The Big Question – does the new law on Domestic Abuse go far enough?

This is a post by Sarah Phillimore

“Thomas More: …And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.” 
― Robert Bolt, A Man for All Seasons

On Sunday March 15th 2020 I was happy to accept an invitation to appear on the BBC’s ‘Big Questions’ programme to discuss the new Domestic Abuse Bill.

The other contributors were Michael Lewkowicz of Families need Fathers, Maria Cripps who runs a perpetrator programme in Brighton, Katy Bourne the Sussex Police and Crime Commissioner, Laura Richards founder of Paladin (the National Stalking Advocacy Service), Jo Gough the CEO of RISE UK and Luke Gittos of Spiked online.

I tried to set out my thoughts via Twitter on the train on the way down

On the train to Brighton ready for @bbcbigquestions "Does the new law on domestic abuse go far enough?"

Will be looking at this https://t.co/ConmvSdUMU

— Sarah Phillimore (@SVPhillimore) March 14, 2020

It was an interesting experience but the half an hour we got was no where near long enough to do more than lightly touch on some issues of considerable importance. However, I learned one thing above all which made a lot of things very clear to me for the first time – and that was the extent to which people either do not understand the distinction between the criminal justice system and the family justice system, or (perhaps more alarmingly) do not think it is important.

It was certainly naive of me not to have picked up on this before; as so many of us do I make the mistake of assuming that things which are clear and simple to me, are equally clear and simple to everyone else.

Much of the conversation was dominated by crimes; men who had committed them, how to identify them, how to ensure they did not get further access to their victims via any court system. With that, I entirely agree. Any person who has been convicted of a serious offence of violence against an intimate partner or child should have NO direct access to either without a very robust risk assessment and clear evidence of positive change. It is obviously wrong and harmful to allow such a person to directly cross examine their victim in any court setting. I am glad to see the Domestic Abuse Bill proposes to prohibit this but allow payment from court funds for an advocate to cross examine in those cases where the interests of justice demand it.

I do worry however how that will play out in practice and how long it will take to get the funds and find the advocate. My experiences in trying to find intermediaries do not fill me with optimism that this will be a quick or straightforward process. Nor am I aware from what pool of people these ‘cross examination advocates’ will be drawn nor any rate of pay. To cross examine effectively they will have to prepare thoroughly. Its not a matter of just turning up on the day and reading out a list of questions. Cross examination is a dynamic process where you must be ready to respond to answers you maybe did not expect.

However, this focus on criminal convictions and police intelligence, detracts from what I suspect are the majority of arguments in the civil family court about who spends time with children after a relationship breaks down. Typical of the cases in which I am instructed are a period of reasonably successful co-parenting after the separation, but then contact breaks down and allegations are made. Often each parent makes allegations against the other. Often neither parent has any kind of criminal record or concerns raised with any other agency.

During the debate the statistic that ‘only 1% of father’s are refused contact’ was raised. I don’t know where that comes from. Its not true, so far as I know. I can only assume that someone has bundled up direct AND indirect contact (which can be as little as two cards a year) and called it ‘contact’ – which of course is pretty dishonest. If anyone knows the source of this oft quote statistic, please do let me know. On my own cases I would say a lot more than 1% of fathers end up with no direct contact and no prospect of any direct contact either. And some of these fathers are identified by the court as ‘blameless’.

That this statistic has gained the traction it has – I hear it in many different places – underscores to me how the narrative of (female) ‘victim’ versus (male) ‘perpetrator’ is well established. This has the potential to do real and serious harm. It is fundamental to the rules of natural justice that people are able to challenge allegations made against them, if they do not accept them and if there is no evidence to support them such as a criminal conviction – which cannot be denied. An assumption at the outset that a women is a ‘victim’ has potential to cause great unfairness.

As I said in answer to a question by Nicky Campbell – the main problem with the civil family justice system is structural. What we need are quick and efficient fact finding hearings, judicial continuity and court buildings that can provide separate waiting rooms and other special measures such as screens and video links. What would be great also to have are safe, accessible contact centres so that when allegations are made against a parent, there is another route than simply stopping contact altogether while the court case winds its way though the system. I would like to see a strict time limit of 26 weeks as we have in public law cases and clear willingness to transfer the primary residence of children where possible, once it is clear that the primary carer does not accept a finding of fact and continues to obstruct contact.

.@SVPhillimore "The problem with the family justice system is structural. Thinking a shiny new law will solve the problem, will not solve it. We don't have enough judges or courtrooms, we need the system we've got to be funded." #bbtbq

— The Big Questions (@bbcbigquestions) March 15, 2020

It was sad but not surprising to see that I was instantly misquoted on social media, called ‘vile’ and a ‘disgrace’ for speaking nothing more than the obvious truth. If people genuinely think that pushing a false narrative and shouting down anyone who disagrees with them is a sensible long term strategy, I have some bad news for them. My only worry however is that these single issue campaigning groups appear to have captured a significant portion of the law and policy makers. And that IS a problem. Particularly when in their ranks are a number of women who have already been found by the family courts to have caused significant harm to the children in their care.

Hopefully we can keep talking and seeds can be planted. I have to continue to hope that we all want the same thing – for children to grow up healthy and happy with a relationship with both parents if that is safe for them. But nothing good ever came of denying the truth or bending the law to fit just one narrative. The problem with this debate was encapsulated by its title. Of course the law ‘doesn’t go far enough’. It cannot. Because what many campaigners seem to want is something that goes entirely beyond the law – a system whereby allegations (made by women) are simply believed without challenge. And that cannot be right. And I will continue to speak up against it.

Further reading

Alleged perpetrators of abuse as litigants in person in private family law – research from the MOJ from 2017 which explains why we are now in the current mess after legal aid was withdrawn from such cases in 2015.

Domestic Abuse Bill 2020: Over-arching fact sheet

Cross examination in the family court fact sheet

Safe not Sorry – Woman’s Aid report from 2016 which relies upon the bogus ‘1% contact refused’ statistic.