Tag Archives: Harm Report

Fact finding in private law proceedings – where are we now?

This is the text of a presentation at the St Johns Private Law conference on 14th June 2023

To have or not to have a finding of fact hearing is a key decision in proceedings. Relationships that are ending up in court have ended badly. The adversarial process is undoubtedly harmful to parties and finding of fact hearings cause enormous delay. It can be very necessary to establish what happened, in order to make sensible decisions about the way forward, but the courts are not there to validate either party’s perspective as to why the relationship broke down or how horrible the other one was. The guidance is now very clear – Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations.

These cases can be very difficult to run in practice, given how high emotions can run and how relatively unobjectionable behaviour during a relationship can be seen in a very different light once that relationship has soured. The gulf between the expectations of the client and what the court can deliver is often very wide indeed. The guidance with regard to decisions about findings of fact will be your shield against unreasonable client expectations. 

I will examine the following 

  • Some historical context
  • Summary of the May 2022 guidance
  • Case law – when it goes wrong

Some historical context 

The family justice system is caught between two very polarised views; those who assert it is a tool of misogynistic oppression, with a ‘pro contact culture’ that routinely hands over children to violent men and those who assert it is absurdly pro women and happy to cut men out of their children’s lives. Those of us who work in the family justice system know that both positions are false. We are however very much alive to the problems caused by a system which lacks resources and judicial continuity. It’s fair to say that men and women feel equally traumatised and let down in the majority of proceedings. 

Of recent years however, the campaigning groups who characterise the family courts as tools of misogynistic oppression have gained the ascendancy and the ear of the Ministry of Justice. This explains the renewed focus over the last few years on issues of domestic abuse in family proceedings. 

We begin with the Victoria Derbyshire show in May 2019, whose eviscerating exploration of the family justice system, prompted the Ministry of Justice on 21st May to announce that a ‘panel of experts’ would review how the family courts protect children and parents in cases of domestic abuse, and that this would be completed in only three months. I laughed at this remarkably optimistic time scale and I was right to do so – we didn’t see the finished ‘Harm Report’ until June 2020 [Assessing risk of harm to children and parents in private law cases https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895173/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf]

I have been critical of this report as it relies primarily on self selecting accounts from those who felt badly done by the family justice system, with obviously no ability to fact check assertions they made. It was clearly written from the perspective of the ‘misogynistic oppression’ camp, identifying a ‘pro contact culture’ which resulted in ‘systemic minimisation of allegations of domestic abuse’. From my own experiences in practice over 20 years now, I think that is overstating it. 

However, it identified other issues with which I can’t argue: resource constraints, working in silos and lack of communication and crucially the adversarial system itself, 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. 

The stage was the set for the Court of Appeal decision Re H-N [2021] EWCA Civ 448  where it was argued that the family justice system’s understanding of domestic abuse was not fit for purpose. 

The Court of Appeal considered the development of the family courts’ approach to issues of abuse. 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 guidance is at para 139:  

Domestic abuse is often rightly described as pernicious. In recent years, the greatly improved understanding both of the various forms of abuse, and also of the devastating impact it has upon the victims and any children of the family, described in the main section of this judgment, have been most significant and positive developments. The modern approach and understanding is reflected in the ‘General principles’ section of PD12J(4). As discussed at paragraphs 36–41 above that does not, however, mean that in every case where there is an allegation of, even very serious, domestic abuse it will be either appropriate or necessary for there to be a finding of fact hearing, so much is clear from the detailed guidance set out in paragraphs 16–20 of PD12J and, in particular, at paragraph 17.

Summary of May 2022 Guidance from Lady Justice Macur for Judges and magistrates. 

  • Make every hearing count. 
  • Judges must remain in control. 
  • Delay is inimical to child welfare. 
  • It is for the judge to determine the need for a finding of fact. ‘

At the FHDRA / first directions appointment/ to be considered at gatekeeping

If a MIAM hasn’t taken place, ask why not – duty to consider non-court dispute resolution: FPR r3.3.

TRIAGE – what are the real issues in the case. Are they safeguarding concerns? 

What is being alleged in terms of domestic abuse – look at definitions at FPR PD 12J [2A] and [3] in addition to PD 12J [14].

Has Form C1A been completed? Is there a response? If so, are there admissions? Can you see a possible way forward? 

Have you got enough information to avoid seeking further evidence? If not, consider what is needed in the fact specific circumstances of the case.

The judgment in Re H-N [2021] EWCA Civ 448 (paras 41-49) cautioned against allowing a Scott Schedule to distort the fact finding process (by becoming the sole focus of a hearing), but did not rule out the use of a schedule as a structure to assist in analysing specific allegations. Specific allegations of physical abuse fit well with a schedule, other allegations that require the court to look at a pattern of coercive and controlling behaviour will require a statement. Probably most cases will benefit from both. 

Is a fact-finding hearing required?



  • the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of a child arrangements order;
  • that the purpose of a fact finding is to allow assessment of the future risk to the child and the impact of any abuse on the child;
  • whether fact-finding is necessary or whether other evidence suffices; and,
  • whether fact-finding is proportionate. Do the allegations at their highest go to safeguarding in general or could they be mitigated by supervision of contact or other measures? 

If the decision is made to have a finding of fact hearing, then robust case management is required. 

The court controls the evidence in the case. FPR r1.1, r1.4, r.4.1 and that the court controls the evidence in the case: FPR r.22.1.

No case should be timetabled to a fact-finding hearing without a properly completed witness template. This will assist the parties and manage their expectations.

Participation directions. 

Section 63 Domestic Abuse Act 2021 established a presumption that where a party or witness is or at risk of being a victim of domestic abuse from a party to the proceedings, the quality of their evidence and/or their participation as a party is likely to be diminished by reason of vulnerability and this requires some thought. 

Part 3A FPR deals with vulnerable witnesses and their participation in proceedings.. PD3AA para 5.2 requires a ground rules hearing (or ground rules component of a hearing) before the vulnerable person gives evidence. Participation directions are a general case management direction made for the purpose of assisting a witness or party to give evidence or participate in proceedings; 

Consideration of FPR r.3A and PD 3AA are mandatory and the obligation to consider vulnerability is the court’s, regardless of whether a party is represented or if participation directions are sought. 

Under sections 65 and 66 of the Domestic Abuse Act, the court will appoint a qualified legal representative (QLR) to cross-examine relevant witnesses if parties:

  • do not have their own legal representative
  • are prohibited by the court from cross-examining, due to allegations of domestic abuse

Lucy Reed KC has blogged about her frustrations with this scheme, noting in March 2023 that the QLR scheme was only introduced for cases issued after 21st July 2022 and court listing is backed up, very few eligible cases have reached the finding of fact stage so far. But many more will be coming. And its not at all clear that enough people have signed up to the scheme to enable it to operate effectively. I will say no more, because I am not touching it with a bargepole. The removal of legal aid for private law family cases will risk the collapse of many hearings; where there will be no QLR and guidance for Judges is that they may not cross examine – which must be right. 

Re-visiting a decision not to have a fact-finding hearing

The court must, at all stages in the proceedings, consider whether domestic abuse is raised as an issue: FPR PD 12J [5]. However, guard against attempts to re-argue the question once a decision has been made. What is said to have changed to undermine the original analysis? Proceedings should have judicial continuity, wherever possible, and a consistent approach.

If ‘new’ evidence relating to past events is presented, ask why it was not available or disclosed before. If no good reason is advanced, then you may refuse to admit it. The more significant the evidence is said to be, the more compelling the explanation needs to be for its late receipt.

Case Law – when it goes wrong. 

B v P [2022] EWFC B18 (31 March 2022) 

Parents made cross allegations against each other. The district judge found most of the mother’s allegations not proved, and the mother appealed.  

The district judge was not referred to the need for a ground rules hearing, Part 3A of the FPR, practice directions 3AA or 12J; she was not referred to the definition of domestic abuse and she was not reminded of the decision in Re H-N

At para 40 of the appeal judgment it is noted:

The judge does not set out a history of the relationship or a chronology of the events relied upon. She sets out each of the allegations made by either of the parents and considers whether it is proved or not proved. It appears to me that she did not follow the approach endorsed in Re H-N, of stepping back from the precise allegations and considering the behaviour as a whole. She did not rule on whether the father’s behaviour was coercive or controlling.

The judge also got some of the facts wrong – for example, finding that the respondent had not entered the appellant’s bedroom, when in both his oral and written evidence he admitted that he had, in order to gather up her clothes and throw them outside. 

The court expressed sympathy for the district judge, who had to deal with a remote hearing, a litigant in person and an interpreter but regardless, the findings could not stand. 

 K v K [2022] EWCA Civ 468 (08 April 2022)

This case re-emphasised the general Re H-N guidance  and provided a fresh emphasis on methods of ‘non-court’ dispute resolution and when they should be considered. 

Briefly, the father submitted that the district judge had not considered his case that the mother had alienated the children and the findings made of rape, coercive and controlling behaviour and physical abuse of the children are unsound. The mother argued that there was a high threshold needed to over turn findings of fact, and it had not been reached in this case. 

The Court of Appeal found that there had not been proper consideration of the need for a finding of fact, and the findings made were unsafe. The case would therefore be sent back to a circuit judge to decide if a fresh finding of fact is needed, following the guidance set out in Re H-N.  In brief: 

  • The parties had not taken advantage of a MIAM – Mediation Intake and Assessment Meeting and this might have resolved logistical issues about the father’s contact. The mother had initially agreed to unsupervised contact and had not seen the allegation of rape or generalised controlling behaviour as central to the resolution of the issues between them. . 
  • Any judge considering a finding of fact must identify at an early stage the real issues in the case, as relate to the welfare of the child. A finding of fact is only necessary if the alleged abuse is relevant to what the court is being asked to decide relating to the children’s welfare. 
  • The finding of rape was unsafe as the Judge did not consider all the available evidence, including the mother’s untrue assertion that she had reported this to the family doctor.

The key quote can be found at para 65: 

A fact-finding hearing is not free-standing litigation. It always takes place within proceedings to protect a child from abuse or regarding the child’s future welfare. It is not to be allowed to become an opportunity for the parties to air their grievances. Nor is it a chance for parents to seek the court’s validation of their perception of what went wrong in their relationship. If fact-finding is to be justified in the first place or continued thereafter, the court must be able to identify how any alleged abusive behaviour is, or may be, relevant to the determination of the issues between the parties as to the future arrangements for the children.

So where next?

The family justice system puts proof of facts at its heart. An allegation which is not proved and which is not admitted is not a fact. I think there is a real risk to the fairness and integrity of court proceedings if a presumption is made at any stage that one party is more likely to be telling the truth. 

In May 2023 the Ministry of Justice produced its implementation plan – a progress report of what’s happened since the Harm Report. Of particular note is the Domestic Abuse Act, automatic eligibility for special measures, right to be supported in court by an IDVA, the pilot scheme in courts in Devon and North Wales launched in February 2022. The November 2020 review of the presumption of parental involvement remains ongoing!

But the language of this report is interesting. It speaks only of ‘victims’ and ‘perpetrators’ – no room for ‘alleged’ or ‘assertions’. This speaks very much to the FJS as ‘tool of misogynistic oppression’ and I do not think this is helpful. 

There remains considerable dissatisfaction from campaigning groups. Women’s Aid issued a statement in May 2023 about its view of progress since the Harm Report

Almost three years on from the Harm Panel report, we have not seen evidence of ‘cultural changes’ to improve safety for women and children experiencing abuse. This was a landmark report and we had high hopes for the change which was promised – but we continue to hear day in, day out from survivors that they are still experiencing disbelief, danger and trauma within the family courts. 

….. We remain unclear what ‘compulsory’ training on domestic abuse for judges includes, and in our experience women who allege domestic abuse continue to face discrimination and victim-blaming attitudes when trying to secure safe child contact arrangements for their children. 

“We urge the government, judiciary and family court professionals to work together with specialist domestic abuse organisations and survivors to deliver the system wide reform which is still so desperately needed to ensure children are put first in the family courts.” 

The tensions will of course always remain between those who see cases primarily through the eyes of a ‘victim’ who ought not to have to prove herself and be re-traumatised and those who must apply and obey fundamental legal principles in articles 8 and 6 of the ECHR. The likely collapse of the QLR scheme does not bode well for anyone. 

But all we can do is try and manage those tensions as best we can and in the framework set by law. And resist unilateral attempts by single issue campaigning groups to influence law and policy. 

Further reading

Report to the UN re ‘parental alientation’ as a ‘pseudo concept’ which leads to courts ignoring domestic abuse https://documents-dds-ny.un.org/doc/UNDOC/GEN/G23/070/18/PDF/G2307018.pdf?OpenElement

Complaint against the report from Gender Parity UK https://drive.google.com/file/d/1FWv2JnDVLXbyjC-LEMShk4KqqQYC7Enl/view

Gulf between the Victims Commissioner and practice in the family courts grows wider – see July 2023 report – The Family Court and domestic abuse: achieving cultural change.

Systemic Failings in the Family Justice System

Everyone knows it isn’t working – what can we do about it? And what should we STOP doing?

This is the presentation I gave to Families Need Fathers on 18th March 2023

The focus of my talk will be on the private law children system – care proceedings also face significant barriers to effective and efficient resolution but the pressures there are different and much more closely tied to the vulnerabilities of many of the parents and children and the lack of easily identifiable and obtainable resources for those with significant mental health and substance abuse issues. 

I have been to some interesting conferences and heard some interesting talks over the years, and I will try now to briefly distil what everyone seems to agree is the problem.  Because if we are clear about why family law is difficult, we are better directed to how we can attempt to fix it. 

It seems that we have all been talking for a long time about the problems inherent in the family justice system. It’s costing the Government an enormous amount of money, even after removing legal aid from private children work. In 2007/08, there were around 35,000 applications. This rose to around 48,000 in 2012/13 and 2013/14. Numbers then fell significantly after legal aid changes were introduced in 2013. However, the number of applications has now almost recovered to previous levels, with 46,500 applications made in 2019/20. Since 1 April 2022 to February this year Cafcass has received 36,487 new private law children’s cases. These cases involved 55,627 children.

Unsurprisingly, there is clearly significant political will to reduce the number and costs of cases coming into the family justice system. What we haven’t yet agreed is how we do this and how we can best distinguish between cases where there are significant safeguarding issues and cases where there are not. And this would appear to be the crucial distinction. 

What makes family law so difficult? Other forms of law are generally designed to correct past wrongs. Family law however is directed to identify the best outcome for children when relationships break down, or the fairest re-allocation of matrimonial assets after divorce. Relationship breakdown is not exclusively or primarily a legal issue – it involves often deeply unsettling emotional distress.

Emma Sutcliffe, a contributor to The Child Protection Resource put it this way in 2019.

People hate family court for the same reasons they hate hospitals; something pathological has happened to you that you cannot resolve alone, and you have to put your life in the hands of people who are deemed to be more expert about your condition than you are. If you’re in family court you’ve likely been through something painful, there’s no guarantee it will stop hurting and the interventions themselves cause bruises. There’s also a hefty bill at the end and the surrounding quality of life direct and indirect costs of loss of earnings and utter exhaustion. Plus … like lots of diseases, it might not go away, it might come back; next time it could be fatal.

Under conditions of extreme stress even usually robust people can experience intense emotions and project negative feelings onto former partners. Family separation is always stressful for children but there is no doubt that children who are exposed to acrimonious conflict, suffer long term negative impacts. Research from the Nuffield Family Justice Observatory has shown that even before starting court proceedings, parents were vulnerable. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self-harm and exposure to domestic abuse as either victim or perpetrator. 

The Family Justice Council organised a conference in April 2022.  The keynote address was given by Helen Adam who is the Chair of the Family Solutions Working Group. This was set up by High Court Judge Sir Stephen Cobb in 2020 as a multi -disciplinary group of professionals who work with parents and children from separated families to consider what can be done to improve the experience of children and families before any application is made to the family court.  

The over-arching theme of Helen’s address was that the adversarial system is harmful, and we need to think about how to get cases outside the court arena.  The aim is to reduce parental conflict. 

This echoes findings of the Family Court Reform Coalition Report in July 2022, which identified three reasons why the problems have developed.

  1. a vicious cycle of ‘perverse incentives’ which drives the process in the opposite direction to the one intended.
  2. a lack of standardised practice, combined with an approach which is unnecessarily adversarial, creates delay, drives up costs and damages children. 
  3. a lack of systemic research into the effectiveness of outcomes so the system cannot learn and improve. 

The adversarial system is identified repeatedly as a big part of the problem. It is clearly the last place any stressed and anxious parents need to be. What we have currently is a just a hotch potch of efforts at intervention and support. Cases that drag on for years – as many do – are clearly going to cause children lifelong emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

Helen rightly queried calling this the ‘Family Justice System’ – If that is what is said on the tin, that is what people expect – they want to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it?

 If we don’t want families to go to war, we need to offer them something else. 

But what exactly is this something else? 

Throw psychological distress, worry about financial security or the safety of your children into the mix, the lack of judicial continuity, lack of access to help with legal costs and serious delay, there is little wonder that the ‘Family Justice System’ is dysfunctional and overwhelmed. As Helen noted, the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Hopefully discussions like we are having today can help cut through that fog. 

She identified some possible solutions. 

  • political support that crosses party lines.
  • public education programme to correct wrong language and wrong attitudes which are outdated. 
  • authoritative website – a go to place with clear information for parents and children.
  • Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation. 
  • direct support for children – voice of child is key component but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised. 
  • Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

I certainly wouldn’t say ‘no’ to any of this if by some miracle the money could be found to pay for it, but I do not think the focus on ‘more information’ is what will do the most help, given what we know about the emotional states of many parents in proceedings. Mediation is often touted as the ‘cure all’ but it doesn’t seem that the introduction of compulsory Mediation Information and Assessment Meetings (MIAM) since 2014 has had any impact. Those who don’t want to mediate, won’t. Where there are serious issues of violence or alienation, these will not be resolved by ‘mediation’ or a leaflet. 

I estimate that about 10% of cases involving separated parents will be impervious to mediation, support, or ‘re-framing’ – these are cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. 

I think it is vital that we recognise this so that all of us ‘in the system’ can best direct our efforts. 

The pilot scheme. 

So, what about the new pilot scheme? This is now running until February 2024 in some courts in Dorset and Wales. See Practice Direction 36Z para 2.1

The revised process has been designed for all court users, but with a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children and litigants in person. The pilot seeks to test a more investigative approach, featuring earlier gatekeeping and information gathering to enable earlier triaging decisions and to front-load engagement with parties rather than engaging through multiple hearings. The court will also seek to hear the voice of the child more clearly through each case in this pilot, with the aim that appropriate engagement and communication are considered throughout proceedings. A more holistic, multi-agency approach is planned, with the court engaging and developing positive working relationships with key local partners such as mediators and local authorities. A review stage during the pilot process will aim to ensure that court orders meet the welfare needs of the child and reduce the number of cases which come back to court.

Those involved at the outset hoped to see the development of ‘three tracks’ – safeguarding for cases where domestic abuse is an issue, a co-parenting approach in cases where safeguarding is not an issue and returning cases. This means triaging cases with good early social work intervention and managing the case flexibly in the way best suited to the individual case. Cases where contact has broken down completely should be prioritised as urgent. 

The non-urgent cases could have a built in ‘pause’ to consider SPIPS, mediation, parenting programmes. No one should make assumptions about what families need but there should be more listening to and understanding issues, anxieties, stresses, and emotional resilience, what is working and what is not and how they think they could be supported. 

And discussion of costs consequences for parties who fail to engage without good reason – now, costs orders in family cases are seen as the exception and not the rule. 

Sadly, I do not usually go to the Devon or Welsh courts, so I have no direct experience of how this pilot is working. I did however speak to a barrister who does a lot of work in Bournemouth only a few days ago and she was pessimistic, saying what was needed was more focus on allocating private law cases to judges with experience and allowing judges greater control over the timetabling of cases. 

I will be very interested to know how the pilot has been working and whether there is any political will to roll it out nationally and commit to the additional resources that will no doubt be required. 

What can we do right now?

But what do we do while we wait? we all know it isn’t working – is there anything we can do to make things better right now?

Speed it up

A quick and obvious fix would be to insist on strict time limits as we have with public law proceedings. Although there is concern that the time limits are often exceeded, I think the statutory requirement for 6 months from start to finish has had a positive impact on cases which otherwise limped on for a year or more when I first started out in 1998. 


I think a key intervention and reform is more effective triage of cases – to better and more quickly distinguish between the ‘vulnerable’ and the ‘vexed’. Time is of the essence! A year in the life of a young child is a very long time. The majority of my ‘intractable cases’ ended only when the child had aged out of the system – we are talking about cases running for five years or more. 

Effective triage is something that we don’t necessarily need huge amounts of additional resources to do, but it means we do need time and space to be able to think about the cases before us and what they need. We need to firmly discourage interventions that are based on political campaigning or assumptions. This has done considerable harm and wastes our time.

Examine other jurisdictions

We can investigate what is being done well in other jurisdictions which show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes including less delay. The Family Law Reform Coalition note that the family Courts in Israel appear to be doing well, with a ‘one family one Judge’ policy and mandatory pre-filing information and alternative dispute resolution sessions for litigants, alongside immediate and swift procedures when abuse and maltreatment are alleged.  Many jurisdictions have introduced a presumption of shared care and that seems to have positive outcomes. 

What do we need to stop?

However, I know that our chances of success at reforming the family justice system are even slimmer while it is left as a plaything for various lobby groups or we are diverted by a disproportionate focus on ‘increased transparency’ as the solution.

The Ministry of Justice Harm Report in 2020 came into being after critical reporting about family cases on the Victoria Derbyshire show. It initially promised a 3-month turn around, appeared to rely uncritically on the approximately 1, 200 reports of  ‘lived experiences’ without any assessment of the truth or otherwise of their assertions. 

I wrote about my concerns in 2019.

there is a problem what I shall call the ‘DV Sector’, for want of a better title. There are a number of individual women and organisations who garner a lot of media attention, who have books and talks to promote and apparently the ear of credible and influential law and policy makers, including serving MPs. The narrative that some of them promote I think is actively harmful to reasonable debate and the rule of law. Their reaction when challenged is alarming. More people in the sector need to have the courage to speak up about this. 

I commented that this observation from the Harm Report was ‘powerfully naïve’.

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.

Hopefully my arithmetic is accurate. The report claimed ‘over 1,200’ responses. If I generously assume 1,300 negative reports and take the 46,500 applications in 2019/20 as representative of the likely numbers of applications in the year preceeding the Harm Report, then the negative and unverifiable accounts represent about 3% of all applications in one year. It is ludicrous to base policies on such poor data and it is alarming how many in positions of power and influence seem to embrace this. 

It seemed to me clear where all this was supposed to be leading – to a landmark Court of Appeal case that would finally declare the Family Justice System as unable to even identify, let alone tackle, issues of abuse and violence. 

That decision of re HN and others in 2021 https://childprotectionresource.online/guidance-from-the-court-of-appeal-about-domestic-abuse-cases/ appears ironically to have had rather the opposite impact to that hoped for by those who predicted it would be the final expose of the failures of the FJS to deal with domestic violence. My experience on the ground is that it has has re-iterated the need for courts to look very closely at PD12J. The courts have risen to that challenge and in many cases following Re HN rejected the need for any finding of fact about alleged violence (a very useful case for further consideration of all the relevant principles is A & Anor v B & Ors [2022] EWHC 3089 (Fam) (02 December 2022). 

The consequences of being led by campaigners who assert that the biggest problem in the FJS is violent men and a court system that props them up, is shown by the prohibition of direct cross examination of an allegedvictim of abuse by an alleged perpetrator, introduced by section 65 of the Domestic Abuse Act 2021. 

Rather than have a judge attempt cross examination on behalf of a litigant in person, which would clearly be inappropriate, the gap is supposed to be plugged by the ‘Qualified Legal Representative’ scheme. However, recent feedback has been concerning – It seems as if only a few 100 barristers have signed up for the scheme which isn’t anything like enough, and this is going to lead to more cases being adjourned and delayed. Lucy Reed crunched some numbers in her recent blog – very few lawyers are likely to be willing to work at a loss. 

We have all noted the constant back and forth regarding parental alienation and domestic violence. The family justice system is denigrated by various campaigners and lobbyists as either a tool of misogynistic oppression or deliberately designed to freeze out fathers. Of course, both cannot be true at the same time. There are certainly violent men in the family courts, alongside emotionally abusive women. Adherence to one or the other of these extremes and calling for the FJS to ‘respond’ guarantees that cases cannot be properly assessed and triaged. All the energy wasted on arguing about whether parents do actively attempt to alienate their children from the other parent – they do – and what label we should put on this behaviour, is energy diverted from finding solutions.

Will increased transparency about what goes on in the courts help any of this? Sadly, I don’t think so. There are some notable exceptions, but many journalists do not wish to report about the family courts, but act rather to promote lobbyists. Investigative journalism is expensive and we can no longer rely on journalists as a profession to be willing and able to report – rather they offer us opinion pieces, reflecting their own bias about what is driving the family court system. Despite the fanfare of the recent transparency pilot, I will eat my wig and gown without condiments if I ever see a journalist at any of my cases. The work I do is simply not ‘sexy’ enough to warrant their attention – but it is of vital importance of course to the individuals involved. 


I gave up my work as activist in the FJS as it was based on the dangerous naïve premise that all we must do is talk honestly and openly and we can sort everything out. This ignores the reality that many are simply unable to see beyond their own fixed narratives; research has apparently shown that the more ‘facts’ you give a conspiracy theorist, the harder in fact they dig down. 

The barriers to a more humane and effective system remain high. There is often very little on offer by way of intervention or support or it requires significant financial resources to obtain. The money wasted on an adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system that crossed political lines and united everyone. 

One thing that really stuck in my mind following the FJC conference last year was the mother who said that the FJS had saved her and her children. Child protection is all our business. I think there is a continuing role and a societal need for a family justice system – but it must be committed to identifying which families need state intervention, and which families are harmed, and it must resist the interference and unevidenced demands of single-issue lobbyists. 

Our current system does not triage effectively – or at all – and this causes great misery and wastes huge amounts of money. I hope we are going to see some changes in my lifetime, and I hope I have been able to plant some further seeds of thought and discussion here today. 

Further reading

Why does everyone hate the Family Court? And what if anything can we do about it? Child Protection Resource January 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-courts-and-what-if-anything-can-we-do-about-it/

Why does everyone hate the Family Court Part 2 Child Protection Resource February 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-court-part-ii/

Why does everyone hate the Family Court Part 3 – what narrative is gaining ground and why should this concern us? Child Protection Resource April 2019 https://childprotectionresource.online/why-does-every-one-hate-the-family-court-part-iii-what-narrative-is-gaining-traction-and-why-should-this-concern-us/

Why does everyone hate the Family Court Part 4 May 2019 https://childprotectionresource.online/why-does-everyone-hate-the-family-court-part-four/

Ministry of Justice Harm Report 2020 https://consult.justice.gov.uk/digital-communications/assessing-harm-private-family-law-proceedings/results/assessing-risk-harm-children-parents-pl-childrens-cases-report.pdf

Assessing risk of harm in private law cases Child Protection Resource June 2020 https://childprotectionresource.online/assessing-risk-of-harm-to-children-and-parents-in-private-law-cases/

Private Law Working Group Second Report March 2020 https://www.judiciary.uk/wp-content/uploads/2020/04/PRIVATE-LAW-WORKING-GROUP-REPORT-1.pdf

Uncovering children private law – who is coming to court in England? Report by the Nuffield Family Justice Observatory https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/05/nfjo_whos_coming_to_court_England_full_report_FINAL-1-.pdf

Time for Climate Change in the Family Justice System Child Protection Resource April 2022 https://childprotectionresource.online/time-for-climate-change-in-the-family-justice-system/

Family Court Reform Coalition Report July 2022 https://fcrc.uk/final-report/

Governement Guidance re Qualified Legal Representatives July 2022 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1101848/final-statutory-guidance-role-of-the-qualified-legal-representative.pdf