Nineteen Child Homicides

Women’s Aid recently published a report entitled Nineteen Child Homicides – what must change so children are put first in child contact arrangements and the family courts. In fact it was a few weeks ago, but I’ve been giving it a lot of thought, because I am rather ambivalent about it for complicated reasons, and want to express myself carefully and fairly. It has been hard to find sufficient time in between the day job to complete this properly, hence the delay.

Before I talk about the report itself though, I need to give a little bit of background (well alright, quite a lot of background).

The background

In 2004 Women’s Aid published a report called Twenty Nine Child Homicides : Lessons still to be learnt on domestic violence and child protection. It was said to b a compilation of the details of “29 children in 13 families who were killed…as a result of contact (and in one case residence) arrangements”. The report was primarily based upon the summaries of Serious Case Reviews (SCRs) and spanned a 10 year period. It posed the following question (amongst others) “Did the court knowingly grant unsupervised contact or residence to a violent parent – and if so, has anyone been held accountable?”. The report recommendations included :

Mechanisms are required for holding family court professionals accountable for decisions that result in children being killed or seriously harmed. If found to be responsible, professionals (judges, magistrates, barristers, solicitors, expert witness or family court adviser) should lose their right to adjudicate, represent parties, provide evidence or report to the court in family proceedings.

Legislation should require the courts to assess risk and prioritise the safety of the child in all cases involving allegations of abuse, because there is always likely to be risk in contact disputes involving domestic violence.

There were other more detailed recommendations, and several that did not relate to family courts but to other safeguarding agencies.

In March 2006 Lord Justice Nicholas Wall (as he then was) produced a report on the 29 Homicides report for the President of the Family division. In that report (here) he referred to “skepticism about [the report’s] conclusions and methodology, particularly the implication that judges were indifferent to the safety of children when making contact orders.” That report was published, although a section of it containing the details of individual families was removed before publication.

He records that :

  • 18 of the 29 children in the report were not subject to any form of court proceedings. Eleven were.
  • 8 of the 11 died as a result of parental actions which could not have been reasonably foreseen or prevented by the court, and no criticism could be made of the judges who made the orders
  • In relation to 3 children it was arguable a more proactive stance should have been taken and the court should have refused to make a consent order for contact. The judges who made the orders genuinely thought the orders were in their best interest, made in good faith and after conscientious application of s1 Children Act 1989 (in which the welfare of children is paramount).
  • The cases represented a tiny proportion of the thousands of contact orders made each year.

Wall LJ was critical of some of the wording of the questions and recommendations of the report, in particular in relation to the suggestion that judges should be held “responsible” for the actions of a parent. Mechanisms for the discipline and removal of judges already existed for use where appropriate. He said “the question and the recommendation…seem to me to overstate the power and influence of the judge.” In one case the parents agreed arrangements, and this could only have been prevented by the intervention of the Local Authority – who had been asked to report under s37 CA 1989 but declined to become involved (this is a scenario familiar to many of us working in this field).

Wall endorsed the recommendations for judicial training and in due course that training was adapted. There was also guidance issued in relation to the approval of consent orders – judges were reminded care was needed even when parties appeared to have agreed matters.

Wall also flagged that there appeared to be a concerning suggestion in some of the case files reviewed by him in the preparation of his report, that it may be safe to order contact where domestic violence has been perpetrated on the mother but not the child. Domestic violence is, said Wall, a very serious failure of parenting :

It is in my view, high time that the Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father.

A number of important things have happened since that first report, and these are set out in the report itself. In brief :

  • The Family Justice Council also reported to the President of the Family Division on the lessons from the 29 Homicides report, seeking a cultural change away from a presumption of “contact is best” to “contact that is safe and positive for the child is always the appropriate way forward”.
  • In 2005 the definition of “Harm” in the Children Act 1989 was amended to include “impairment suffered from seeing or hearing the ill-treatment of another”
  • In 2008 Practice Direction 12J was published and later revised, in particular the definition of domestic violence has ben expanded to include coercive and controlling behaviour.
  • The so-called “presumption of parental involvement” was enacted in 2014.

I note that in 2012 Women’s Aid were still expressing themselves in this way (in written submissions to the House of Commons Education Committee)  :

In 29 Child Homicides, Women’s Aid compiled a list of 29 children (in 13 families) who were killed as a result of contact or residence arrangements in England and Wales during the previous decade to 2004 (however, since there are no national statistics kept on this, the actual figure may be higher). Ten of these children were killed between 2002 and 2004. With regard to five of these families, contact was ordered by the court. The publication of 29 Child Homicides raised the profile of child contact and the risks that unsafe child contact can pose to both the child and the non-abusing parent (usually the mother). [my emphasis]

So that’s the bigger picture. Let’s look at the 2016 material.

 

The Press material

Firstly, I want to look at the Press release and accompanying material, which announced the publication of the report, and which arrived in my inbox prior to publication. I’ve set it out at the end of this post for ease.

There are a couple of statistics of note :

  • Less than 1% of child contact applications are refused
  • Domestic abuse features in 60-70% of CAFCASS caseloads and around 70-90% of cases going to the family court.

The first statistic is based on the situation in 2003 – so is pretty stale – and the second on figures for 2008/2005. This is surprising given that much more recent statistics exist. For example, a study in 2015 showed contact applications by fathers were successful in 88% of cases (See HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?, Harding & Newnham 2015) that study also observed that “The courts’ approach was usually to order as much contact was safe in the circumstances”). I am sure there are also more up to date statistics for the whole family court caseload published on the government’s websites somewhere or in research studies.

The choice of domestic abuse statistics is also puzzling. The figures cited are from 2008 / 2005 respectively. Again, there is more up to date information out there, such as the 2011 Justice Committee Report on the Operation of the Family Courts (pa 92-97) and no doubt some more up to date material that I have not found. That (broadly) suggests around half of cases involve allegations of domestic abuse.

It may just be that the statistics are just borrowed from a 2014 article by Adrienne Barnett upon which the authors place heavy reliance (of which more later), but the selection of these particular statistics does feel a little bit as if it has been done with a view to bolstering a case – it is I suppose a Press Release – and the express purpose of the exercise is as a campaign in support of a petition to “Call on the Secretary of State for Justice and district judges to take action”. The petition calls for two specific actions, firstly :

Ensuring that domestic abuse is identified and its impact fully considered by the family court judiciary and that child arrangements orders put the best interests of the child(ren) first and protect the well-being of the parent the child(ren) is living with, in accordance with Practice Direction 12 J Child Arrangements & Contact Order: Domestic Violence and Harm. 

Secondly the petition calls for special measures for victims in the form of separate waiting areas (I’m not sure how that one will pan out since the government has just announced it is closing a significant proportion of court buildings).

In essence : a plea to act according to existing law and guidance and sort out the rotten old court estate.

But a report which makes such significant claims and criticisms (it’s title is premised upon the assertion that the family courts do not put children first) needs to be observably even-handed with the available evidence, so this struck me as a poor choice on the part of the authors of the release. I have often said that domestic violence is a horribly politicised topic – selective use of statistics does not assist in reducing this impression.

Of note also is the extraction of the quote from Lord Justice Wall without reference to the other points he made about the first homicides report :

It is, in my view, high time that the Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father.

The quote itself is uncontroversial – and I support it’s sentiment – but the recruitment of Lord Justice Wall to appear as a supporter of the report (perhaps he is, who knows?) seems odd given his previous (polite) criticisms of the approach epitomized by the earlier Women’s Aid report.

The press release and petition also quotes and names a surviving mother whose children were killed by their father in October 2014 “XX, mother of X and X who were killed in October 2014 by their father after he was granted unsupervised contact with them by the family court” (Women’s Aid names them, I choose not to). Notwithstanding the suggestion in the report that details of individual cases are not given in order to avoid causing the families further distress, these details match the publicly available SCR in “The P case”, which in turn matches the case identified in the report as number 10 (identical quotes from the children are contained in both the Women’s Aid and SCR reports). This is important, because of what the SCR report tells us, that the Women’s Aid report does not. I discuss this later.

What does the report claim?

Polly Neate, CEO of Women’s Aid offers a Foreword. She says this…

Firstly, that something needs to change before the family courts can be said to put the child first (See the title of the report).

Secondly, that “whatever the stated requirements on the family courts, there is a deeply embedded culture that pushes for contact with fathers at all costs”. This is, it is said “supported by testimony to Women’s Aid of mothers who have survived domestic abuse”. One is bound to observe that this testimony is likely subjective, is self-evidently anecdotal and in any event is not presented for scrutiny. There is a “relentless push to maintain as close a bond between father and child as possible…the impact of abuse on the whole family, particularly persistent, coercive and controlling behaviour which continues after the relationship has officially ended, is routinely misunderstood”. For my part I would say there is a strong ethos of “contact wherever safe”, which is not the same thing as “contact at all costs” and which I see no problem with. The issue is not with the objectives, but how professionals understand what may and may not be safe. I agree that coercive and controlling behaviour and the ongoing impact of domestic abuse are often (perhaps not routinely) misunderstood. I think we need work on this and would support better judicial training on coercive control in particular (see my previous rants on the arbitrary restriction of schedules of allegations to six incidents and the limitations of an incident-based approach to fact finding).

The report cautions against the dangers of “power without accountability”, and talks of courts “effectively colluding in the terrorising…and…serious harm…of women and children”.

There is a call to ensure that “no more children die as a result of a simple failure to follow the guidance that exists.”

Thus, the report represents a direct criticism of the family courts and asserts a causal connection between the way in which the courts operate and the death of children. The same foreword reminds us that the report should not be used to blame individual professionals for child deaths, but it is difficult to see the criticisms as anything other than an attempt to lay blame at the door of the system if not the individuals within it.

So what can we make of the report methodology and how far does it take us?

As with the first report, this study is limited and appears to be starting with a working hypothesis that involves criticism of the Family Court, and attempting to gather evidence in support of that hypothesis. The authors say in terms in the section on excluded reports “we were looking for cases where the killer was a perpetrator of domestic abuse”. The study spans a ten year period, but gives little information about how fresh or stale the 12 cases are (although we know one case, case 10 is probably from 2014 and therefore fairly recent). Certainly if the majority of the cases date from the first half of the period covered by the study I am not sure how much they would tell us about the need for reform now, because so much has changed in terms of our approach to domestic abuse over the last ten years.

It is not insignificant that the report uncovered details of 12 incidents of filicide by fathers over a ten year period (19 children, but in 12 families). On one view perhaps this simply illustrates the exceptional nature of these sorts of awful incidents. In truth it probably illustrates somewhat more sharply the significant limitations on the methodology used.

Local Childrens’ Safeguarding Boards (LCSBs) are responsible for carrying out Serious Case Reviews (SCR). The regulations that impose this duty on them (LSCB regulations 2006) say that they should do this where a child has died or suffered serious harm and where abuse or neglect is known or suspected and where there is cause for concern about the way agencies have worked together to safeguard the child. The court is not one of the agencies specified in the regulations or enabling act (CA 2004), and in general the actions of the court do not fall within the purview of a SCR. It is unsurprising therefore that a keyword search of a database of SCRs does not produce much in the way of results, and self evident that it may not produce a very representative or statistically significant sample.

There is research in this area. For example, research by Flyn, Shaw and Abel published in 2013 (Filicide: Mental Illness in Those Who Kill Their Children) suggests that most child victims of homicide are killed by a parent or step-parent, and whilst this 66% of perpetrators were fathers, mothers make up a significant proportion of those who kill their children (male:female ration 2:1, 80% of those killed by a parent or step parent were killed by a biological parent). That study suggests a correlation between parental mental health, substance abuse and filicide. 40% of perpetrators had a recorded mental disorder. The authors suggest that :

Our findings indicate that fathers with a history of substance misuse, violence or affective disorder and mothers who were teenagers at the birth of their child, or with affective disorder may be appropriate targets for intervention. Parents with mental illness should be asked about violent thoughts toward their children, particularly if depressed…Future research on filicide should study these acts in the context of child abuse and domestic violence to support the development of effective interventions.

This research drew on an established homicide database and identified 342 perpetrators of filicide (male and female) over a (different but overlapping) ten year period. Although they did not select for domestic abuse or parental separation / contact issues, it seems pretty obvious that the Women’s Aid methodology will have only produced a fraction of homicides falling within their criteria. Although there may well be different causes and patterns of filicide as between mothers and fathers (and stepfathers), the fact that Women’s Aid happen only to have found male perpetrators in their small sample fitting their criteria is frankly evidence of nothing much at all – not least because a keyword search for “domestic abuse” is likely to reflect the gendered use of language when describing behaviour in the context of intimate relationships (female on male violence is not reliably labelled as domestic abuse).

Although the authors of the report acknowledge some limitations arising from their methodology, I think they are underplayed. They are of course, the exact same limitations pointed out by Wall in 2006.

A culture of “contact no matter what”?

The Women’s Aid report suggests that there is a culture of “contact no matter what” in the family court. Apart from the anecdotal reports from “testimony to Women’s Aid of mothers” this appears to be heavily based upon an article by Adrienne Barnett (Contact at all costs? Domestic violence and children’s welfare, C&FLQ 2014), which is heavily referenced throughout the Women’s Aid report. The Barnett article itself draws on the authors’ own “small study” of the perceptions of a handful of professionals, which is summarized (but not fully set out) in the piece.

It is a detailed and interesting article, but Women’s Aid place a surprising amount of reliance upon it, given the subjective nature of the article and study. I have no doubt many professionals would disagree with some of the views set out in it – and frankly none of our subjective, anecdotal opinions is much cop compared to a large scale objective analysis. Further, the article mischaracterizes the effect of the “presumption of parental involvement” by leaving out the important limitations on its application and the (hair) triggers for displacement of it. It is only by skipping over the actual reach of the legislative presumption that the author is able to assert that the presumption may “reinforce the perception that seeking to restrict parental involvement is unacceptable and undercut the aims and operation of the recently revised Practice Direction 12J.” Had I been one of the handful of lawyers interviewed I’d have reported that the presumption has been effectively ignored since its enactment, since it doesn’t change the law. This assertion about the adverse impact of the presumption is regurgitated uncritically in the Women’s Aid report.

(It is probably sensible to flag that I appear to be quoted in the Barnett article, commenting on the overly restrictive 2 year evidence rule for legal aid post-LASPO, but the quote is taken from other publicly available documents and I did not participate in the study.)

Women’s Aid suggests in the report that the family court and CAFCASS must “prevent avoidable child deaths by putting children first”. As Lord Justice Wall said in 2006, the language selected by Women’s Aid is unhelpful. If Women’s Aid mean to say that individuals within the system think other things are more important than the welfare of the child, that is a very serious allegation – not least because it would be entirely contrary to the law as laid down by Parliament in the Children Act 1989, and contrary to the professional and legal duties of lawyers, judges and social work professionals. If that is the allegation it must be backed up by evidence, and I don’t think this report provides it. It gives a dozen very sad examples of where things have gone wrong notwithstanding their aim to promote the welfare of children. It does not in my view give evidence of cases where professionals or the system have willfully ignored the needs of the children (although there appear to be individual professional failures to some degree in some of the cases, there is insufficient information to be clear about the rest). It certainly doesn’t give evidence of this being a systemic issue. If Women’s Aid don’t mean to say this, then they need to think more carefully about their choice of words.

The press release calls for independent national oversight of the implementation of PD12J. Of course, the judicial system has inbuilt oversight through the appellate process, and through systems for complaints against professionals (whether they be judicial, legal or social work). It is fair to say that the oversight through the appellate system may have been weakened by the draining of lawyers from this area of work – grounds for appeal may not be identified or may be argued unsuccessfully without lawyers to assist the higher judge. Designated Family Judges, Family Liaison Judges and the President of the Family Division himself are routinely scrutinising compliance with this and other practice directions, and issuing reminders and tellings off to the professions where they are not adhered to.

That is not to say that I think implementation of PD12J is complete or adequate. It isn’t. For example, in my experience judicial and professional understanding of coercive control and its debilitating effect is sometimes poorly understood – it is very hard to bring a true coercive control case off the page when judicial focus remains on limiting the number of incidents by reference to the “most serious” – only physically serious and recent incidents seem to “count”. Current judicial workloads militate against the sensitive and time consuming consideration that coercive control cases demand. But I’m not entirely sure how independent oversight would help or what it would look like. If I had a pot of money to spend on improving things I’d spend it on the frontline and on training, not on layers of bureaucracy.

But, just as my view is anecdotal, the cases in the WA report don’t really provide evidence of the PD being routinely ignored. And even if they did, based upon a sample of 7 families, this would not be evidence of a systemic failure.

It isn’t possible to track down all of the cases, but at least one is available publicly – and I think it is important to do so, because it appears from reading the Women’s Aid report alone to be an egregious failure.

 

The P Case

The P case is but one of the twelve identified, but it is illuminating to cross reference the Women’s Aid and the SCR report – in my view it highlights the tendentious nature of the Women’s Aid report. In this case the full SCR has been published – it is a very detailed consideration of what went wrong and why. Many of the other cases relied upon were ones where the Women’s Aid had available to them only the executive summary, not the full report.

The full SCR in the P case referred to can be found here (I’ve set out quite a lot, but have also had to leave out quite a lot so anyone with enough stamina to check my selections can use the link) :

At 6.2.1 it is confirmed that : “…the decision making of the court is outside the scope of this Serious Case Review.”

There were some criticisms of an individual CAFCASS Officer. See 6.2.4 – 6.2.6 :

…FCA1 [the CAFCASS Officer who did the safeguarding letter] did not identify the statement that FP had told his wife that he understood why fathers kill their children and consequently he did not discuss this with either parent and did not factor it into any of his analysis of the risks. In addition, there is no indication that domestic abuse or FP’s alleged controlling behaviour was discussed during the safeguarding call between FCA1 and MP on 9 July 2014. This review has found that FCA1 probably did not read the application in its entirety.

FCA1 also incorrectly believed that the contact agreed by the court had been determined by the Local Authority although he had no information or evidence to support this belief.

It is impossible now to say what action would have been appropriate if FCA1 had read the application to court more carefully and had addressed these issues with MP and FP. However it may have been appropriate for him to have considered recommending the suspension of contact pending the completion of the Section 7 report.

Further, at 6.2.9, the authors caution against “hindsight bias” :

There is a danger of hindsight bias when considering this issue with knowledge of the tragic events that unfolded. There is no clear evidence that FCA1 should have recommended suspension of contact on either of the occasions that he advised the court regarding contact arrangements and this review goes no further than to say he could have considered recommending this. In addition it is important to note that, although the court order did not stop FP from having any contact with the children it did reduce the amount of contact and prevented overnight stays. Furthermore this was in line with the children’s expressed wishes and feelings and both MP and FP agreed to the outcome.

Also worth repeating in full is this passage:

6.2.13  It is important to acknowledge that the children were killed before CAFCASS had completed the Section 7 report or the court had made a final order regarding contact so it is impossible to know what would have been ordered. Furthermore the catastrophic events of 22 October 2014 could not have been predicted.

6.2.14  By taking the lives of his children and himself, FP joined a small group of people, almost exclusively men, who have deliberately set out to kill their children. In ‘A Taxonomy of Male British Family Annihilators, 1980-2012’ Yardley, Wilson and Lynes consider 59 cases reported in newspapers of British men who murdered their children during the 33 year period in question. In 39 of the 59 cases (66.1%) family break-up was reported to be the primary motivation for the annihilation.

6.2.15  Yardley, Wilson and Lynes identify four sub categories of family annihilator but conclude that they are all linked by “masculinity and the need to exert power and control in situations when the annihilator feels that his masculinity has, in some way, been threatened.” They do not identify any features that could help agencies predict whether an estranged father was likely to attack or kill their children and add that the vast majority would never dream of doing so. Consequently they state that children still should be given access to their fathers. [my emphasis]

At 6.10.5 having identified that the work of the allocated officer was overly dependent on the work of FCA1 (work to first hearing team) the SCR Authors go on to say

The author of the CAFCASS IMR has reported that whilst CAFCASS is encouraging staff to complete work as early as possible it is not uncommon for work to be completed in the final four weeks of the 12 week period allowed by the courts and this is usually reasonable as long as the case has been screened for immediate risks that may require action. In this case FCA4 did screen the case and wrote a detailed case plan on 20 August 2014 and had other commitments that would have made it difficult to carry out this work sooner. There is no indication that she would not have filed her report within the necessary timescales. Nevertheless it is acknowledged by CAFCASS that the delay in commencing this work was not ideal.

In my experience this is pretty typical.

In the conclusion:

In the light of the concerns raised by MP [the mother] this review believes that CAFCASS should have considered recommending that contact be suspended whilst assessments were ongoing. Such judgements are difficult to make at the time and it is considerably easier to criticise with the benefit of hindsight than it is to make the correct judgement at the time. This review does not conclude that contact should have been suspended but does conclude that this should have been considered.

Although the court made an order for contact the amount allowed was a reduction in what had gone before, was in line with the children’s wishes and was made with the consent of both parents…

in light of the information contained within MP’s court application FCA1 should have explored the issue of FP’s mental health more thoroughly than he did.

Nowhere in the 19 Child Homicides report is there any reference to this research or to the views of the authors of the SCR set out above, or indeed a link to the full report, which is very illuminating and dos not in my view support the overarching proposition behind the Homicides report that there is a systemic or cultural failure in the court system. At most the work of one FCA fell below standard, but it is clear that there is no finding that this was causally connected to the murder of the children, which is in terms said to have been unforeseeable.

If the mother quoted by Women’s Aid in their publicity mother IS the same mother in this SCR, it appears that her view that the court process was in some way responsible for the tragic events that occurred (as implicit in the wording of the petition and explicit in the SCR) was listened to but not accepted by the authors of the SCR. Whether or not the authors of the SCR were right, it is surprising from an ethical view that this divergence of view was not transparently flagged by Women’s Aid.

The Women’s Aid report is critical of the extent to which childrens’ views are ascertained in the court process, and simultaneously on the over-reliance upon those wishes once obtained. It appears from consideration of the SCR that much of the examples given in relation to this are drawn from case 10 (the P case). In the SCR the authors consider the steps taken in the court process to ascertain the childrens’ wishes to be appropriate, and consider the approach taken to their views as one of several factors in deciding interim contact to have been appropriate given the facts as known at the time.

It is difficult to be critical as I have of a report like this – particularly because in such a politicized area no doubt this blog post will be recruited to one side of the divide or other. The report is no doubt well meant, and it does make some valid and important points, which I worry will get slightly lost. I’ve already mentioned the need to develop our approach in relation to coercive control, but other important points include :

  • The mistaken view often held by professionals (and trotted out in initial assessments day in day out) that there is no role for the local authority because the risks have reduced as a result of parental separation, when in fact the risks often escalate following separation. I’ve seen this myself in a case recently which involved some very concerning controlling but non-violent behaviour post-separation, and I was not prepared to advise my client to agree contact when I suspect she would readily agreed had I suggested it. The police were not interested.
  • The mistaken understanding of filicide as a loss of control when in fact it is the ultimate manifestation of the need to exercise of control.

Women’s Aid remind us of the gendered nature of violence, and caution against describing violence as a feature of a relationship rather than as an act of abuse by one person against another – this they say is a failure to identify who holds the power. Violence is undoubtedly gendered and such failures of analysis undoubtedly happen. But violence may also be carried out by both men and women and may be mutual in some destructive relationships. Identification of where the power is held is a valid aspiration, but difficult to achieve if one is to start from the proposition that allegations of violence may be true or false, that is to say if one is to start with an open mind. The court can no more accept all allegations of violence or abuse without proper scrutiny than it can treat them all as malicious and manipulative lies. I have seen controlling behaviour of many different sorts, and sadly sometimes the court process is manipulated both by perpetrators using the process to apply pressure upon or wear down vulnerable ex-partners to agree contact, and in other cases by the making of allegations of domestic or sexual abuse, substance abuse or mental instability – both are manifestations of controlling behaviour.

And finally, it is repeatedly said that a violent father cannot be a good father. Let me repeat that domestic violence is a grave failure of parenting that does not go away as soon as the last incident fades. But the framing of this by Women’s Aid goes further even than Sturge & Glaser, and leaves little room for redemption through genuine remorse and apology, through treatment or personal development. It treats parents as binary ciphers : “good” or “bad”, without recognition of the complexity of parenting and the long term importance of parents to children – even if they are not very good parents. It sees risk as static and as existing only in permitting contact, not in preventing it (how many teenagers run to their idealized but risky parents when things get tough with their main carer?). It treats contact as all or nothing (this is why contact applications are said to be 99% successful because no distinction is drawn between applications concluding with an order for annual indirect contact or limited supervised contact and those where unrestricted contact is granted). And life is more complicated than that. As children and as adults our parents are important to us even when they fail us badly. There will be cases where that relationship cannot safely continue but to write off a parent without a proper balancing of both risks and benefits is to fail to recognize the breadth and complexity of responsibility we bear for putting children first.

[update 26 Feb 2016 : Julie Doughty pointed out to me that there is a Research Review report also published by Womens’ Aid, see here, which is more broad ranging and places less reliance on the Barnett article. I’ve begun but not been able to complete reading that document but felt it was fair to flag up that this document is also available and appears to form at least part of the background to the 19 Child Homicides report itself (even if that is not very clearly signposted).]

[update 21 September 2016 : Following the previous update…

I said some time ago I would read this research study – I now have (belatedly). It does not fundamentally change my view, although it is an interesting document.

The report, Safe not sorry: Supporting the campaign for safer child contact,  is by Dr Ravi Thiara and Dr Christine Harrison Centre for the Study of Safety and Wellbeing University of Warwick 2016 and was commissioned and published by Women’s Aid.

It has an extensive list of references, some of which I would like to follow up when I am able, but many of which are the author’s own or predate the matters at hand (i.e. they are several years old and predate in many cases the implementation of PD12J – proper application of which is one of the main subjects of Womens’ Aid’s complaints). I was particularly interested in the concept of 3 Planets, which I recognise as a curious feature of the different strands of family court work and, in my own different language, have identified in blog posts before.

‘three planets’, characterised by contradictory professional ideas, practices and approaches to domestic violence (violent male partner), child protection (mother failing to protect) and child contact (‘good enough’ father) which display few linkages and differing constructions of women and men.

The report is described by Womens’ Aid as a research review, but I have to say the whole thing read rather circular way as the Homicides report relies upon it and it in turn relies upon the homicides report (and the original homicides report). So, whilst I’m not dismissing the report, it does strike me as open to criticism for being slightly tendentious, and that the authors have been chosen for their prior views.

The report talks about

The tendency to approach domestic violence as ‘conflict between parents’ and an erroneous view that women influence children against contact with fathers, comes to the fore and pushes the views of children themselves out of the picture. [page 10]

What is troubling about this is not the suggestion that this is a criticism unjustifiably made of mothers, but the apparent inability to acknowledge that in some cases women may influence children against contact. As with the Womens’ Aid report the writers do not seem to be able to hold in mind the possibility that womens’ accounts may not always be the accurate or complete story (for all sorts of reasons).

Similarly, it is said that

Research draws attention to the strategies adopted by perpetrators to get alongside professionals, including in contact proceedings, and to minimise the extent and impact of their violence (Bancroft et al., 2012), as exemplified by the above mother’s experience. This includes suggesting that violence is mutual, and/or shifting the responsibility on to women. This contributes to the ‘disappearance’ of histories of violence and the readiness with which abusive men are rehabilitated (Harrison, 2008).

I agree that in some cases minimizing the impact of violence or suggesting it is mutual is a reality and even a strategy adopted by perpetrators. But there is no sense in this document that in some cases a parent may not be minimizing but may in fact be accurately describing an event which was less serious than the victim now claims. Is it impossible to think that in some instances women are responsible, at least partly, for violence? It seems so.

The authors raise good points about CAFCASS screening for DV, which I agree remains inconsistent. I have seen CAFCASS safeguarding letters both overreact to domestic abuse and to minimise it.

As with the Womens’ Aid report there is loose (or intentional?) use of strong and emotive language. The family courts are said to “launder” domestic violence, which to me suggests complicity. Again, if this is the allegation that is really made, it is a serious one and should be evidenced. Whilst I see evidence of failures and inconsistency (which I didn’t need either of these reports to alert me to) I don’t see evidence of complicity.

This is a powerful document if one is merely looking at womens’ accounts and experiences. But a court is not just about looking at the accounts and experiences of one party or one parent or one gender. It is about trying to work out what has gone on, trying to assess the risks and make safe and fair decisions. It is wholly unclear from this document whether or not the women talked about are women whose perpetrators have been convicted of abuse or found by the family court to have committed abuse OR if they are women who have merely alleged abuse (some of which we can reasonably assume are accurate and truthful allegations, some of which we can reasonably assume are at least partially inaccurate or even untrue). As such I think the value of this document is diminished because it is so heavily subjective (and I mean that in two senses, subjective from the perspective of the author and subjective from the perspective of the original historians giving accounts of their experience of family courts).]

[Updated 16 Oct 16 : I’ve just been sent a link to this blog post about The Women’s Aid report, which makes some similar points to mine, but also includes a review of SCRs looking for patterns of perpetration amongst both male and female parents.]

 


The Press Release :

Women’s Aid launches ‘Nineteen Child Homicides’ report and Child First campaign

“No parent should have to hold their children and comfort them as they die”

XXX, mother to X and Y [edited], both killed in 2014 by their father

 

The national domestic abuse charity Women’s Aid has today launched a major new campaign, ‘Child First’. The campaign calls on the family courts and the Government to put the safety of children back at the heart of all decisions made by the family court judiciary. Child First launches alongside the report, ‘Nineteen Child Homicides’. The report tells the stories of the cases of nineteen children, all intentionally killed by a parent who was also a known perpetrator of domestic abuse. These killings were made possible through unsafe child contact arrangements, formal and informal. Over half of these child contact arrangements were ordered through the courts.

Key Statistics from ‘Nineteen Child Homicides’

  • 19 children killed from 12 families
  • 2 mothers killed
  • 2 children seriously harmed through attempted murder
  • For 7 out of the 12 families, the contact had been ordered through court

 

Polly Neate, Chief Executive of Women’s Aid, said:

“There is a misguided belief within the family courts and among judges that, because a relationship has ended, so has the domestic abuse. Survivors frequently report to us that they and their children are re-victimised and traumatised by their abusers, even after separation, through the family court process. This trauma makes it extremely difficult for the non-abusive parent to advocate clearly and effectively for the safety of their child. In the criminal courts, there are protection measures in place to give victims fair access to justice. This is not the case in the family courts. For example, it is common for victims of domestic abuse to be cross-examined by the perpetrator. This must end.

“The desire by the family courts to treat parents in exactly the same way, and get cases over with quickly, blinds them to the consequences of unsafe child contact. As the report ‘Nineteen Child Homicides’ shows, these consequences can be fatal. The culture of, ‘contact with the child, no matter what’, must end. Less than 1% of child contact applications are refused[i], but we know that domestic abuse features in around 70% of CAFCASS caseloads, and in 70-90% of cases going to the family courts[ii]. Clearly, the system is failing. The best interests of children should be the overriding principle of the family courts, but far too often this is simply not the case.”

XX, mother to X and X [edited], both killed in 2014 by their father, said:

“No parent should have to hold their children and comfort them as they die, or be told that their child has been harmed in an act of revenge or rage. Having experienced the family court judicial process and its protocols, the tragic outcome that occurred – whilst court proceedings were still ongoing – exposes flaws and malpractice within family law.

“All too often children’s voices are not heard or acted upon. Attending court is an emotional, frightening and at times a traumatic experience which nobody decides to initiate lightly – but does so to protect their children’s physical and emotional wellbeing.”

Women’s Aid urges the Government and family courts to  undertake two key recommendations from ‘Nineteen Child Homicides’, in order to protect children and their non-abusive parent, and stop further avoidable child deaths. These form the two campaign asks of ‘Child First’:

  • Further avoidable child deaths must be prevented by putting children first in the family courts – as the legal framework and guidance states.

 

Ensure that domestic abuse is identified and its impact fully considered by the family court judiciary. Child contact arrangement orders must put the best interests of the child(ren) first and protect the well-being of the parent the child is living with, in accordance with ‘Practice direction 12 J Child arrangements & Contact order: Domestic violence and harm’. There is an urgent need for independent, national oversight into the implementation of Practice Direction 12J.

  • Make the family courts fit for purpose through the introduction of protection measures for survivors of domestic abuse

Ensure survivors of domestic abuse attending the family court have access to protection measures, similar to those available in criminal courts. Survivors of domestic abuse should always have access to a separate waiting room or area, and judges must ensure there is time for the non-abusive parent to leave court safely before releasing the perpetrator.

Professor Evan Stark, Ph.D, MSW, Professor Emeritus, Rutgers University, said:

“Nineteen Child Homicides describes one devastating consequence of the Family Court’s failure to make safety a priority in contact orders.  But child deaths from unsafe contact are only the most tragic outcome of the huge gap that separates the justice for abused women and the failure of the Family Court to protect children and the non-abusive parent.  Child First aims to close this gap.”

Sarah Forster, family law barrister and Deputy District Judge, said:

“I am supporting Child First to help drive the culture change needed within the family courts to keep children safe. There must never again be a report such as ‘Nineteen Child Homicides’. Everyone within the family court system must work together to stop avoidable child deaths. It can, and must, be done.”

John Bolch, solicitor, family law blogger and writer, said:

“As a former family lawyer with over 20 years of experience, and having seen all too many such tragedies reported, I wholeheartedly support this campaign.”

“It is, in my view, high time that the Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father.”

Lord Justice Wall, 2006

To find out more about the campaign and download the report, go to www.womensaid.org.uk/childfirst

To sign the Child First petition go to https://you.38degrees.org.uk/p/childfirst

For more information or to arrange interviews with Child First spokespeople or case studies, please contact Alice Stride in the Women’s Aid Press Office on 0207 566 2511/ 07807 218687 or a.stride@womensaid.org.uk.

ENDS

NOTES TO EDITORS

 Nineteen Child Homicides Executive Summary

Nineteen Child Homicides tells the stories of the cases of nineteen children who were intentionally killed by a parent who was also a perpetrator of domestic abuse, through unsafe child contact arrangements, informal and formal. Our focus is on children, but in some of these cases, women were also killed. The blame for these killings lies with the perpetrators. However, we have concluded that these cases demonstrate failings that need to be addressed to ensure that the family court, Children and Family Court Advisory Service (Cafcass), children’s social work and other bodies actively minimise the possibility of further harm to women and children. This study reviewed relevant Serious Case Reviews for England and Wales, published between January 2005 and August 2015 (inclusive). It uncovered details of 19 children in 12 families who were killed by perpetrators of domestic abuse. All of the perpetrators were men and fathers to the children that they killed. All of the perpetrators had access to their children through formal or informal child contact arrangements. As well as 19 children killed, the perpetrators also attempted to kill two other children at the time of these homicides, and killed two mothers.”

You can find the report at www.womensaid.org.uk/childfirst

Practice Direction 12 J

This Practice Direction applies to any family proceedings in the Family Court under the relevant parts of the Children Act 1989 or the relevant parts of the Adoption and Children Act 2002 (‘the 2002 Act’) in which an application is made for a child arrangements order, or in which any question arises about where a child should live, or about contact between a child and a parent or other family member, where the court considers that an order should be made.

The purpose of this Practice Direction is to set out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence or abuse.

About Women’s Aid

Women’s Aid is the national charity working to end domestic abuse against women and children.  Over the past 40 years, Women’s Aid has been at the forefront of shaping and coordinating responses to domestic violence and abuse through practice. We empower survivors by keeping their voices at the heart of our work, working with and for women and children by listening to them and responding to their needs. We are a federation of over 220 organisations who provide more than 300 local lifesaving services to women and children across the country. We provide expert training, qualifications and consultancy to a range of agencies and professionals working with survivors or commissioning domestic abuse services, and award a National Quality Mark for services which meet our quality standards. Our campaigns achieve change in policy, practice and awareness, encouraging healthy relationships and helping to build a future where domestic abuse is no longer tolerated. The 24 Hour National Domestic Violence Helpline on 0808 2000 247 (run in partnership with Refuge) and our range of online services, which include the Survivors’ Forum, help hundreds of thousands of women and children every year.

[i] Figures for 2003 show that less than 1% (601 out of 67184) of contact applications were refused, even when there is a history of violence (Aris & Harrison, 2007; Giovanni, 2011).

[ii] Domestic violence features in 60-70% of CAFCASS caseloads (Domestic Violence Commons Enquiry, 2008) and in 70-90% of cases going to the family courts (this includes public as well as private law proceedings) (HMIC, 2005).

Alice Stride, Media Officer, Women’s Aid

Obligatory year-in-review post

In fact I don’t think these posts are completely obligatory – as demonstrated by the fact I’ve not done one before. But they are ten a penny. No, I’ve sort of compiled this Annual Review for my own purposes – so feel free to give it a miss. It may be self-indulgent rot.

I know posts on Pink Tape have been more thinly spread this year, but I wanted to do a little stock take. This is the tenth year of Pink Tape, it will hit a full decade in July. That’s a long time in the world of blogging – back in the day I frequently had to unpack the abbreviation and articulate the concept of web-logging in apologetic tones to people who were wearing their “new fangled flash in the pan” face. Now everyone who is anyone has a blog. Although many of them are pants (incidentally there are some really fantastic legal blogs that have emerged over the last couple of years, in particular The Secret Barrister and BarristerBlog which are just awesome and epic and very, very clever and devastatingly restrained in a way I could never be.

Anyway, Pink Tape is of a rather different ilk to those two, but it seems to entertain some and, whilst I am a little sad that there are fewer posts as time goes on and other pressures impinge, I am reminded that Pink Tape is something of which I am proud, and which is actually quite important to me. So I don’t want to stop pink taping. And one of the main reasons my output here has been less is because my output elsewhere has been greater – mainly on The Transparency Project. And that too is something which would never have come about but for Pink Tape. I am proud of and committed to them both.

So, here goes, Pink Tape’s 2016 in review :

January : In the context of the Poppi Worthington case, I wrote about the different standards of proof as between family and criminal jurisdictions (you’ll recall that Poppi’s father was acquitted of charges in relation to her death, whilst the family court found him culpable of a sexual assault upon her shortly prior to death). Debating the appropriate standard of proof for really serious stuff. This issue has recurred up in a number of different context (eg see Ellie Butler posts on The Transparency Project blog) and is a real rumbler that I think there is a real lack of societal consensus on. I picked up on the theme of the interplay between Family and Criminal Courts in September – it seems this is very poorly understood area, even by some MPs.

Also, in the January of my 42nd year, I took up running. And by some miracle I have kept it up. I began the year unable to run for more than a minute without turning beetroot red, peaked in September with a half marathon, and have gracefully declined to a resting position at year end, where I am still crap but quite a bit fitter than I started out. And a lot happier. The President however, had his own new year’s resolution : thinner bundles (and, like all good new year’s resolutions it was ignored after a week) : It’s January – we’re all trying to slim down.

In February Louise Tickle’s article about Annie of Surviving Safeguarding was published in The Guardian, the culmination of a whole lot of hard work and emotional investment by Louise, Annie and to some extent myself : All calm on the surface. Louise told a remarkable story, and she gave readers an insight into a system that is rarely shown in a balanced way. And I wrote one of now several things about domestic violence, Women’s Aid approach to it. That’ thread is still running, now over on The Transparency Project here, but you can read my February post here : Nineteen Child Homicides. I also wrote about this issue from a different angle in Talking AT & OVER not TO & WITH.

I winced when looking at the archive for March. I wrote that I was “steeling myself to re-write my book”. In possibly my most impressive ever work-avoidance endurance challenge, I have been “steeling myself” ever since. Actually, I’m nearly there, but it ought to have been done long before. It is not only Pink Tape that has been pushed further back in the queue this year.

It is interesting now to look back with the benefit of hindsight at a post I wrote in March about the rash of references to “collective responsibility” that appeared in judgments, along with threats of punitive costs orders. I said this :

But in our overheating, fritzing, jittering family justice system there are serious imbalances between responsibility and remuneration, between expectation and human capability, between workload and manpower. Costs orders are a symptom of the dysfunction and of judicial frustration, but they are not the cure. They are medicine of last resort which will not make the patient better, but will cause some other iatrogenic expression of dysfunction.

As we now know, by August even the President was acknowledging the wheels were coming off (or at least that that we were driving way too fast with no functioning brakes or seatbelts in the direction of a brick wall) – see below. And I think we’ve worked out over the course of the year that costs orders don’t seem to be any sort of solution at all. In the last couple of week’s we’ve had what Suesspicious Minds has rightly identified as the worst case of 2016, and it’s illuminating how the failures of the LA solicitor seem to be readily understood as a symptom of the fatigue inherent within the system :

The Local Authority solicitor, Ms McMullan failed to take a co-ordinating role in relation to the evidence and/or the structure of the case; I sensed that she reacted to the requirements of the timetable and the demands of her client and never proactively managed the case; she ended up as a fire-fighter and appeared to rely heavily on Mr. Shiels for all decision-making. I do not believe that her conduct fell below an ordinary professional standard (and she did not lose ‘objectivity’ as was alleged), she simply did not rise to the demands of running a complex case, did not challenge decisions, and did not develop a sense of what the case was and where it was going. Had she undertaken her role with more attention to the detail of the case, I am sure that the US provenance of the video would have received greater prominence in her thinking. Her “oversight” in failing to disclose the montage may have been the result of a demanding caseload.

This is where we have come to. A system where this is allowed to happen because of overwork is a broken one – and although this is a really heinous case of injustice we aren’t really surprised any more. And this is why in August I got a mite cross (see below).

I wrote little in March and April because I went to the states on holiday for 3 weeks to see family. But when I got back I wrote about the bizarre judicial elections system in the US, which has resonated more for me as the year has worn on, what with Trump, and the British Press’s “Enemies of the people” antics : You say pot-A-to, I say pot-ah-to…

In May the issue of covert recording cropped up, as it has done in a number of judgments this year and last. (see also Transparency Project’s recording guidance and a post I wrote about the topic here). This particular one was the shocking case dealt with by Mr Justice Peter Jackson, where parents sewed bugs into their child’s school uniform to record comments made whilst at school. It didn’t go down well. See : Just for the record…

In this month I wrote about the increasing number of requests for help I had from people without funds or who really needed to instruct a solicitor not a public access barrister. I offered some guidance in this blog post : Please and thank you. It hasn’t quelled the rate of enquiry as far as I can see. I also wrote a blog answering the question : Is it ok to be represented by a barrister who sometimes acts for social services?

And I ran a 10k. Big milestone.

In June I wrote about the case of Ellie Butler, following the convictions of her parents for murder / charges in connection with her death. Ellie Butler murder – some of the things the press haven’t told you. And also participated in a collaborative blog post with others about Ellie’s case here. And I also bemoaned how hopelessly amateurish our approach to transparency, both in terms of my own attempts to write about the Butler case : What price transparency?, and generally  in The Guardian : Why are we still waiting for transparency in the family courts? (longer version on Pink Tape here).

And we also first heard in June about the re-hearing of a fact finding hearing in relation to a now adopted child, with a view to the parents attempting subsequently to challenge the adoption orders (Re X (A Child)). The parents had been acquitted in the criminal court. We learnt only recently that the parents wished to abandon their attempts to have the matter re-heard, only to find that The President now felt that the re-hearing should happen anyway for the sake of the child’s life story – with or without their co-operation. So, a remarkable case in many ways – but not – as we had expected back in June – a potential re-run of Webster.

Also, another 10k. Easy peasy now.

By July I was contemplating the difficulties of juggling The Transparency Project (which had just secured its’ first funding grant), my core professional commitments, family life (and half marathon training) with Pink Tape in : Drum roll, trumpet fanfare, dancing pokemon….

And then in August, having had no correspondence from him all year, the President began to issue his Views once again. There was talk of reforms of CAFCASS in the form of local budgeting, reform of the tandem model, settlement conferences and of the increasing workload of the family courts… So much change apparently on our horizon, first mentioned in a postcard from the President. Where were the public consultations?

In A Christian Concern, I got hot under the collar about the gap between media reports of a case in the “secret family court” and the very different reality as set out in the published, but unmentioned, judgments.

In September I ran the Bristol half marathon to raise funds for The Transparency Project. I am so VERY proud of myself for doing so. Even if I have somewhat decomposed into a flabby heap since (I nearly died doing the 4 mile Boxing Day run this week). The President was too busy to run, and instead penned View 15. And I had a toys out of pram moment in response : Really serious and imminent. Fortunately I was not alone, the Chair of the FLBA also had a few words to say (although so far as I can see he’s has a similar tumbleweed response to my own). Actually, September was a bit rant-tastic, as I finally blew my stack about The Archers scriptwriting and that infernally irritating Anna Tregorran “barrister” concoction. Yes, in September, we truly heard the angsty screams of the family lawyers (well, of this particularly one anyway). And Mr Justice Peter Jackson “broke the internet” with his human friendly judgment (albeit that the press got a little overexcited about the use of a smiley emoji).

Next up October – in which i had an argument with a mediator (I know, right?), wrote some more about domestic violence in a post about the APPG Report on DV and another about the “We Believe” phenomenon : We Believe – doing violence to due process. Also, i actually took half term off and went on holiday with the kids, which is frankly unheard of. I’ve worked hard this year to maintain a good work life balance. I’ve not always got it right, but with each year that passes its importance becomes clearer. I’m no good to anyone if I’m a gibbering wreck. And frankly, what’s the point of it all if you can’t enjoy life too? In October I was named Bristol Law Society’s Barrister of the year, which was rather nice. Clive Coleman looks somewhat bewildered…

November’s posts focused on communication and inter-personal relationships : Why is it so hard to talk? was about how we struggle to talk across silos about domestic violence, and A plea for thoughtfulness… was inspired by Annie of Surviving Safeguarding, and about how clients experience professionals and how we conduct ourselves. The recently published Transparency Project’s adoption targets study was also on my mind – as yet another topic we find almost impossible to actually engage across camps about, dismissing the “other side” by repeating our own mantras like incantations, always forgetting somehow to consider or provide the evidence.

And finally we reach December – where i drew paralells between the discontent behind the Brexit and Trump votes and the rumblings about the family court. We ignore clamours of disquiet at our peril (of which see my forthcoming post about Sir Mark Hedley’s “The Modern Judge”, where he ponders whether the judiciary have the consent of society to exercise the draconian powers they hold). That somewhat rambly post was called Dance of the Synapses… And as mentioned above we received judgment in the truly awful GD v BD, which I covered on The Transparency Project here, and which is but one in a very very long line of HRA cases which have been published this year – and this year they are not all about misuse of section 20. Also in December I wrote what someone has described as a “love letter” to my husband, but which he evidently does not think qualifies as such – he thinks is still too sweary and has far too much toilet humour in it : Hey, working single parents – how the hell do you manage this sh*t?. For those who care, he’s making a remarkably quick recovery, thanks. I keep making him carrot soup. He is desperate for me to go back to work…It’s a good incentive. Anyway, I hope you will forgive me for not blogging an awful lot in December, it’s been a little bit frenetic (And latterly, a little bit squiffy thanks to my dad’s excellent sloe gin).

So I suppose where I’ve got to is this : Sometimes Pink Tape has to give way to other things. And that’s okay. It is after all those other things that make Pink Tape what it is (for better or for worse) : my professional practice, my family life, those interests which initially drove much of Pink Tape’s output but which now find a voice through The Transparency Project… As I get more senior and as more of my cases become more complex and protracted, it is even more difficult to juggle all of this. This year I managed to post something to go in the email that drops into your inbox on most Monday’s, and I reckon I can keep it up in 2017, even though it is shaping up to be another busy year in a number of areas. I really believe that time is elastic – you can fit in a lot more than you think, you just have to be careful not to stretch it too far.

Bring on 2017.

We Believe – doing violence to due process

Note : I’ve used “r*pe” throughout this post to stop it being flagged as rated 18. I’m not being oversensitive, but use of the full word without asterisk can cause things to be blocked.

 

This blog post has been rumbling around inside me for some time, waiting for me to find time to write it. It has been giving me indigestion. And it won’t go away. This last weekend’s frenzied and ill informed condemnation of the Ched Evans retrial verdict has galvanised me into action. Nobody seems able to talk about it without accusatory language.

I am really concerned about the conversations we are having (and not having) in public about domestic abuse and about violence towards intimate partners. We are talking about it all the time, but I don’t think we are doing very well and I don’t think the way we are talking about it is advancing the cause of condemning such violence and of making people safer. I think the debate is polarising and unhealthy, and I think it is diminishing the complexity of the issue. It is promoting disengagement and rejection by some groups of the fundamentally crucial and righteous message that violence towards those we love or have loved is unacceptable, and is harmful to those children who hear or see it. Our public debate is as dysfunctional and toxic as the abusive individual relationships we are talking about, and the intractable battle to control and dominate the narrative is sadly familiar to those working in the family courts. We see it played out in private and in individual cases, but it happens on the macro level too – and the one drives the other.

The motif that sums this up for me is the hashtag #webelieve (or #ibelieve or #ibelievewomen). Because ultimately, what is this hashtag other than a badge that says we believe anyone who calls themselves a victim of domestic abuse or sexual violence, and we are not prepared to look at the individual circumstances of each case before making our minds up? #webelieve is not prepared to consider the evidence, is not prepared to accept the outcome of a trial process, is not prepared to countenance the possibility that some (perhaps a very few) of the people #webelieve might have misremembered, misidentified, have been coached, exaggerated or even falsified their account (yes, false allegations may be rare but they do happen). Or just that the evidence isn’t there to prove the thing to the necessary standard.

#webelieve is ostensibly about securing justice for victims – ensuring that they are heard, believed, that they are not re-traumatised by a brutal and (potentially) abusive trial process, or put off from pursuit of their complaints. Those are all entirely legitimate aims. But the sad reality is that since it’s inception in (I think) about 2014 in the USA in connection with sexual assault and campus r*pe issues – see here for example) #Webelieve has become more about moral outrage than actual justice. And anyone who questions the premise is said to be a r*pe apologist. Therefore, I fully expect to be tarred and feathered for questioning the narrative. Bring it on. I want actual justice for women (and men) who are victims of physical or sexual violence. And we don’t get that by sidestepping a proper process or by failing to sift the truthful, evidenced allegations from those that are untrue or can’t be substantiated – what we get with a blanket #ibelieve is a degradation of the issue and a reduction in the perceived credibility of genuine victims.

We see this in debate about campus r*pe, in discussion about celebrity domestic violence, in treatment of domestic violence that doesn’t quite fit our male perpetrator : female victim (once a perp always a perp) model (we really can’t cope with that, see here – life is complex, relationships are messy. Even women do bad things sometimes). And of course we see it in connection with the historic child sex abuse inquiry and the broader debate – all attempt at forensic rigour appears to have simply been abandoned and an allegation is as good as truth, is equivalent to proof. Except when it all unravels as demonstrably untrue or impossible as has happened in a significant number of celebrity historic SA cases.

Take the Ched Evans acquittal last week. Whatever we think of Ched Evans (and I doubt many of us think very highly of his approach to women given his admitted conduct) a jury of our peers has heard all the evidence and was not sure enough that he r*ped X to convict him. Perhaps they thought he was entirely innocent (of r*pe, rather than his general behaviour), but we will never know. Whatever the ins and outs of the jury room discussions though, that’s an end of it. Except that twitter has gone wild. And (I’m sad to say) the Women’s Equality Party (@WEP_UK) were feverishly tweeting about the “flawed retrial [that] raises grave concerns about justice for victims of sexual violence” (and less feverishly ignoring tweets from actual lawyers pointing out that the trial appears to have been conducted in accordance with the law and with due regard for the restrictions on the introduction of evidence about the victims prior sexual conduct). They said “This put the victim on trial, not the accused. Historical evidence of consensual sex does not preclude the possibility of r*pe.” Notwithstanding the obvious fact that if someone has suffered the horror of r*pe, the experience of giving evidence about that r*pe will be horrid, it is and I hope will always be considered necessary for evidence to be adduced of the fact of the r*pe before someone’s reputation is ruined and life altered. This does not mean a victim is “on trial”, but it does mean her (or his) evidence is being tested. That can be tough – and I don’t underestimate that : r*pe is awful, as is reliving it. But it is also awful to be wrongly accused, condemned or convicted and we must never forget that either. We must strive to make sure trials are fair to all, but we can’t abandon them altogether. I don’t suppose WEP really mean to suggest that the burden of proof should be reversed in these cases, when they say “historical evidence of consensual sex does not preclude the possibility of r*pe”. I agree it doesn’t, but where exactly does that get us? If it did preclude the possibility of r*pe I guess the trial would have been unnecessary. And I guess if #webelieve a survivor, survivors per se – and know better than any jury that actually heard a survivor’s own evidence, our trial process is also worth pretty little. Juries get things wrong, judges get things wrong – but very little of what I’ve seen about Ched Evans’ trial appears to set out a proper legal basis for complaint, it’s largely just raw disbelief – because someone has made an allegation…(one or two have quite legitimately complained that the Court of Appeal decision on admission of the new evidence was weak. They are entitled to do so. I don’t feel qualified to comment authoritatively on that).

https://twitter.com/rasasc_london/status/786983226652893189

I commend to anyone banging their head against the desk or slightly confused about this case to read Secret Barrister’s excellent 10 Myths busted about the Ched Evans case, which explains many of the follies out there. As others have pointed out, one can be a bit of a turd, one can treat women like dirt, but in and of itself this does not amount to sufficient evidence to prove the specific crime of r*pe. Much of twitter seems unable to draw the distinction, and I’ve no doubt the hysteria being created by womens’ rights groups about the injustice of Ched Evans’ acquittal is making many real and anguished victims less likely to come forwards. Well done there.

This paucity of intelligent discussion is not a new issue. I’ve been raising concern about the debased and polarised public “debate” about domestic violence for some time. See here for example about the Womens’ Aid 19 Homicides report published earlier this year (I’ve yet to see any acknowledgment or response to the issues I raised): 19 Child Homicides and here : Talking AT & OVER not TO & WITH.

2016 is littered with further evidence of our dysfunctional public debate, our weird distorted victim culture in which the taking on of the mantle of victimhood makes people somehow unchallengeable, or anyone who dares to test that victimhood as good as a perpetrator…I often wonder about victim culture, and whether it has gotten out of control – I’m not sure our insistent victim focus is helping anyone. I noticed today the recent publication of a consultation about vulnerable witnesses in criminal courts – I spotted it via a tweet from Dr Hannah Quirk, who observed the absence of any mention of fair trial for the defendant…

HannahQuirk1
Courts reform gives stronger protection for victims & witnesses-not even a token mention of fair trial for defendant gov.uk/government/new…
29/09/2016, 09:51

Around the same time as the consultation was launched back in September (in the culmination of their campaign launched in January with the publication of their 19 Child Homicides report) Womens’ Aid took their criticisms of the role of Family Courts in failing victims of domestic abuse to Parliament, see here MPs call for end to abusive men using courts against families. The event was foreshadowed and accompanied by a significant (social) media campaign and at the event a number of MPs adpoted the Womens’ Aid line :

Peter Kyle, the Labour MP for Hove, said: “The family courts are being used to perpetrate abuse against extremely vulnerable women … One of my constituents has been cross-examined by her former partner on three separate occasions, the man who beat her, broke her bones and battered her unconscious.”

He said a transformation of family courts was “desperately needed” to end the “abuse and brutalisation of women” via the legal system….

Angela Smith, the Labour MP for Penistone and Stocksbridge…said the family courts needed to properly implement “practice guidance 12 J”, which is supposed to force judges to put the safety of children and their residential parent before the access rights of a violent and abusive parent.

She highlighted the demands in the Women’s Aid report for an end to the cross-examination of a survivor by an abuser in family courts, and for special protection to be brought in, such as separate waiting areas, to keep victims safe from violent partners in court buildings.

Smith said there was a need both to end the assumption that men who were abusive to women could be good fathers, and to embed a culture in the family courts of putting children first…

Keir Starmer, the former director of public prosecutions and Labour MP for Holborn and St Pancras, said it was important to look at the changes made to the criminal justice system to better protect victims of domestic violence – including special measures for victims and witnesses, and the presence of independent abuse advocates – and ask why the family courts were not making similar changes. 

He said there was growing evidence that perpetrators of domestic abuse were using the family courts to continue to harass and control their victims…

The article also made reference to the All Party Parliamentary Group report on Domestic Violence, published in April, which I’ve commented on here which makes some valid points and identifies some real problems, but which shares some of the flaws I think of the Homicides report (no doubt not unconnected to its heavy reliance on the homicides report and Womens’ Aid’s evidence).

A blog post on the MRA-UK site says this :

The blame here lies with the MPs. A lobby group cannot be expected to be balanced. But MPs are under an obligation to represent everyone fairly, and are assumed to be intelligent enough to seek balance. Instead it appears that our parliament can very easily be led by the nose by a lobby group which presses the right emotional buttons.

I don’t agree with everything in that blog post but this is spot on. There is so much more complexity to these issues than is being presented. And there is no balance in the debate.

I don’t doubt or minimise these individual stories. I don’t deny that in those cases, and probably in others, things don’t appear to be working as they ought. But I think we are focusing on the wrong issues. It is the job of a family court to test the evidence. It sometimes feels as if the courts are being criticised for carrying out that job. If the Family Courts are failing sometimes to do it as well or as sensitively as they might (and I know that is so), we need to focus on the barriers to doing the job better and more consistently – not on criticism without acknowledgment or understanding of those barriers, which are largely out of the control of those working in the courts themselves.  Accompanying the Guardian article I’ve cited above was a welter of tweets from MPs, and  a slew of tweets from Womens’ Aid about the (then) culmination of the Helen Archer trial, in which it was asserted the failures were not just about operational and resource issues but a fundamental failure of understanding:

https://twitter.com/womensaid/status/775329558434353152

This was also repeated by Polly Neate (CEO Womens’ Aid) at greater length in articles like the one linked to and here in the Telegraph :

I wish I could say that justice was the outcome for all the real-life Helens. But this is not the case – in either the criminal courts or the family courts.

There is an acute failure in both to understand the dynamics of domestic abuse, especially coercive control. More specialist training on domestic abuse is needed for all who work in them, especially judges.

After the acquittal Womens’ Aid predicted (wrongly as it turned out) that the family courts would fail again:

https://twitter.com/womensaid/status/776126508712812544

And finally, inevitably, the hashtags #webelieve and #freehelen converged :

Thus we saw The Archers (of all things) used as a lobbying vehicle by Womens’ Aid and other DV groups.

There is a fundamental cultural difference between the many groups that support and campaign on behalf of women victims of domestic abuse and the courts. It is not so much the fact of the cultural difference that is the problem as our inability to acknowledge it. Courts don’t do #webelieve, they do looking at the evidence from both sides before making up their minds. Evidence first, judgment follows. Support groups are all about #webelieve. Rightly, from one perspective, they accept what they are told by services users and clients and operate on the basis that if someone says they are a victim they are entitled to be believed. The very real risk of the #webelieve mentality contaminating the evidence and even encouraging the making of allegations is the subject of a whole different blog post (suffice to say that it can both put victims at risk of not being believed and put innocent parties at risk of false allegations or criticism. See here by way of example). It was easy to feel as if the verdict in the Helen Titchener case was right, not just because we were safe in the knowledge it was fictional, but because the listener was in the privileged position that no support worker, no lawyer, no judge and no jury can ever be – a fly on the wall as the abuse happened. Who knows whether a real Helen Titchener would have got off (I think probably not) – even I as a family barrister can see that the trial and pre-trial process itself was nothing like real life and things would have unfolded very differently so it’s impossible to reconstruct with just a tweak (I wrote about the trials here). Helen Titchener’s barrister passionately believed her client, but although she miraculously got her off it doesn’t seem to have made her a better representative (for example her incessant coaching in order to get the “right” evidence).

But in real life we don’t have the luxury of such certainty or inside knowledge or the easy abandon of fair procedure. We have (usually) only the accounts that two people tell us, mutually incompatible as they are. So the #freehelen hashtag was easy. There was only ever one side of the fence we listeners could be on, the side of #solidaritea with Helen, thus signalling our virtuous understanding of the scourge of domestic abuse and coercive control. No need to engage with the messy uncertainties of real life or the very real practical difficulties of securing a finding of coercive control even on the civil standard let alone in a real criminal court :

https://twitter.com/womensaid/status/773945206580375552

Taken to its logical conclusion #webelieve demands that we abandon any forensic process because such process is unnecessary when WE KNOW BETTER. And what’s more it tells us that such process is itself abusive, so those who argue for fair trials are part of the abuse. I reject such binary propositions, such lazy complaints. Court process can be used manipulatively, and in a controlling or abusive way – I have seen it happen and we must all be alert to it. We do fail sometimes to do justice to these cases (I include myself in this). But we cannot abandon evidence for hashtag justice or we are all doomed. We are an intelligent species. We can hold in mind two possible alternate realities whilst we listen and decide. And we must be prepared to do so, not condemning either complainant or accused whilst we carry out that process respectfully and calmly.

It is very sad that there are so many campaigns and campaigners whose aim is to protect women and to educate the public about this awful, difficult, complicated stuff that hurts so many people – and yet somehow many of them have become collusive with the shutting down of proper discussion of the complexities of abusive behaviour and the ways in which the justice system responds. We cannot conquer abuse by silencing or ignoring those who challenge us.

I hope this post doesn’t sound like a vehicle for bashing Women’s Aid or any other group for that matter. I’d genuinely like to have a discussion about this, and am happy to hear where I’m wrong – but sadly that has not happened to date and I’m not holding my breath. I have thought long and hard about whether I’m an inadvertent apologist for the system in which I work, but I hope I’ve made clear I share some of the criticisms that are made of it and welcome what can be learnt by listening to other perspectives. I disagree with much of what the mens rights lobby say about these issues too, and whilst that hasn’t been the focus of this blog post it has been of others. In my experience neither “side” of this debate listens very well to the other.

If #webelieve in justice, we must let each person say their piece before we rush to judgment.