Parliament on d.v. : turns out its not so easy to ask the right questions…

There was an important debate in Parliament today. The government was put on the spot about the scandalous cross examination of victims of rape by the perpetrators of such abuse. It is a shame that the video footage of the house shows so many MPs making a break for the cafe just as it started.

That this issue is being tackled (or is about to be tackled) is a good thing. It is unfortunate that it has taken so long for people to wake up to it. But I have to say that the framing and depth of the debate about this really important issue leaves something to be desired. And it does not give me great confidence that the solution will necessarily resolve the real issue.

There is some real flabbiness of definition here : There is (still) no delineation between complainant and victim, accused and perpetrator, alleged abuser / rapist and actual abuser / rapist. This should not be too hard to grasp. The presumption of innocence should not be a novel concept for our elected representatives to grasp.

Many, maybe most, of the (mainly) men accused of domestic abuse are responsible for some level of bad behaviour. Some will be guilty as charged by their ex. In other cases there is a much exaggerated grain of truth at the heart of a schedule of allegations. And some, we cannot say how many, will be innocent.

But in this really important debate about how we do justice in the family courts, this debate that has had the attention of Parliament as it rightly should – we have forgotten those victims. The victims of false or grossly exaggerated charges made wilfully or through confabulation. Maybe it’s easier to see things from only one perspective, but this isn’t about what’s easier. How can we talk about justice if we can only talk about justice for one party?

And so, the debate trundles on about why we ALLOW men to cross examine their VICTIMS. We shouldn’t allow such cross examination because we have to protect those complainants who ARE victims. But the corollary is : nor should we COMPEL victims of false allegations into having to cobble together their own cross examination, having to face a person determined to see them destroyed, having to do so without the legal aid that their accuser is entitled to. Because some of those “perpetrators” will be just that – victims who are struggling to fight off unjust allegations in order to preserve or establish a relationship with their child. Not all of them, some of them will be nasty, nasty pieces of work who (we will all agree with the benefit of hindsight after a thorough trial) did not deserve representation. But we will at least know that when the trial is over the decision is both fair and robust. And as good an approximation to “truth” as we can achieve.

I think we need to have this conversation – about the men who might not be abusers – before we rush headlong into solving this problem with the sticking plaster of appointing counsel to cross examine but not to conduct a trial or to advise an accused parent.

Not just for the sake of the innocent accused, but also for the sake of the genuine complainant. Because a family court is not like a criminal court. And a family case is not like a criminal case. Yes, it offers a whole arena in and through which a controlling man may continue to attempt to exert control. And yes, our haphazard system may inadvertently facilitate that in some cases. But there are other distinctions too.

Firstly, in the family court the parties are just that – parties. The complalnant is more than just a witness. They are a participant in the entire trial process. And as such the need for protection goes far broader than mere cross examination. The flip side is that the need for an accused to be protected against accusations that he has attempted to manipulate the trial process to exert continuing control over his victim runs throughout the litigation / trial process. An accused litigant in person can be very vulnerable indeed.

And secondly, that the parties do (usually) have a child together. This means that, however uncomfortable it may be, in all but the most exceptional of cases there will have to remain some connection between the parties for a long time – even if it is entirely indirectly through third parties.

And thirdly, because the family court can make very draconian orders – it can suspend or even terminate a relationship between child and parent – based only on evidence to the civil standard of proof. In brutal terms it is far easier for a person accused in the family court of some awful crime to be found to have perpetrated that act than in a criminal court. Again, the accused is vulnerable. And the consequences are different, but are potentially every bit as grave and lifelong as in the criminal court.

Finally, it is worth reflecting on the illuminating heading of the debate in Hansard : Domestic Violence Victims: Cross-Examination. It is broadly drawn. It is not just about rape victims any more. When ministers are reconsidering this issue and formulating proposals they need to take some real care to distinguish between the position in rape cases (specifically provided for in criminal courts) and the position in the spectrum of other cases of domestic abuse (again there are provisions in criminal courts but they only apply where the court considers that the quality of witness evidence is likely to be diminished by direct questioning). Any proposals need to distinguish between cross examination and broader participation in the trial process. They need to distinguish between : cross examination about alleged abuse (to prove or disprove it), cross examination about other matters in a case which involves (or has involved) allegations of abuse, and cross examination in a case which is nothing to do with domestic abuse but where, incidentally there is a background of domestic abuse between the parties or between a party and a witness (for example financial or civil matters between ex partners). The answers called for in each scenario might be rather different. I’m not sure the debate so far has teased any of that out.

It is really encouraging to see Parliament taking an interest in these important issues. But it is profoundly depressing to see the massive blind spot that our Parliamentarians seem to have to one whole side of the discussion – and one whole half of their constituents: the accused, who we insist on calling perpetrators as if we have entirely forgotten about the purpose of the trial in the first place – to establish guilt. Not once in the debate did anyone use the proper terms complainant and accused. Not once did anyone avert to the possibility that an allegation might not be true. It is this one eyed perspective on family courts that got us into this post-LASPO mess in the first place.

And it is profoundly depressing to see it now enter into the Hansard records as fact that “a quarter of domestic violence victims face cross-examination by their abusers.” And not just because of the use of those terms victim and abusers :

Women’s Aid have done valuable work on this topic, and it is largely thanks to their massive campaign that people seem to be sitting up and listening. They deserve credit for it, although I do not always agree with their methods or adopt unquestioningly all of their bold assertions. But the 25% statistic used by Oliver Heald does not come from court statistics, not from any proper research and it is unverified. It comes from a Women’s Aid survey of their own service users, which they have yet to answer questions about (see my previous posts about that here) [update 11 Jan 17 – they have now answered, see here]. The danger in such concerning but basically anecdotal and subjective evidence is that it may not be reliable or may become distorted by the process of stripping out important context. A striking example of this is the account given by an MP in the course of debate today that a “convicted murderer…sued for custody of their child from the prison where he was serving a life sentence for murder”. It seems highly unlikely that a person serving a life sentence for murder would be pursuing an application for a child to live with him. Instead it is far more likely that he was asking questions in the context of pursuing contact or was responding to an application made by extended family wishing to care for the child in light of the mother’s murder. Although it will have undoubtedly been very difficult for the witness, whose sister had been murdered by her questioner, it is of course not an example of a perpetrator cross examining his victim at all. We don’t know the details, and it must be right to expect the court dealing with such an application to control the court process very carefully – but it is difficult to draw conclusions from such snippets – for me this is a powerful illustration of the danger of anecdote.

That the minister for courts and justice Oliver Heald is happy to simply adopt the Women’s Aid guesstimate as fact is an indication of the real depth of consideration here. The minister needs to ensure that the government’s response is to the problem not to the publicity campaign. It all makes me concerned that we will be presented with a quick fix that in fact fixes very little. Let us suppose that a quarter of all victims of domestic abuse are cross examined by their perp (this would be a significant number as it is not limited to rape or serious physical abuse – and thus if we want to ban ALL of it a significant fix would be required). It would be unsurprising if a quarter of all those accused of domestic abuse would also express concern at their vulnerability in having to try and defend themselves against false allegations without help and against a state funded lawyer if asked to complete a survey on the topic. Who is to say which is the greater injustice when we have no proper research on either proposition,  and when our system depends upon us holding in mind the possibility of two alternate versions of reality until after the evidence has been heard?

In saying all of this I don’t minimise the legitimate concerns raised by campaigners and MPs about what is going wrong. But it isn’t the whole story and it isn’t the whole problem. And a mere BAN on cross examination by men who – in the main – aren’t terribly keen on enforced DIY cross examination in the first place is not the whole fix either.

43 thoughts on “Parliament on d.v. : turns out its not so easy to ask the right questions…

  1. If the accused do not qualify for legal aid and it would be traumatic for their alleged victims to be cross examined by the alleged perpetrators then surely the State could fund a barrister simply for cross examination purposes to ensure as far as possible equality for both parties before the court.

    • I don’t know if it is quite that simple, although it is certainly what is being proposed in some quarters. It would certainly deal with the worst part of the problem, but views differ as to whether it would remove the potential injustice for a wrongly accused “abuser” (barristers who conduct such cross examinations in criminal cases disagreed on another comment thread on this blog recently about this) – or indeed whether it would completely protect vulnerable victims. Much depends on whether we are talking about ALL xx of ALL alleged abusers of ANY type regardless of relevance, recency, impact on victim etc OR whether we are talking about xx only where allegation is of a specified (very serious) kind e.g. rape. The latter would not be terribly expensive I imagine, the former is actually quite a massive undertaking. And in my experience not all victims want or need this in all cases. But all would benefit from proper representation and advice being given throughout to the “abusing” party. It might be rather better to have a more nuanced approach that looks at enabling fair trial for all, rather than simply BANNING for some.

      • You mean ALLEGED victims. I am unclear on your position here. Are you saying that anyone accused of a crime should not be able to cross examine their alleged victims or only that mean accused of rape or domestic abuse should not be able to question their alleged victims. That men accused of domestic violence are to be treated differently to every other accused person. I note that you just keep turning a deaf ear to anyone who tells you how Women’s Aid promote false allegations. I see them every day. In the last eight years I have never seen a single ALLEGED victim with a ticket from Women’s Aid saying that they are a genuine victim ever prove any abuse at all by a man. I have the greatest sympathy for women who have been genuinely abused and I know many who have. I just don’t see why we have to throw natural justice out of the window despite it’s imperfections. Non one is clamouring to prevent women accused of domestic violence from examining their victims. Don’t men have feelings too? Legal Aid was devised and intended to publically fund those who are accused of crimes to present a skilled case where they do not have the means to do so. However in the case of domestic violence it is the accuser that is funded and that can only lead to injustice. It is repugnant to natural justice and those who can’t see it not only have a problem but they are part of that problem. If men accused of such wrongs were also given Legal Aid then they wouldn’t have to examine anyone. I have seen many men whose lives have been ruined by this and driven to kill themselves by false allegations

        • apologies for delayed publication / reply – not entirely sure why you attribute many of the opinions in your comment to me. They don’t reflect my position, but I don’t propose to engage in argument about it.

  2. Thank you for trying to redress the imbalance, Lucy, in this important contribution to this issue – I nearly wrote “debate”, but there is none.
    I am bound to say, however, that I don’t think you go far enough. It has long been established by an overwhelming preponderance of evidence that most domestic violence is reciprocal, and that where it is not, it is less likely to be initiated by men, yet there is no recognition in your post that women can also be perpetrators, and that men can also face the trauma of being cross examined by an abuser: it is not all one way.
    You also ignore the elephant in the room, that these distorted debates and the entire discussion of this issue and related issues by parliament is driven by a feminist ideology which is now completely dominant. It is surely time to recognise that and begin to counter it. Women’s Aid and other feminist groups have been enormously successful, bolstered by public funds, and have now effectively become the only voice in this debate.
    Some time ago I complained to my local MP, Alan Mak, that in the Commons debate on the response of the family courts to domestic violence, the ONLY evidence cited by any of the contributing MPs was the report by Women’s Aid which you had already exposed as misleading – I referred him to your blog. I observed that the Commons had effectively joined WA in accusing the family judiciary of placing an obsession with contact ahead of children’s welfare and had knowingly and callously sent children to their deaths in service to this dogma. It seemed to me a vile and entirely unevidenced allegation which a supine judiciary seems to have accepted without complaint.
    Some weeks later, I received a letter from Oliver Heald in which he assured me that the MoJ were considering many sources of evidence in addition to that offered by WA. Frankly, I do not believe him, and see no reason to accept this: WA continues to be the sole source of the evidence MPs rely on, based on anecdotal (at best) and fabricated (at worst) data.
    Organisations like WA which are driven by an extreme feminist ideology have long hidden behind a human shield of ordinary women (and some men) who identify as feminists because they believe in equality or the eradication of a perceived gender pay gap. But WA have never been about equality. They want to promote a view – and have been very successful in achieving it – in which any man who seeks to pursue an application in the family courts is seen as continuing the abuse he perpetrated during the relationship. They want a family court in which no father has any right to make an application and in which no man is able to defend himself against an allegation.
    This is not merely very dangerous to men, it is extremely hazardous to children, who may be denied a relationship with a loving parent, or condemned to a life – quite possibly not very long – with an abusive one.
    This agenda needs to be resisted, and far more robustly than at present.

    • I profoundly disagree with your attempt to lay this at the door of feminism. That’s just lazy. I think that your criticisms of WA are to some extent justified, although I don’t know if they in fact operate according to the sort of agenda you ascribe to them of “extreme feminist ideology” (whatever that is), or whether they truly subscribe to the view that any man pursuing an application is seen as abusive. At any rate I think one has to accept them for what they are : a campaigning body. We can’t expect them to be what they are not, and should work to ensure that those relying on them recognise their campaigning ethos and draw on multiple sources to ensure a balanced picture. Like you, I’ve not seen much evidence of the government considering sources other than Women’s Aid, and whilst their perspective is valid it is not the only one.

      • Well, at least we agree on something! If I am lazy – I’m not sure I am – it doesn’t matter; if parliament is lazy, relying on a single source of anecdotal evidence, it will do immense harm.

      • If you want some evidence and references, this is a good place to start:

        Please note that the government Crime Survey no longer measures domestic violence, but instead measures “domestic abuse” which is a highly subjective quantity, includes actions that are not illegal, and appears to have been designed by feminists specifically to increase the ratio of female to male victims. A more honest measurement of financial or emotional abuse could produce very different results.

    • Indeed, Nick, women can be abusers, and their traumatised husbands are less likely to report physical or mental abuse than are women. In the case where the woman has a severe personality disorder, (which is notoriously difficult to recognise or diagnose) she is likely to accuse her husband of doing what she herself is perpetrating – and she might well be very good at playing the victim and very convincing with her allegations. Any legislation needs to encompass this possibility.

    • Hi Nick “It has long been established by an overwhelming preponderance of evidence that most domestic violence is reciprocal” Can you cite this evidence please?

    • I profoundly agree with your comments

  3. Thank you for continuing to point out the anomalies and difficulties of what is being brought before parliament on the issue of “victims” and “perpetrators”. I believe that women accusing their husbands of DV is a well-trodden path to retaining custody of the children, and the financial support that goes with them. The wife who gets her husband arrested on a false allegation of violence will be able to use that arrest in all future family court action, with clever wording suggesting that he is violent even if the police made no charge and the husband vehemently denies the allegation. So your drawing attention to the fact that such allegations may not be proven or even true is timely and essential for true justice. I hope the eventual wording of the new law will reflect this.

  4. This is a brilliant piece.

    Can you please write to Oliver Heald with your concerns.

  5. Hi Lucy

    I’m pleased to see you challenge the assumptions of guilt/innocence, but I was disappointed that you repeat the rhetoric of male perpetrator/female victim so readily when we know the split of male/female perpetrator is 60:40.

    When it comes to child abuse the NSPCC found that mothers were as likely, if not more likely to abuse children than fathers. Why is the emphasis on women as victims, not children when they’re more likely to be perpetrators?

    We’re also talking about allegations which are not crimes because they can’t be proven to the criminal standard, so these are not criminal offences.

    There’s no attempt to address the pervasive problem of false allegations and what happens to the parents (mostly women) who lie to the courts to prevent children having a relationship with their father. The consequence is a delay to the case, the father not seeing the child for longer and absolutely no punishment for the mother.

    The destruction of a child’s relationship with a loving parent who has done nothing more than be the victim of the other parent’s spite is much more damaging than what may have happened in the past and should be dealt with far more severely.

    When it comes to rape, again rape is a crime, it should be reported to the police and properly investigated. If no evidence is found, the same allegations should not be regurgitated and picked over again as significant unless there’s a risk of sexual abuse of the child. Why on earth would the Family Court look at allegations of rape against the mother which don’t affect the child?

    I’ve seen allegations of historic intimate rape suddenly appear years after the alleged offences when there’s no possibility of producing any evidence with the express intention of delaying contact.

    These injustices should be the focus of attention because the victims are the children the Family Court are supposed to be putting first, not the mother.

    Domestic Violence is a crime. If a crime has been committed, go to the police with your evidence. If you can’t prove it, there’s no crime.

    • I’m puzzled why you accuse me of repeating rhetoric about male perpetrator/ female victim. I’ve gone back over my post and I reference male violence twice – firstly when I talk about “(mainly) men accused of domestic abuse” (I stand by that, I’m not talking about the rates of actual domestic violence but about my observations of the rates of allegations of domestic violence in family courts which I think are mainly of female on male violence – I don’t know if there are stats on this, although I believe the majority of non-mol applicants are and have always been female). Secondly, I refer to a particular example given in the debate I am discussing of a father murdering a mother. Otherwise my blog post is gender neutral as to complainants and victims.
      If there is any emphasis in the debate on women as exclusive victims of violence (I’m not actually sure without re-reading it that there is) – that would be because the whole thing is being driven by a campaign by a women’s survivors group. The voice of male survivors specifically or of male victims of false allegations is not represented in the debate, which was my main point.
      I’m not sure if the rest of your post is intended to be a criticism directed at me or a general riff on your grievances. Selecting those points I think I can make useful responses to :
      “I’ve seen allegations of historic intimate rape suddenly appear years after the alleged offences when there’s no possibility of producing any evidence with the express intention of delaying contact.” Late allegations may come because they are false and concocted to meet the needs of the moment (to deny contact), but they can also come late because of trauma and the need for a victim to be in a place to raise them (or indeed to recognise as abuse that which most of us would immediately say is abuse – you’d be surprised how many women think non-consensual sex in a relationship is not rape or is somehow their fault). The difficulty is distinguishing between the two scenarios.
      you say “Domestic Violence is a crime. If a crime has been committed, go to the police with your evidence. If you can’t prove it, there’s no crime.” That may be so, but your comment doesn’t fully represent the state of the law. Our civil child protection law allows someone to be proved to have committed an act which is criminal even though there has been no prosecution. The law allows (and demands) that findings on the civil standard be made where appropriate and that family courts act on the basis of such findings even in the absence of a conviction. If we as a society don’t like that we need to get Parliament to change the law.

      • You didn’t address my point about the failure to penalise those (mainly women) who make false allegations in the Family Courts. These make up an estimated 70% of allegations raised in the family courts.

        Then there are the Domestic Violence intervention courses, DVPP, BBR etc. I assume you’ve had cases where one party has been ordered to go on one of these, are you aware of any women being sent on these or similar courses by the courts?

        • Where do you get your estimate of 70% false allegations? The family court is not about penalising for the sake of it. It is about providing for childrens best interests. That may in some cases require some sanction where a parent is behaving in a way so as to wrongly shut out another, but I think penalties are really difficult issue in family courts.

          As for DVPP etc – I think there are very few courses available for female perpetrators. I can’t think of one in my caseload where a woman has been ordered to attend, but that doesn’t mean it doesn’t happen. Frankly, it is very rare fro a court in my experience to order DVPP – usually when someone goes they go because a criminal penalty has required it (or because a conviction has enabled them to access it).

    • William Millard

      As a male victim of DV it is sickening to see the almost total discrimination and bias against men. The agenda is wholly unbalanced and ignores what must surely be obvious to anybody with half a brain. Yet another Family Justice whitewash.

  6. Thank you – what a thoughtful and valuable contribution to this important debate.

    Families Need Fathers provide support services mostly to non-resident parents seeking to maintain or re-start relationships with their children after separation. Our service users, just like those of Women’s Aid, have their own experience and perspective on the issues of domestic violence. Many report to us being victims themselves.

    We too carried out a survey of our service users and 57% indicated that their ex-partners received legal aid through false/unfounded allegations of domestic abuse. Many apply for Non-Molestation orders as a passport to legal aid, with no adverse consequences if the court subsequently finds such allegations to have been malicious or unfounded. Even if there is a significant over-statement in our figures, it suggests that this has become a very big issue with enormous scope for miscarriages of justice as the system is used as another weapon for ex-partners to hurt each other. Proceedings may last 6 months – or even years, amounting to the vast majority of childhood. Enormous damage can be done during that time to a child’s emotional/mental wellbeing as well as the parents’ health and finances.

    Of course, government should insist on proper research and information being gathered. Neither the Ministry of Justice nor CAFCASS offer any meaningful information on the long-term outcomes for families of their interventions, nor do they collect information on allegations of abuse or findings where they are made. Our statistics and those of Women’s Aid highlight difficulties for mums and dads – both need to be taken seriously, but the dearth of good quality research and basic statistical information is in itself not just scandalous, but dangerous. Far more transparency is needed.

    Your post should be obligatory reading to all those parliamentarians who want to find solutions to what are real and difficult problems. Seeking simply to grab headlines is likely to lead to bad laws, increased injustice and damage to children and parents alike.

  7. It is wretchedly awful that the Courts do not keep statistics on the things that would actually provide some rigour to this debate


    1. What proportion of private family law cases about children involve one party (or both) making allegations against the other which the Court have to determine?

    (I think it is relatively low – my gut feeling is less than 20% and most cases are about welfare and quantum and logistics – how many days, what time collection, how are holidays to be split, rather than about abuse and risk. But it is shabby that we simply don’t actually have official stats on this)

    2. Of those cases, what proportion of cases are allegations brought by mothers, what proportion by fathers?

    2 a) Of those cases, what proportion of cases involved cross-examination directly of the complainant by the person being alleged to have committed abusive acts?

    3. Of the cases set out in (1) above, what proportion of cases result in the significant allegations being found to be proven?

    (I think you have to say significant, because my experience is that there’s generally a schedule of 15-20 findings and it is very rare for all of them to be made out. You want to know if the really serious allegations are proven)

    4. Of the cases that were not found to be proven, what proportion of those were found by a Judge to be false or malicious allegations?

    (And one might want 3 and 4 broken down by gender as well)

    Of course it costs money to gather and keep statistics, but I’d far prefer official stats on this to self-selected responses to questionnaires or anecdote or people’s gut-feeling (even my own).

    I agree with you entirely – it is wholly wrong to conduct this debate only looking at one side of it, and with campaigning claims being treated as ‘facts’

    (Even a random selection of a few Courts, and those stats provided on their actual records and actual cases and actual decisions would be a safer basis to extrapolate general trends than this 25% figure which simply cannot be considered to be accurate. It tells one nothing more than 25% of people who chose to respond to a questionnaire said that this had been their experience)

    • Those are exactly the questions we need answered.

      I think that there may be some statistics from CAFCASS about what proportion of cases they think involve DV (by which they must mean allegations) – I have in my head something like 40% (of private law cases?). I’ve had a quick look on their site and can’t find it but am sure I’ve seen that somewhere. It is of course nowhere near an answer to the bigger question, but it goes some way to answering your number 1 – if I am right and not entirely inventing this figure!!

  8. Thank you for your balanced post which is spot on in terms of questioning what I see as the rush to legislate in this emotive space. Oliver Heald happens to be my local MP, I wrote to him a few days ago before seeing this post (which I came across through F4J) and await a reply.

    Something you touched on in your post which I think significant is that family court judges already have control of their courts. They already have the power to allow or disallow cross-examination. They already have the power to insist that all cross-examination questions are put by each party to the judge, who can relay the question in an appropriate manner. The campaign for change seems to be based on anecdotal evidence provided by WA, but I would suggest that it is in fact highlighting particular cases which show judicial failings by particular judges (or incorrectly reported anecdotes), rather than systematic issues that require a change in the law to remove a fundamental tenant and protection of our justice system.

    • Interesting, usually the only time F4J mention me is to call me unrepeatable names…

    • One difficulty with anecdotal evidence is that it may be very old. Many fathers’ campaigners are relying on cases from 10, 15, 20 years ago, and their rhetoric hasn’t changed in that time. Some seem unaware of child arrangements orders, for example. I’m sure the same is true of campaign groups like WA.

  9. Thanks for this. Although it pains me not to see my daughter it is nothing compared to the pain and suffering I injured at the hands of the family courts, caffcass and social services, not to metion the solicitors, which resulted in zero contact anyway. I am so thankful that I’m past all that now and am more than happy to leave it in God’s hands. Having read your post and this thread I can see in 7 years (probably more) nothing has changed for the better and all things considered I honestly don’t see how they ever will. My thoughts and prayers are with all the children who’s lives will be and have been affected by this one sided farce. And also with all the Judges, Solicitors and people involved who through there actions and inactions will in there own way have to come to terms with the mockery they have made of the justice system they themselves swore to serve. I will also pray especially for all the parent’s be it male or female (no gender bias) who have lied and made false allegations against the other parent with no consideration of the detrimental effect it would have on the very child they themselves claim to love and to cherish, for these especially and everyone involved I pray that your souls be saved from the hell you may otherwise have to suffer.

  10. So where is the evidence that the Family Court is getting it wrong at the moment? Has anyone appeal a decision based on their being cross examined by their alleged abuser? Has the journalist who brought this to light in the Guardian actually attended some of these hearings, or was the article written on the reports of Women’s Aid who didn’t identify the sources? Has anyone paid for a transcript of any of these cross examinations where one woman was supposedly asked when she “last had sex” to determine if the judge allowed such a line of questioning?

    These reports could easily have been verified with hard evidence of the actual cases complained about, and this could have been done within the current rules, to substantiate the claims of Women’s Aid. Instead we have 3rd hand reports and mis-information coming from an organisation whose agenda is self serving at best.

    • There have certainly been appeals on the problem of cross examination of complainants – but not because the judge had permitted it, but on whether or not the state should pay for representation for someone else to do it.
      I don’t know about the journalist attending court, but I believe she has spoken to some of the women. It’s not clear whether all the women she writes about are respondents to the survey of if she has found them separately.

      I’m not sure they could have been verified within current rules in the way you suggest, but they certainly haven’t been verified.

  11. Article 6 is already compromised by the grant of legal aid to one party but not the other. To refuse to allow him to test the evidence against him (evidence which could cost him his children, his home, his all) is to tie the other hand behind his back too. The party making those allegations can cross-examine him, at the public expense, but he can’t cross-examine at all?

    Where will that end? If Women’s Aid had their way he would not be allowed in court at all if his presence caused upset. Or he would be required to stay after she left (false imprisonment, anybody? and where is he to remain?). Oh, and she must be found somewhere private to wait for the hearing. next time you get to court early and are able to discuss your case in confidence with your client in the only consultation room in the building, and the usher turfs you out for a litigant with a higher “priority”, well, you read it here first.

    And why only family cases? What about inheritance cases which often involve relations?

    You either give the man (usually) legal aid or you allow him to cross-examine. In person. There is no middle way.

    • My concern is that in solving one problem Parliament may cause another. Whatever solution is found to the cross examination of vulnerable witnesses issue, it can’t be one that curtails the article 6 rights of either party – there has to be a proper mechanism of challenge to the evidence in such cases. It would be unlawful for any scheme to do otherwise.

  12. Feminists are always on about equality.Well in that case anonymity should be given to both parties or none.Similarly if cross examination of victims is painful then it must also be painful for those wrongly accused .Maybe the judge should be inquisitorial (french style!) and cross examine both alleged victims and perpetrators…………..

  13. What are your views on the assertion in the Guardian that fathers accused of domestic abuse will have their access to child contact eroded even further?

    • Laura, In short it’s rubbish. Judges can’t change the law and haven’t done so. All that has happened is a judge has recommended some rule / guidance changes, which will now take some months to implement. If implemented they won’t change the law, they change the wording of a specific phrase which has irked some. The presumption of contact will remain the same – as always it it disapplied where there is a risk to the child. The wording change is simply to clarify the existing law. No erosion of fathers (or mothers’) rights. Do plan a blog post on this but can’t do it now due to illness / workload.

  14. […] practitioner and ace blogger Lucy Reed then wrote a helpful explainer on her Pink Tape blog (later picked up by i news) , partly to dispel the myth that the problem was […]

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