleading a case

  • In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other 
  • Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, that assertion should be the primary issue for determination at the fact- finding hearing. 
  • Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape). 

BUT how do we square the circle between increased focus on pattens of behaviour and a need to save court time and scarce resources? 

In essence, decisions about fact findings must be made at an early stage and any interim arrangements for contact must be safe for the child. The key words are ‘proportionality’ and ‘necessity’. We have to keep in mind the ‘overriding objective’ to deal with cases efficiently and recognise that resources are finite and need to be allocated to other cases than just our own. 

As the President’s Guidance ‘The Road Ahead’ (June 2020) set out:

‘if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’

But the Court of Appeal at para 54 were alert to the immediate tension that exists, between dealing with matters efficiently and doing justice to allegations of ‘patterns of behaviour’. I have certainly never experienced two week finding of fact in a private law case – I consider myself very lucky if I can get a day within a reasonable timescale. 

In promoting the need for courts to prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations, there is the potential that this additional layer of evaluation may add to an already lengthy forensic evaluative process. By example, the fact-finding hearing that had been listed in Re B-B (one of the four appeal cases before the court) was planned to last five days (that is 25 court hours) in order to consider five factual allegations.

How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight- forward, question. 

A number of suggestions were made by the parties in submissions including; 

  • a ‘threshold’ type document, similar to that used in public law proceedings,
  •  formal pleadings by way of particulars of claim as seen in civil proceedings and 
  • a narrative statement in prescribed form. 

A recent case is a useful illustration of the difficulties of trying to ‘square the circle’ 

A Child (Application of PD12J) [2021] EWFC B59 (6 October 2021) sets out the tension so often apparent in private law cases – either one party is a victim of domestic abuse, including sexual abuse and controlling and coercive behaviour, with the children being exposed to this abuse or one party has laid a trail of false and/or exaggerated allegations to justify removal of the children from their family home or refusal to permit contact with the other party. 

On 30th September 2021 HHJ Dancey gave permission to appeal to the mother of three children, aged 10, 8 and 5 from an order made by a district judge three days earlier that she return the children from the North of England to Dorset and for shared time with their father.  In default of return the district judge had made a transfer of ‘residence’ order. The mother alleged significant abusive behaviour from the father, including that he had lied about being HIV positive and had repeatedly raped her. 

One ground of appeal was that the judge failed to address PD12J at any point in his judgment and failed therefore to consider the harm the mother and/or the children would suffer if he made the orders sought, the level of supervision required, the risk to the children and the impact domestic abuse could have on their emotional well-being and the safety of the mother. He treated it effectively as a summary return in a relocation case. 

The Judge found the district judge was entitled to take a critical view of the mother’s position and weigh that in the balance. He was also entitled to expect a rational explanation for a move of such distance and to consider the proportionality of the mother’s decision-making.   But he was not entitled to dismiss the mother’s allegations summarily, ignore CAFCASS recommendations and fail to properly consider PD12J. 

It’s worth reading the submissions in full as they set out the huge difficulties of these kind of cases. 

Judge commented at para 120 

The acutely difficult question the present appeal poses is the balance to be struck by the court between (a) the potential harm identified by PD12J of making orders that may place children at risk of the consequences of domestic abuse and (b) the emotional harm and potential relationship damage that may be caused by unilateral removal a considerable distance away from the family home and cessation of contact.  

These are decisions that have to be made on an urgent basis, often with limited and untested information.    Get it wrong and the court risks placing children at risk of harm either way.   This is a welfare analysis that requires caution, balance and proportionality – often not easy to achieve at an interim stage.

Para 122 he endorses the framework of analysis proposed by Peter Jackson LJ in the different context of public law care and placement orders in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761 :

a)         What is the type of harm that might arise (for present purposes, putting the mother’s case at its highest)?   

b)        What is the likelihood of it arising?

c)         What would be the consequences in terms of severity of harm if it happened?

d)        Can the risks of harm happening be reduced or mitigated so that they are manageable (including in this case by the making of protective measures)?

e)         What does a comparative evaluation of the advantages and disadvantages of each option (here, return or not, contact or not) say about the best interests of the children, having regard also to the need to protect a parent vulnerable to abuse?

f)         Is the outcome proposed proportionate?

At para 124 the judge comments that the court is not bound to simply accept whatever a party says without some kind of critical analysis but at an interim stage is required to consider the circumstances around the allegations, including:

a)             the seriousness of the allegations and the harm that might result;

b)             whether there is already evidence from other sources which supports or undermines the allegations;

c)             the consistency or otherwise of the allegations (making allowance for the fact that it is in the nature of domestic abuse that accounts are often given piecemeal and incrementally, especially in relation to allegations of sexual abuse which may be delayed because of embarrassment, shame or simply thinking ‘I won’t be believed’);

d)             possible motivations for making allegations;

e)             how the children are presenting and what they are saying.

His last comment at para 139 is interesting 

I should add that the current practice, driven by resource demands, of Cafcass not interviewing both parents for the purpose of preparation of the safeguarding letter has contributed to the sense that the Cafcass recommendations were based solely on what the mother told them. At the moment Cafcass are leaving it until the FHDRA before speaking to the parties at court.   I am concerned that interviewing parents in this pressured environment rather than independently away from court risks safety issues being missed.  In this case of course the hearings were on non-Cafcass days and there was no opportunity to speak to both parents even at court.   The father was not spoken to by Cafcass at all until after the decision under appeal.  

The finding of fact was then heard in December, court reminding itself that Section 63 of the Domestic Abuse Act 2021, which came into force on 1 October 2021, requires amendment of the Family Procedure Rules to ensure that, where a person is, or is at risk of being, a victim of domestic abuse carried out by another party, or relative of another party or witness, it is to be assumed that the quality of their evidence and, where they are a party, their participation in the proceedings, are likely to be diminished by reason of vulnerability.

The following special measures were therefore put in place

a) separate waiting areas were arranged for the mother;

b) in court the father was screened from sight by the mother and arrangements were made when going in and out of court and during adjournments to ensure she would not see the father;

c) the mother was screened from the father while giving her evidence from the witness box;

d) breaks were taken during the mother’s evidence which spanned the afternoon of the first day of the hearing and the morning of the second and took some 5 hours;

e) additional opportunities for breaks were offered to the mother at points when she appeared to find questions about intimate matters particularly difficult, although in fact the mother opted to carry on;

f) given that there were some long pauses before the mother was able to answer some questions, I ensured that adequate time was given to the mother to answer questions fully before moving on to the next.

The difficulty for the court was that one of the parties had to be lying. Their starkly different accounts could not be resolved. The Judge was clearly alive to the difficulties In assessing the evidence of victims of trauma – at para 180 he said

This has been a troubling and difficult case. Experience shows that victims of domestic abuse, who are by definition vulnerable witnesses, sometimes find it difficult to talk about intimate and highly personal information, particularly allegations of sexual abuse. Because victims live in a state of fear, with patterns of abusively controlling behaviour, it is not uncommon for dates and incidents to become confused. Lived experiences are revealed over sometimes lengthy periods, including during court proceedings and, in my recent experience, in the course of giving evidence. Sometimes this iterative process is a matter of victims gaining the independence and courage to talk about their experience. Sometimes something is said which triggers a victim to be able to speak.

However on a careful analysis of the evidence he found that the mother had fabricated allegations against the father to justify her departure from an unhappy marriage. Although the father’s failure to disclose his HIV status was ‘abhorrent and abusive’ it did not create a risk to mother or children and therefore was not a matter to be relied upon to restrict contact. 

What this case clearly underscores is the need for careful analysis of all the factors set out in PD12J at an interim stage, followed by swift and robust findings of fact. The only way to do this is I am afraid by taking up court time. I can’t see any other way to square the circle. 

Further reading

Another useful example of how to apply the Court of Appeal guidance B-B, Re (Domestic Abuse: Fact-Finding) (Rev1) [2022] EWHC 108 (Fam) (20 January 2022) – in this case the father was found to have behaved abusively.

Guidance from the Court of Appeal about domestic abuse cases

Neutral Citation Number: [2021] EWCA Civ 448

Re H-N and Others (children) (domestic abuse: finding of fact hearings)

This is a post by Sarah Phillimore. This is a useful judgment setting out comprehensively and clearly the historical evolution of the family court approach to issues of domestic abuse and offering useful pointers for how such cases should be handled. It recognises that every appeal in such cases represents a failure but does not accept wider criticisms of a systemic refusal or inability of the family court system to tackle allegations of abuse. However, the massive, trumpeting elephant in the room remains the tensions between the need to see relationships more of ‘patterns’ than discrete incidents and the inevitability that such investigation will take time that the family court system just doesn’t have.

On the 30th March 2021 the Court of Appeal handed down its judgment in four conjoined appeals. A number of intervenors were involved, including the Association of Lawyers for Children and Families Need Fathers. The first 77 paragraphs deal with some general guidance on two very important issues.

  1. where domestic abuse is alleged in children cases, should the focus be on patterns of behaviour rather than specific incidents?
  2. What extent should the family courts be taking into account concepts which are applicable in criminal proceedings?

The rest of the judgment looks at the individual appeals. While guidance from the Court of Appeal is always welcome, the court recognises at the outset its limitations. Not only are there various initiatives already in train but there is a clear limit to what any court can say about issues which do not strictly arise from the appeals before it.

Domestic Abuse in the Family Courts

This is sadly a common issue. A ‘guesstimate’ is that of the 55,253 ‘private law’ children applications made in 2019/2020, 40% involved allegations of domestic abuse. It is important that the court consider the impact of the abuse on the parents and child and may restrict or even close down, any continuing relationship between the abusive parent and the child. If one parent does not accept the allegations of the other, the family court as a civil court, may conduct a ‘finding of fact hearing’ to determine what did or didn’t happen. The burden of proof is on the person making the allegations and the standard of proof is the ordinary civil standard ‘on the balance of probabilities’ . If the court does not find that an allegation is true then it is treated as if it didn’t happen.

Cases are heard by the 2,744 lay magistrates and 1,582 salaried judges, along with some part time judges. Making decisions in such cases is clearly a significant responsibility – get it wrong and either an abusive parent is allowed free reign to continue abusing, or a blameless parent may lose their relationship with their child. The cases can be very difficult – the evidence is often not clear and may turn on the word of one parent against the other. The decision about having a finding of fact hearing and what allegations it should deal with is clearly very important and needs to be made at an early stage. Not every case will need such a hearing.

Developing understanding of issues around domestic abuse

The family courts approach to issues of domestic abuse have evolved as society’s attitudes have shifted – although some say its far too little and too slowly. But the attitudes of decades ago, where domestic abuse was seen as either trivial or a private matter, are long gone. There have been various shifts in attitude over the years. The Court of Appeal noted the ‘seminal moment’ to the court’s approach to ‘domestic violence’ (as it was still called) was the Court of Appeal judgment in another conjoined hearing of four appeals –  Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FCR 404; [2000] 2 FLR 334. The court heard from expert child psychiatrists who emphasised the need for greater awareness of the existence of and the consequences for children of, exposure to ‘domestic violence’ between parents and other partners.

Further initiatives were developed to improve the ways the courts handling of such cases, one being Family Proceedings Rule 2010: Practice Direction 12J- Child Arrangements and Contact Orders: Domestic Abuse and Harm (‘PD12J’) which was originally implemented in 2008. PD12J sets out a step by step guide over 40 paragraphs about what the court MUST do in cases where there is reason to believe that one party has perpetrated abuse or there is a risk this might happen.

Even wider initiatives are afoot – the Ministry of Justice is moving to implement their report: Assessing Risk of Harm to Children and Parents in Private Law Children Cases: (‘The Harm Panel Report’). At the same time, the Domestic Abuse Bill is before Parliament. In addition the  President of the Family Division’s ‘Private Law Working Group’ (‘PLWG’) punished its second report in April 2020. The Harm Panel Report wishes to implement a more ‘investigative and problem solving’ approach to domestic abuse in the courts, rather than allow the current adversarial system to continue – pilots of Integrated Domestic Abuse Courts (IDAC) are being designed. The success or otherwise of such initiatives are clearly beyond the scope of any court judgment to examine, so the Court of Appeal restricted itself to general guidance about the current court processes.

General guidance relating to the current court process

The number of appeals against decisions in these cases are low but the Court of Appeal warns against complacency. When the stakes are so high, even a small amount of cases going wrong can cause deep unease and the public rightly seek to hold the Family Justice System to account when it fails.

While I take on board the significant developments in improved practice and procedure over the last 50 years, there is an immediate and angry elephant in the room which this appeal hearing illustrated starkly. Legal aid was removed in 2012 from private law cases, unless a ‘domestic violence’ exemption can be proven. That meant each of the mothers/appellants had the benefit of public funding whereas each father had to find solicitors and barristers willing to work for free. The Court of Appeal was of course grateful that this was done, but no court system can run on gratitude. There ought to be ‘equality of arms’ in these proceedings.

Increased awareness of ‘patterns of behaviour’.

The definition of ‘abuse’ was expanded in 2017. PD12J paragraph 3 reflects the need to move away from characterising domestic abuse as separate incidents of violence, but looking more to patterns of acts and incidents, including incidents of controlling, coercive or threatening behaviour which can be demonstrated by 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. We have come a long way from the 1970s and the focus on ‘violence’ only. No one argued before the court that this definition of ‘abuse’ should change and the Court of Appeal concluded therefore that it was fit for purpose. Although the structure of the definition of ‘domestic abuse’ in clause 1 of the Domestic Abuse Bill [‘DAB’] currently before Parliament differs from that in PD12J, the content is substantially the same.

The Court of Appeal therefore concluded:

We are therefore of the view that PD12J is and remains, fit for the purpose for which it was designed namely to provide the courts with a structure enabling the court first to recognise all forms of domestic abuse and thereafter on how to approach such allegations when made in private law proceedings. As was also recognised by The Harm Panel, we are satisfied that the structure properly reflects modern concepts and understanding of domestic abuse

The key issue was whether the Judges ‘on the ground’ were properly implementing PD12J. Just before the Court of Appeal hearing in January 2021, Mr Justice Hayden handed down judgment in F v M [2021] EWFC 4 in a case that involved a 2 week finding of fact hearing on allegations that centred on coercive or controlling behaviour. All the parties praised this judgment for its ‘comprehensive and lucid analysis’ and agreed with the plea within it urging greater prominence to be given to coercive and controlling behaviour in the Family Court which would involve more training. The judgment was considered ‘essential’ reading for the judiciary and also highlighted paragraph 60 of the statutory guidance published by the Home Office pursuant to Section 77 (1) of the Serious Crime Act 2015 which identified paradigm behaviours of controlling and coercive behaviour. I haven’t read that and now will, so I guess my ‘awareness’ has been usefully raised.

The Court of Appeal noted that it was also necessary to be clear what was NOT sufficiently bad behaviour to count as coercive or controlling

It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour. We would endorse the approach taken by Peter Jackson LJ in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 (paragraph 61):“Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to ‘domestic abuse’, where ‘coercive behaviour’ is defined as behaviour that is ‘used to harm, punish, or frighten the victim…’ and ‘controlling behaviour’ as behaviour ‘designed to make a person subordinate…’ In cases where the alleged behaviour does not have this character it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict.

What should the court do?

Once allegations of abuse are raised, the Court of Appeal identified four important questions to guide the court’s approach:

  1. Whether there should be a finding of fact hearing – there is detailed guidance in PD12J about this.
  2. The challenges presented by Scott Schedules as a means of pleading a case;
  3. If a fact-finding hearing is necessary and proportionate, how should an allegation of domestic abuse be approached?
  4. The relevance of criminal law concepts.

In essence, decisions about fact findings must be made at an early stage and any interim arrangements for contact must be safe for the child. The key words are ‘proportionality’ and ‘necessity’. We have to keep in mind the ‘overriding objective’ to deal with cases efficiently and recognise that resources are finite and need to be allocated to other cases than just our own.

As the President’s Guidance ‘The Road Ahead’ (June 2020) set out:

‘if the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.’

This immediately ushers in yet another angry elephants. I have never had a finding of fact hearing longer than five days in a domestic abuse case, and that was very rare. We are usually lucky if we can squeeze a handful of days out of court listing. Of course, restricting allegations to your ‘top six’ or ‘best 10’ do not enable proper investigation into coercive patterns of behaviour over many years – but unless the numbers of salaried judges expand dramatically, its difficult to see how two week findings of fact (or even two days) are going to become achievable within any realistic time frame. Therefore I am afraid I retain my usual bad tempered scepticism about the magic wand of ‘training’ . I am tolerably aware of coercive and controlling behaviour. But we need actual court time to conduct a proper hearing about such cases; they are unlikely to be able to slot into a day or two.

The Court of Appeal at para 54 did however echo my concerns

In promoting the need for courts to prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established over and above the determination of any specific factual allegations, there is the potential that this additional layer of evaluation may add to an already lengthy forensic evaluative process. By example, the fact-finding hearing that had been listed in Re B-B (one of the four appeal cases before the court) was planned to last five days (that is 25 court hours) in order to consider five factual allegations.

And noted this was an important question which the Court of Appeal could not answer

How to meet the need to evaluate the existence, or otherwise, of a pattern of coercive and/or controlling behaviour without significantly increasing the scale and length of private law proceedings is therefore a most important, and not altogether straight- forward, question. It is a matter that will require consideration by others involved in working through the implications of the MOJ Harm Panel report, in implementing the Domestic Abuse Act and in any subsequent revision of revising PD12J as part of those two processes. The President will refer the anonymised skeleton arguments in these appeals to Mrs Justice Knowles (the lead judge on issues of domestic abuse) and to Mr Justice Cobb (the lead judge on private law matters) for consideration as part of that review.

Trying to spin the plates

In order to grapple with the clear tension between a fair investigation of what has actually happened in the parties relationship against the need to keep control over the length of court hearings, its clear that case management is the key. The court summarised the approach to fact findings:

  1. consider the nature of the allegations and the extent to which they will be relevant to making order about children.
  2. Keep in mind that the purpose of a finding of fact is to provide the basis for a risk assessment
  3. Carefully consider if its ‘necessary’ or whether there is other evidence that provides a sufficient factual basis to proceed.
  4. Does the fact finding need to be a separate hearing, or can it be bundled up with the final hearing?

CAFCASS made the very sensible suggestion that it would help to have more input from their officers at an earlier stage to help answer these questions and the Court of Appeal agreed this was a good idea worthy of more consideration.

Everyone agreed that Scott Schedules were useless and risked giving a false picture of what was happening in a relationship. The Court of Appeal agreed with the comments of Ms Mills QC on behalf of the second interveners, (‘Women’s Aid’, ‘Rights for Women’, ‘Rape Crisis England and Wales’ and ‘Welsh Women’s Aid’), who submitted that ‘the overwhelming majority of domestic abuse (particularly abuse perpetrated by men against women) is underpinned by coercive control and it is the overarching issue that ought to be tried first by the court. It is clear that the family court needed to move away from picking ‘your best 10’ allegations but considerations of how we move forward are limited to noting some suggestions at this time.

A number of suggestions were made by the parties in submissions including; a ‘threshold’ type document, similar to that used in public law proceedings, formal pleadings by way of particulars of claim as seen in civil proceedings and a narrative statement in prescribed form. The particular advantage of a narrative statement was, it was submitted, that it would allow there to be a focus on the overall nature of the relationship and expressly whether a party says that she had been harmed as a result of the behaviour and, if so, in what manner. Such an approach would allow the court to identify at an early stage whether an allegation of controlling and coercive behaviour is in issue. Identifying the form of harm (which may be psychological) and only then looking back at the more granular detail, would, it was submitted, allow the court to determine what specific facts need to be determined at a fact-finding hearing.

This all sounds very sensible and I hope we will see it translated into a Practice Direction soon.

The court offered the following ‘pointers’

PD12J is focused on child arrangement orders – it does not establish a free-standing jurisdiction to determine domestic abuse allegations that are not relevant to child welfare issues.

Fact finding hearings are to provide a factual basis for assessments or orders/interventions

Only allegations that are necessary for assessment purposes or particular orders should be considered

In every case where domestic abuse is alleged, both parents should be asked to describe in short terms (either in a written statement or orally at a preliminary hearing) the overall experience of being in a relationship with each other (this is an excellent idea!)

Where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, and a fact-finding is necessary, that assertion should be the primary issue for determination at the fact- finding hearing. Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour (a likely example being an allegation of rape).

The relevance of criminal law concepts

With regard to the last point about rape being justified as necessary allegation to determine, I maintain my concern that allegations of rape are for the criminal courts to be decided on the criminal standard of proof. The Court of Appeal said:

When considering domestic abuse, it will not infrequently be the case that the alleged behaviour will be such that it is capable both of being the subject of prosecution as an offence before the criminal courts and being the focus of consideration in the family courts as justification for the implementation of protective measures. The criminal law has developed a sophisticated and structured approach to the analysis of evidence of behaviour, to enable the criminal court to determine whether the guilt of the alleged offender has been proved to the requisite high standard. This raises the question of the degree to which the Family Court, if at all, should have regard to and deploy criminal law concepts in its own evaluation of the same or similar behaviour in the different context of Family proceedings.

The question was answered simply – it is not appropriate to use criminal law concepts in family proceedings. The two systems are fundamentally different with different aims and different standards of proof – criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court.

The Court of Appeal commented that the authoritative statement of the law in this regard is that which is found in the judgments of McFarlane and Hickinbottom LJJ in Re R.

But I accept what the Court of Appeal says about allegations on rape in the family courts – perhaps the problem is me getting too caught up in criminal law concepts here.

Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context. For example in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the border line as between ‘consent’ and ‘submission’ may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault.

Will those who see the family courts as a misogynistic tool of oppression welcome this judgment ?

This judgment is I suspect, not going to be welcomed happily by those who would have accepted nothing less than the collective family court system falling on a massive sword and accepting its inability to recognise or deal with domestic abuse cases. The Court of Appeal rejected any suggestion that the family court system has yet to be dragged into the ‘modern approach’ but warned judges who fail to properly direct their minds:

We are confident that the modern approach that we have described is already well understood and has become embedded through training and experience in the practice of the vast majority of judges and magistrates sitting in the Family Court. Where however an issue properly arises as to whether there has been a pattern of coercive and/or controlling abusive behaviour within a family, and the determination of that issue is likely to be relevant to the assessment of the risk of future harm, a judge who fails expressly to consider the issue may be held on appeal to have fallen into error.

3 of the 4 appeals succeeded. The decisions were made on long-established principles of fairness. They do not establish any ‘new law’ nor any binding precedent. I will therefore not discuss them here, but as ever it is instructive to read and consider what went wrong and how we might avoid repeating such mistakes in future cases. Every appeal of a family court judgement represents a failure, represents avoidable pain and misery caused to adults and children. But the fact that a small percentage of judgments need to be appealed, does not mean the whole system is rotten. Any system requiring input from humans will fail at times. We have to do the best to limit those failures; it is magical thinking to expect them to be avoided entirely.

While the Court of Appeal welcomed and described the further training for Judges, such as a now mandatory free standing sexual assault awareness training programme, it did not accept that the failures under their current investigation are indicative of a systemic failure to appreciate the nature and significance of domestic abuse.

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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)