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

To sign the Child First petition go to

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



 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

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

That harms report – part 2



In Part 1 of this blog series, I talked about the broader context and scope of the review.

Here I pick out some specific aspects of the report which held particular resonance or interest for me. Of course, this is selective – the report is huge. I can’t possibly cover and comment on everything. It is also meandering and conversational. Do not expect a neat structure.




The report tells us that there is a perception amongst professionals that false allegations of abuse are made as a sort of game playing or to delay or frustrate applications for contact. It notes, correctly, that the proportion of false allegations is small. But we need to be a bit careful here about what is a ‘false allegation’? It’s difficult to tell because the report refers to a literature review, which refers back to two pieces of research from 2011 and 2013, which many will not have access to. When I think back over my years in practice I can think of many cases where I have successfully resisted the making of at least some findings on behalf of an alleged perpetrator, or where I have been unsuccessful in securing them on behalf of an alleged victim. True, courts do not often make positive findings that allegations have been fabricated, more often they are left in that hinterland of incompatible experiences and memories. But as a matter of law a non-finding means that the allegation was false – even though it may not have been dishonestly made – if I consider all these non-findings it is difficult to accept that the number of ‘false’ allegations (in its broadest sense) is small. BUT, as the literature review that accompanies the report makes clear, the proportion of allegations that are even tested by a fact finding hearing has historically been pretty low (meaning its hard for anyone to really assess the rate of false allegations), and of course the only cases I really see are those which fall within that minority. So here I can see I don’t hold experience that is necessarily representative.


The more important point perhaps, is that relating to the professional perceptions about false allegations. From my own experience I can vouch that these are made – both by mothers and fathers. I would suggest that entirely and intentionally false allegations are pretty rare, allegations that are false because exaggerated or inaccurately recalled are pretty common, and heightened anxiety about sexual misconduct can in some cases lead to frankly delusional but genuinely made allegations of sexually abusive behaviour. Whether rare or not, it is really important that in each case proper efforts are made to distinguish between accurate allegations and false ones (whatever sort of ‘false’ they may be). Acknowledgment that false allegations are a phenomenon is why we need trials. If we were to accept all allegations at face value we would have no need to test the evidence, and decisions about children would be made simply on the basis of who got in first with their allegations. Because if we abandon the need for scrutiny of allegations, we are not only reversing the presumption of innocence, but also would have to accept all allegations – whether of domestic abuse or of parental alienation.


There is a sense that there may be an implicit suggestion that there is something wrong with this systemic refusal to accept allegations as automatically fact. If that is so I disagree. That is the whole point of the system : to act as arbiter between two versions of the past in order to make sound decisions for the future.


If the complaint is that professionals are too ready to disbelieve allegations of abuse – that requires more thought. For we lawyers, on one level it is never our job to believe or disbelieve – that is the judge’s job. But, depending on who we are representing, it may be our role to think of all the reasons why a witness should be treated as reliable – or not. The corollary of the earlier point that false allegations are rare must be that judges do quite often accept allegations when made and make corresponding findings. But if judges are overly sceptical, that is likely to be manifested through case management – by diverting a case away from a fact finding at all. Which is of course one of the complaints often made, and backed up by such statistics as are available about the rate of fact finding hearings. And of course, if Cafcass officers also have a tendency in the same direction, their guidance to the court will be influential in nudging the court away form a fact finding hearing and away from proper scrutiny of domestic abuse allegations.


The report says :


Mothers and professionals and organisations supporting them perceived that the default position of many of the professionals, including children’s social care, Cafcass/Cymru and the courts in child arrangements proceedings, was to treat allegations with a high level of suspicion. Many of the mothers told the panel that it felt to them that they were being accused of lying. Allegations of child sexual abuse raised particular issues relating to suspicion and perceptions of disbelief.


The uncomfortable truth is that the necessary exploration and testing of allegations of abusive behaviour is difficult for victims. We can make it less difficult, but we can’t take away all the discomfort and we can’t abandon the exploration altogether. We cannot run a justice system on the basis of #webelieve. And nor can we protect children on that basis. We must respectfully, sensitively and carefully test the evidence and make good welfare decisions from a solid factual foundation. One of the reasons that The Transparency Project wrote our domestic abuse guidance note was to try and make the process of assessing allegations less dissonant for victims*, by managing their expectations. My sense is that the message that a victim is entitled to be believed without question can be unhelpful for victims when they find themselves thrust into a process that does not and cannot operate on this basis. We do victims a disservice in not preparing them for the challenges that a forensic process will unfortunately bring. That doesn’t mean we can’t work harder to make it less difficult, but we shouldn’t whitewash it. That is not fair – it is often left to lawyers (sometimes counsel at court, far too late in the process to be helpful) to explain the reality of the process to frightened clients. No wonder then that they report that their lawyer told them not to pursue the allegations. I am as supportive as I can be to clients who I am explaining the process and possible outcomes to, but it is my job to give them realistic expectations so that they can make their own informed decisions about how best to proceed – and I am frequently frustrated that they have not been given an explanation earlier in the process. My explanations are often a real shock – as is my explanation that there is a possibility that their evidence won’t be accepted, which is often interpreted as ‘you don’t believe me’. These are not conversations (about how lawyers, evidence and trials work) that victims of abuse should be having for the first time at court (or even in a conference a few days before a hearing).


*(I could say complainants but I am focusing here on the experience of those complainants who are truly victims)





The submissions of professionals supporting abused women emphasised that staying with an abuser should not be considered as evidence that abuse did not happen, but in reality some professionals also perceived this to be the case. Again, the evidence submitted to the panel suggests that a better understanding of the dynamics of domestic abuse and the decisions victims make to try to protect their children is needed.


It is astonishing – and really worrying – that some professionals don’t understand why people stay in abusive relationships. I thought, mistakenly it appears, that this was domestic abuse 101. Who are the professionals who still don’t understand this? I knew that there were gaps in the understanding of many as to how domestic abuse, and particularly coercive control, works. I knew that there were weaknesses in professional appreciation of things like the escalation in risk after separation. I know that there are gaps in my own knowledge. But the idea that there are professionals in the system who don’t get that its really difficult to leave, and that the fact of their staying doesn’t mean it can’t have been that bad – that’s awful.





Entirely unsurprisingly, problems with police disclosure were a big issue.


The report tells us that,


Professionals in different systems have divergent views as to the obstacles to information sharing. In judicial submissions to the panel it was noted that the length of time it takes to obtain disclosure from the police can add delay to a case and courts do not have the resources to regularly review files and chase outstanding disclosure between hearings. It may well be that this is a resource issue for both the criminal and family justice systems, as well as an issue relating to the themes of pro-contact culture and silo working.


For me this is basically a resource issue – and although the report talks a lot about silo working my observation is that the Family Court works pretty hard to obtain and incorporate police information and material from criminal proceedings – but is often not assisted by the agencies who are asked to provide it (mainly the relevant police force). I don’t think the problem is the Family Court not seeing the relevance of police disclosure. Any lawyer or judge will tell you that more often than not orders for police disclosure are just ignored, deadlines pass without so much as a request for an extension because the police are just too busy and its not their top priority. Some forces do write to the courts, usually telling the Family Court they can’t possibly comply rather than actually requesting an extension. And increasingly during covid, Family Court judges are in my experience very reluctant to get all shirty with the police and order attendance to explain non-compliance with an order. Even before covid-19 I have been trying to run cases about domestic abuse or suspected non-accidental injury where the police were failing to give full or any disclosure for upwards of six months (don’t forget care proceeding are supposed to be entirely concluded within that sort of time frame).


The second problem is that in private law proceedings, nobody has yet devised a system for sorting out police disclosure where the parties are unrepresented (as they very often are). Leaving it to the parties is hopeless – they will argue over splitting the fees, fail to make contact with the disclosure unit to serve the order, won’t have the facilities to securely share disclosure once received…Directing disclosure directly to the court is also problematic because in reality nobody has time to look at the file between hearings. Invariably the case will come back in for the next hearing with a raft of directions (that were based on the assumption that police disclosure would have been received) not complied with, and more often than not with an unshared letter from the police saying ‘oops sorry we need another x months’ or ‘oops we can’t comply because the parties haven’t paid the fee’ on the court file – or if you are lucky with police disclosure in but not sent out to the parties. And of course, as any lawyer will tell you, what comes in purporting to be full disclosure is very often, on a moment’s scrutiny, simply incomplete. Body worn video? Never provided without specific, repeat orders. Notebooks? Likewise. Interview recordings? Often not provided. Logs? Often not provided or incomplete or redacted to hell.


I know there are some moves to try and work with the police so that they stop charging unaffordable fees for disclosure, and I hope those are progressed swiftly – but the other issue that needs to be sorted out is enforcement. I sympathise with police forces who are under immense pressure themselves, but this is an important part of their function within a multi-agency child protection system – and if the police think that compliance with family court orders is optional then we have a big problem.





The authors of the report are rightly critical of form C1A and of the way in which schedules are often limited to a maximum number of ‘incidents’, which makes it very difficult to properly capture coercive and controlling behaviour. They say :


The form contains five boxes requesting a short description of what happened, indicating (approximately) when the behaviour started and how long it continued and space on the form is limited. Whether this fairly captures the lived experiences of victims of abuse was raised as an issue in submissions. This overlaps with concerns mentioned about Scott Schedules … reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse.


I’ve written before about form C1A, and in particular the tendency for it not to make it to CAFCASS before they complete safeguarding interviews (of which more below), and about schedules of allegations. I won’t repeat that here. Here are the links :


C1A :

Limitations on Schedules (amongst other things) :




Another issue that was consistently raised in submissions was the short amount of time that was given to obtaining an account of abuse in the Cafcass/Cymru safeguarding interview. Mothers’ submissions reported only having half an hour to talk to a complete stranger and being expected to give an account of abuse without having any support available in that process. Interviews sometimes took place over the telephone rather than face to face and victims of abuse found that approach was not conducive to giving a full account of their experiences and those of their children.

In one of the focus groups, mothers told of the difficulties they faced in being asked to ‘pull examples out of the air’ and in disclosing their fears and feelings without a familiar and trusted person to support them. They spoke of the approach being insensitive, inadequate and unethical. This perspective was backed up by some of the professionals working in the family justice system. For example, one of the judges at the judicial roundtable said that litigants do not necessarily want to tell Cafcass about the abuse over the phone as it is often serious and distressing experiences that they are required to talk about. Consequently, it comes out at court rather than in the paperwork.


I agree with all of this. Cold calling parents and expecting them to reel off a summary of abuse or safeguarding issues to a stranger in a short phone call is not a great way to get a good sense of what the safeguarding issues may be. Moreover, it creates a scenario where lawyers like me inevitably want to explore the inconsistency in accounts when a certain allegation wasn’t raised in the safeguarding interview.


I note also with alarm the apparently Covid-related practice in some areas of Cafcass not even bothering with a phone call – and simply sending a parent a written questionnaire asking a series of 9 questions that they are expected to fill in and send back. The numerous problems with this approach are, I hope, too obvious to need enumeration. Although not so obvious that they have prevented the practice emerging. I hope it is only temporary. It does not suggest that Cafcass has fully absorbed the criticism of its pre-Covid practice that this has been permitted at all.





The report rightly flags that the expectation of conciliation even where there has been abuse is problematic, particularly given that we know that C1As don’t always reach Cafcass and that safeguarding checks are often outstanding at the FHDRA stage. Personally, I don’t like the blurring of safeguarding interview and conciliation role that I think is risked here.


The report says,


Given that conciliation and mediation are usually considered – and para 9 of PD12J falls to be implemented – at the first hearing before allegations of domestic abuse have been determined, the court should take a precautionary approach unless there is positive evidence that alleged abuse has been acknowledged and addressed and that parties are able to speak and negotiate freely on their own behalf.


I agree. I also note that where conciliation is not appropriate or not attempted at a FHDRA i.e. in most domestic abuse cases, there should be no barrier to legal bloggers or journalists could not attend to observe how the hearing is conducted, including how PD12J is implemented (conciliation hearings are excluded from the list of hearings that journalists and legal bloggers may attend as of right and so far this has prevented the Transparency Project from observing much in the way of FHDRA lists – without justification, in my view).





The report authors say :


However, despite the very clear difference between ‘high conflict’ relationships and domestic abuse, victims and professionals told the panel that they had experiences of domestic abuse being reframed into evidence of a ‘high conflict’ or mutually abusive relationship, for which the solution was considered to be mutual reduction of conflict and encouragement of cooperation rather than protection of the child and adult victim from the other parent’s abuse. As some of the victims feared, and were legally advised, raising any concerns about contact with an abusive partner, was perceived as evidence of hostility to co-parenting.


For my part, having worked with many parents over many years – I’m not sure that it IS always easy to tell which you are dealing with in practice. I wrote last year about the fact that the behaviour of the parties in a litigation context may make generate conflict and mutually controlling behaviour (which might or might not mask an underlying abusive dynamic).


I don’t doubt that abuse is often mis-described as high conflict – and that in doing so real and harmful abuse is minimised. That has been the general approach of governments through the years, who always seem to suggest that conflict is borne of mutual immaturity and animosity after the failure of a relationship, and that parents who can’t agree on arrangements just need their heads banging together. It isn’t always that simple. I’ve seen Cafcass reports which do seem intent on describing the situation as the mutual fault of both parents, and on the emotional harm that the parents inability or refusal to co-parent is causing. Those are frustrating – although they often relate to cases where there is no dispute that there is and should be ongoing contact, albeit that issues continue to arise. There is probably a real question to be explored here about how things can be structured in these sorts of cases to be both workable and physically / emotionally safe once the court has dropped out – I’m not sure there is a consensus on what co-parenting should look like here, or even whether it should be encouraged. I think that is a discussion we need to have. It is one thing for a victim of abuse to be arguing for no contact or highly restricted supervised contact, but in fact many mothers do want their kids to have a relationship with their fathers, but there are limited community structures to make that happen – and extended family are only sometimes able to offer a solution.





This sticks out for me.


The panel received a number of submissions from individual lawyers about their experiences in child contact cases. Some of these submissions indicated that lawyers have advised their clients not to raise domestic abuse because it would ‘anger’ the courts or be ‘counter-productive’. This evidence suggests that some lawyers do encourage their clients towards settlement in such a way that minimises or dismisses domestic abuse. For example one lawyer who made a submission to the panel said: ‘Victims are often persuaded by their lawyers not to mention abuse, being told the courts don’t like it and it will harm their case. If it is raised, victims are often told by the courts that it’s ‘all in the past’ or, in one case I had been ‘too confrontational’, or that it’s not relevant.


WHO has been bothered enough about this issue to submit evidence to the panel telling how they have advised their clients not to raise d.a. because it will ANGER the court?? Who is doing that? Whoever they are they should not be doing this work. If the panel tell us they received this submission I have to accept it was made, but I’m frankly shocked.


Equally, if anyone is giving their clients generic information that courts don’t like the mention of domestic abuse or that the mere mention of it will harm their case they should go and find a new job.


I agree with the lawyer who is quoted where s/he says that victims are often told allegations are ‘in the past’ or that it’s ‘not relevant’. These are known problems that it is no surprise to see featuring in this report. If advocates are still being told off for pressing these issues (whether by being told they are being ‘too confrontational’ or in some other way), then I hope there will be more appeals.


But let me tell you what my practice is, and I think the practice of most other half decent family barristers. In some cases I have advised a client that pursuing domestic abuse findings might be counterproductive – which is not the same as trying to frighten a client by telling them about ‘angry’ (male) judges. Because it’s my job to help them understand the process they will have to go through, and what may unfold if they make this decision or that. My clients are not children. They have to be empowered to make the choices that are right for them. They are entitled to know that they will be cross examined, that my professional assessment is that the evidence they are presenting is really weak, and if I think that they are highly likely to end up with no findings and LESS able to protect their children than if their credibility is preserved (I’m thinking here of the sort of case where a mother makes repeated, highly improbable allegations without cogent supporting evidence, perhaps where she has already been unable to prove earlier allegations – and where if the latest round of allegations are also unproved she is at risk of losing primary care). These are difficult conversations to have, and the last thing I want to do is frighten a client out of their wits. But it is my job to advise them. In my experience, most such clients will pursue those allegations anyway, but at least they do so with their eyes open. Such conversations are neither necessary nor appropriate in less clear cut cases.


What I don’t do is ‘persuade’ my client not to raise an issue that they feel in conscience they need to make to protect their children. I advise them of the risks, I try to reassure them about how we can make the process as manageable as possible, and then I support them in their decision whatever it is. It is fair to say that some clients, particularly those whose confidence in their own decision making has been undermined by years of abuse find this difficult. They may feel pressurised by what they are being told. But we cannot ethically keep them in the dark. It is also fair to say that the way in which a judge conducts him/herself can make a big difference to whether a victim feels able to pursue allegations of abuse. I can think of one case where a very stern s98 warning and clear statement of intention to make a perjury referral if the allegations were found to be fabricated from the judge case managing a proposed fact finding hearing was swiftly followed by the client deciding not to pursue very serious allegations. Great care is needed to ensure that potential victims are able to pursue relevant allegations and to engage with the process.


This passage is also striking. Note the choice of language.


The panel was told that perpetrators were sometimes allowed to raise counter allegations of parental alienation and that these were taken seriously, even when there was little or no supporting evidence. There was a perception that there is a lower threshold for raising allegations of parental alienation than there is for raising domestic abuse or child sexual abuse. As a matter of law, the burden of proof is on the person raising allegations and the standard of proof is the same regardless of the nature of the allegations or who makes them, but submissions indicated that victims did not perceive this to be the case in practice.


Is the implication that perpetrators (alleged perpetrators?) should not be allowed to raise allegations? Any allegation should be taken seriously, whether of abuse or alienation. It is in the nature of both sorts of allegation that there is little supporting evidence. I have been involved in cases where domestic abuse is not taken seriously and in cases where allegations of alienation has not been taken seriously. My firm view is that where these issues are raised the court often cannot fairly decide one without considering the alternative scenario – is the child refusing contact because of their experience of abuse or because of alienation in the context of false allegations of abuse? It can’t be both.


The problem is when the court attempts to deal with allegations of alienation having decided not to hold a fact finding hearing, or where allegations of abuse are floating around but not being actively pursued or grappled with. That places the court and the victim of abuse in a catch 22 situation : any refusal of contact cannot be justified by domestic abuse because it hasn’t been litigated / proved and thus as a matter of law did not happen. The court dealing with allegations of alienation does need to properly scrutinise why it is the allegedly alienating parent is saying there is a problem. If they are saying there is a background of abuse then the court is probably going to have to look at those allegations of abuse even if it initially looked like a fact finding hearing could be avoided.


Here again, look at the language :


Some of the fathers’ submissions stated that allegations of domestic abuse were made up or exaggerated by mothers who were trying to alienate their children from them and frustrate contact. They felt that the courts were not sufficiently robust in investigating allegations of domestic abuse which they said were untrue or exaggerated.


The report uses the terms victim and perpetrator regularly throughout the report, even when discussing the process prior to findings being made. This language assumes that allegations when made are factually accurate – that an alleged perpetrator is in fact a perpetrator, and an alleged victim is a victim. In the above passage father’s submissions are described as subjective accounts ‘father’s stated’ ‘said’ and ‘felt’. In the context of what I’ve said earlier about the essential need for a forensic process that is fair to all, this leaves me uncomfortable.





I noticed also that the pendulum seems to be swinging back again in respect of this old chestnut – the review hearing.


Now the review panel complain that ‘reviews of child arrangements appear uncommon, even in domestic abuse cases. This is despite all the research that indicates that spending time with an abusive parent can result in the continuing abuse of children and/or their non-abusive parent.’


This is not a surprise. It is judicial policy : When CAP was brought in we were told to stop fixing reviews, to discourage parental dependence on court process, to make stepped final orders early doors and shoo them out into the big wide world. We know that has not always worked as well as we’d hoped and has resulted in a revolving door in some cases. There is probably a happy medium here – reviews will be helpful and appropriate in some cases but not all.





I was surprised to read that guardians are appointed in only 7% of cases in 2018-19. Perhaps this is an illustration of the fact that someone at my level of call (18 years) has a caseload at the more complex end – I would say about half of my private law cases involve a guardian. A reminder that I need to be wary to equate what I see with what is more broadly typical.




Multiple submissions referred to the resource constraints that limited the involvement of Cafcass or Cafcass Cymru, in terms of how many children were seen, for how long and the lack of reviews after orders were made. They noted that Cafcass and Cafcass Cymru are usually only involved at the initial safeguarding stage where they do not meet or speak with children. Lawyers also raised concerns that so few children are separately represented. A LIP support service noted that courts would not appoint guardians unless they were specifically asked to do so, and LIPs had no idea they could make such a request.


I have to say that, following the guidance, I often ask for a guardian early on in proceedings and courts are often reluctant to grant my request. It is quite challenging to fit a case within the framework of PD16A until it is frankly too late to be useful. I think that the ability of courts to deal properly and robustly with cases would be significantly enhanced if guardians were more routinely appointed, but resource constraints make that seem highly unlikely. As the report says Cafcass officers are under significant pressure already and often do not see children as often or for as long as would be optimal. They either do not have time or are told they must not make more than a bare minimum of visits (proportionate working is still alive and kicking). In these circumstances is it any wonder that children and parents are reporting that Cafcass are not really getting a handle on their wishes and experiences or that they are not being heard? One interview does not equate to a relationship of trust and an open dialogue.


The report writers were unable to source any data on how often children are giving evidence or meeting judges. I’d say in private law cases (even that subsection that I see) both are relatively infrequent, though in my experience if children ask to meet the judge this is usually made to happen.


The report tells us that:


Cafcass has developed a number of digital apps for working with children and families, including Voice of the Child. This Much! and Backdrop are two other apps available to Cafcass officers for direct work with children. These have been rated as ‘outstanding’ by Ofsted, but none of the apps were mentioned in any of the submissions to the panel.


I’d say there’s a reason they weren’t mentioned : because they aren’t being used. I’ve never heard them referred to in my cases (although I have seen reports with childrens’ worksheets in them – I’m not clear to what extent these apps are simply a digital version of such worksheets).


The passages about childrens’ interviews are concerning but in some respects difficult to make sense of. For example :


Parents, too, gave accounts of children being too frightened to speak, especially in the presence of or in close proximity to the abusive parent, and reported that their children had found the interview process traumatic. The PSU submitted that Cafcass interviews exposed children to the risk of further abuse and invited them to relive previous trauma without specialist support. In addition, some mothers criticised what they perceived to be Cafcass’s generic approach of exploring children’s feelings indirectly through play, even when children were old enough to be asked and to answer direct questions.

This account was far from an isolated instance in the submissions, including submissions from child victims of domestic abuse, and is consistent with research findings that Cafcass officers can make considerable efforts to persuade children to spend time with a parent, or to increase the amount of time they are already spending with them.


The result, however, is that children’s experience of abuse can be ignored, dismissed or minimised.


I don’t quite understand the basis on which the PSU are able to comment on the interview process used by CAFCASS, and they are presumably reporting accounts given to them by resident parents at court. It is almost always the case that children are interviewed away from their parents, often at school or a Cafcass office rather than at home – precisely in order to avoid the sorts of difficulties outlined. There seems to be both criticism of Cafcass for asking direct questions (which might be traumatic) and for not doing so. What does come through clearly though is that a number of children were telling the panel that their experience was of Cafcass putting pressure on them to agree to contact. Whilst it is right that Cafcass officers explore why a child is refusing or expressing reluctance to have contact (because sometimes it is a result of coaching or other influence of the resident parent), it is self evident (or ought to be) that one understandable reason for reluctance is that the child has experienced domestic abuse – in which case their expressed wishes need to be afforded respect.


Whilst the FJYPB contains some impressive young people, some of whom I’ve met, I’m not convinced that it can ever be truly representative of the children whose cases are decided by the Family Court. However, this is important :


…research and the evidence of the Cafcass FJYPB focus group does suggest that children want to be consulted, and that their voices should not be dismissed as simply reflecting the views of their resident parent. A common response in the call for evidence was to highlight the need for skilled assessments that start with an open mind, rather than a fixed hypothesis of what is going on which may lead to entirely inappropriate conclusions. That skilled assessment should assess all the circumstances of an individual case to help the court to determine what is in the best welfare interests of the child, but this obviously has resource implications.


Somehow we need to find more time and space for Cafcass officers to build relationships with children and to form more nuanced and detailed understandings of their views and their experiences.




We are told that organisations including Barnardos, Safelives, Women’s Aid Federation of England and Welsh Women’s Aid noted that the court process, particularly in the preparation of Section 7 reports, failed to draw upon the expertise of their specialist children’s services staff who knew the family.


I think that this criticism may well be justified. I have often seen cases where the refuge or other agencies could probably provide helpful information that is not before the court – BUT there does need to be proper forensic scrutiny of such material, because of the way such services work – there are cases where the therapeutic work carried out by such agencies on the acceptance of allegations as truth can contaminate and develop the evidence in ways that actually make it harder to secure a finding (for example refuge workers asking repeated leading questions for therapeutic or evidential purposes). These forensic issues are a bit of a minefield for both the workers in question and for parents and judges dealing with the resulting records.


This passage highlights the forensic issues well I think :


Others noted that professionals were too ready to see signs of alienation, and so silencing children, rather than assessing further what the child may have witnessed or experienced. This was particularly evident where allegations of sexual abuse had been raised.


In cases where children have disclosed sexual abuse or displayed behaviour that might indicate sexual abuse by their father, there is very little focus on capturing children’s voices in family court proceedings. The primary focus seems to be on the parents, with often intense scrutiny of mother’s motivation for making allegations of sexual abuse. In cases we are aware of: Children have made clear, sometimes graphic, disclosures of sexual abuse to professionals and/or to parents and carers, but despite this, the Judge has ruled that the sexual abuse did not happen. CARA


This seems to be pretty clear evidence of the phenomenon whereby agencies accept and adopt allegations made (here referred to tellingly as ‘disclosures’), and do not accept the findings of a court following a trial. Many agencies work on this model – they understandably accept the self report of their clients and provide services accordingly. But problems arise when they are unwilling to accept the outcome of the forensic process, particularly where their influence on the child or adult continues to promote a refusal to accept the findings the court has made. Of course courts do get things wrong – but a parent who doesn’t accept findings either has to appeal them or accept that the court will go forward on a different basis. It’s really difficult, but that is the system. Although I accept the broad systemic issues raised by those who contributed to the report, I wonder how many of the accounts that were given were from this sort of scenario – still asserting that terrible abuse happened and that the court is ignoring it – even though that court has meticulously considered all the evidence and decided it didn’t occur?


The quote shows an agency apparently not accepting findings post trial – but consider the impact such agencies can have on the forensic value of a child’s account if they treat allegations as disclosures from the off – in cases I have worked on such mindsets have actively led to a court being unable to make findings – how does that protect a child?





Following on from the above:


The most commonly cited reason for why children’s voices go unheard in domestic abuse cases is the ‘pro-contact culture’. Two specific factors were raised repeatedly in submissions: the idea that the court already knew what children needed and allegations of parental alienation. Both meant that children’s wishes and feelings were not elicited or were heard only if they expressed a wish for contact.


Notice the use of the term pro-contact here – the more contentious phrase ‘contact at all costs’ is often used elsewhere but does not appear in this report (except in one citation). For my part I agree there is a pro-contact culture, and I accept that does translate on occasion to contact orders being made that are inappropriate – but I’ve always struggled with the term ‘contact at all costs’, which I don’t think properly captures what is going on. Rights of Women told the panel that


We are informed [by service users] of Cafcass officers making recommendations for unsupervised contact with a perpetrator of abuse that they are unwilling to sit in a room with because they present a risk to the Cafcass officer.


My personal experience of cases where LA social workers or Cafcass officers will only interview a parent double handed are mainly in care cases where contact is supervised. I can’t think of any where that level of professional concern has been apparent and there has been any plan for unsupervised contact – but I have no reason to doubt what the clients of RoW are reporting. It’s difficult to get any sense of how often this sort of thing is happening or what the context in those cases really is. I suppose that in the individual case a careful risk assessment might demonstrate the risk to professionals is high whereas the risk to the other parent or the child is low, but it does seem inconsistent.


Interestingly, fathers’ groups (apart from Mankind) made similar generalisations about what children want and need, and preferred that children were not directly consulted. The reason behind this stance is concern about alienation. See here :


‘Parental alienation’ is based on an idea that children’s wishes and feelings have been influenced by the ‘alienating’ parent, and therefore should be discounted. Multiple submissions argued that the increasing use of the term ‘parental alienation’ could silence children. If children have been alienated, then their wishes and feelings are seen as contaminated. Submissions also observed that an allegation of ‘parental alienation’ meant that the parent who is the subject of the allegation will be treated as an ‘alienator’, rather than as a protective parent with well-founded fears around abduction or violence. This potentially leaves children who have experienced domestic abuse in a very vulnerable position, unless there is some ‘objective’ evidence of the abuse or an independent agency with influence.


A number of submissions raised concerns about professionals jumping to a conclusion that a child refusing to spend time with an abusive parent had been alienated, rather than considering the refusal to be a result of an abusive parent’s behaviour.


In very simplified terms there are two counter-factuals here. Either a child has been subjected to domestic abuse (directly or by exposure) and their wishes may be affected by those experiences. OR a child has not been subjected to the alleged domestic abuse and their expressed wishes and feelings may not represent either their true wishes, or may be the product of a deliberate or inadvertent negative influence from a parent who has made false allegations against the other. In the former those wishes and feelings ought probably to be given proper weight. In the latter, perhaps not so much. But before you can work out which is which you have to determine the facts. There should be no jumping to conclusions before a fact finding hearing. And if necessary a fact finding hearing will need to determine both allegations of abuse and allegations of alienation. It can rarely be both, though the mere presence of ANY abusive behaviour does not justify the child being exposed to a wholly hostile approach towards the other parent, and nor can it automatically mean no contact.


The problem here for me is that in many cases an early decision is taken (or has historically been taken perhaps) that no fact-finding hearing is needed – the allegations are minor, historic, the principle of contact is agreed, everyone wants to avoid delay expense and stress – whatever. And THEN allegations of alienation are made when things grind to a halt. In those circumstances the court may have to reconsider the question of whether findings on the abuse are required, in order to fairly work out how to respond to allegations of alienation. I think that many resident parents (often mothers) find themselves in a catch 22 situation when, having not pursued or been told they can’t pursue findings, they are told they are alienators – and the fatuous assertion is made that the allegations aren’t true because the court works on a binary system. If allegations which have been put to be later become relevant, the court may have to think again in order to avoid unfairness.


But the issues around ‘pro-contact’ culture are not just about the way the court deals with allegations of alienation – the family court is often criticised for being TOO pro-contact generally, not just as a result of minimising domestic abuse and not just as a result of too readily accepting allegations of alienation and push push pushing the reluctant child or resident parent to allow contact that may be risky or harmful. I’m not sure that in all its 200+ pages the report really interrogates whether or not there is a problem with being pro-contact per se.


There is some consideration of whether or not the presumption of parental contact has somehow led to an even greater emphasis on father’s rights (I don’t think it has, the report writers think otherwise) :


Overall, the evidence received by the panel suggests that the presumption is implemented inconsistently and is rarely disapplied. To the extent that the courts’ pro-contact culture operates as a barrier to addressing domestic abuse, it serves to reinforce that culture.


My question here is – what are the lawyers doing in these cases? I’ve never heard it referred to in legal submissions – and if it were I’d immediately flag to the court that it is easily rebutted by the mere making of an allegation and that its only a presumption of some contact – not even necessarily direct. It’s that easy to neutralise such allegations. Perhaps its deployed by litigants in person in cases where there are no lawyers, but even then a brief glance at the presumption as drafted by the judge should have a similar effect.


However, whilst the presumption is touched on as above, the tenor of much public debate in this area, including that which led to this review being launched, implies that the promotion of contact is objectionable in ALL cases involving domestic abuse – even perhaps that it is objectionable in all cases involving allegations of domestic abuse. That debate is not necessarily within the remit of the review group but I think it’s a debate we need to have. I don’t buy into the simplistic ideas such as : abuse that is ‘historic’ is irrelevant, or that non physical abuse is less serious – that tend to lead us towards minimising abuse, but I also know that there is such a vast spectrum of behaviour and experience in the cases that come before the family court, and that each needs its own tailored solution. For example many children who have been exposed to domestically abusive behaviour by one or both parents will have continued or gone on to have regular and valuable contact with the abusive parent for substantial periods – they will have established relationships – and so when the family court comes to evaluate contact it does not do so in a vacuum. Many children who have experienced abuse will reject contact, but others will actively want and need to continue a relationship with their flawed parent – that might not ultimately be safe or possible, but it does need to be considered? For some children a safely managed relationship with their other parent can build understanding of their parent’s failings, which can be important for identity and can help them to self-protect as adolescents and adults where children without any first hand knowledge of a parent can place them selves at risk when seeking out an idealised parent.


So, individualised solutions – proper consideration of the experience of the parent and child who have experienced abuse, the ongoing risks, and the potential advantages – with better awareness of when we may be minimising or muting, and without either a dogma that there should be no contact or that there must be contact? I don’t think that should be controversial but I think perhaps it is.





Concerns about resource constraints were particularly prominent in this regard. Judicial and practitioner respondents were unanimous in agreeing that resource constraints are a major impediment to the effective implementation of PD12J, including the inability to provide judicial continuity, and the large number of LIPs now appearing in private law children cases. Individual respondents also commented on courts having too little time for each case, just processing cases without engaging with the parties, insufficient time being allocated for hearings, judges and magistrates not having read documents filed before hearings, and difficulties of communication between the court and litigants. The evidence also showed how the court’s pro-contact culture, the adversarial process of fact-finding and the silo working of the family courts operate to limit the effectiveness of PD12J. Unless the problem of insufficient resources and the other underlying barriers are addressed, they will continue to have an adverse effect on the implementation of the Practice Direction.


I have nothing to say here but to agree! The family court can be pro-contact by the way, without making contact orders at a time when potentially serious allegations of domestic abuse are outstanding, and PD12J is right about that – the way to minimise the risk of children being harmed as a result of the cessation of contact where allegations later turn out to be false is to get fact finding hearings ordered early and heard promptly. Little hope of that in the current climate I suppose, but as a matter of principle that must be the right approach. You don’t know contact is safe until you know if the allegations are true.


The key theme of submissions was that there are serious shortcomings in the implementation of PD12J. Respondents perceive there to be a substantial gap between the ‘law in the books’ of the Practice Direction and the ‘law in action’ of how it operates on the ground.


I agree this gap is a big problem in some cases – as evidenced in the Sussex study last year even if it’s less visible in my own caseload. My observation of some Magistrates court hearings recently was encouraging, but it’s such a small number that it obviously isn’t necessarily representative.


Individual and some professional respondents identified a lack of awareness or familiarity with PD12J on the part of some Magistrates, Cafcass officers and local authority social workers in particular.


It is alarming to think that there are STILL Magistrates, Cafcass officers and LA Social workers who don’t know about PD12J. Where have they been burying their heads?


However we then get this :


Concerns about the non-application of PD12J appeared to relate less to lack of judicial or professional awareness and more to the respondent’s perception that the court had ignored, refused to listen to or dismissed allegations of domestic abuse they had raised, and refused to order a fact-finding hearing.


Mothers in one of the focus groups said they had been told by their lawyers that their abusers would be granted contact and there was nothing they could do about it.


I think what is important here is that this is about perceptions of parents about what their lawyers are saying or doing on their behalves. Lawyers do have a responsibility to advise their clients about the likely steps the court will take. It IS likely in many cases that notwithstanding domestic abuse some contact will be granted. It would be unfair and irresponsible to suggest to a client that they can expect to resist all contact if that is very unlikely. That does not mean that a lawyer should not then pursue all proper arguments as to why contact shouldn’t be ordered – and no doubt this report will be helpful in articulating and emphasising some of those arguments where the judge or magistrates don’t seem to get it – but a lawyer’s job in private is to advise on likelihood of success. Personally, reflecting over the years on how our advice is interpreted, I try really hard to explain that distinction in role – between what I advise you the risks are in private and the hard work and creativity I put in to achieve the outcome a client seeks to secure once that advice has been given and a decision has been made by the client as to their position. But what I can’t do is not give that advice.


Right. That’s Part 2. When you have had a lie down in a dark room, recovered and replenished your tea and biscuits here is Part 3.

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.