Category Archives: equality

What is the difference between a ‘QLR’ and a QLR?

It’s Friday. I’ve been staring at a screen all day and my eyes have gone funny from scrolling through spreadsheets. I need a change of scene before resuming the trawl. Or failing that a change of topic. Aha. I’ll tackle that QLR judgment.

I tell you now, I am perplexed by this one. I’ve been mulling it over in the back of my brain all week and its got me awl of a muddle.

In the back of my brain I have been thinking up amusing alternative meanings for ‘QLR’….imaginative unabbreviations if you will.

  • Quite Limited Role.
  • Question Lots. Really?
  • Questions Lack Relevance?
  • Questioning Like Rumpole
  • Questioning Lite. Representation?
  • Quite Literally Ridiculous…
  • QLR Law: Resources?
  • Quash Litigants’ Rights
  • Quell Litigant Rebellion
  • Quite Like Representation
  • Quixotic, Lost, Rare…
  • Questions Largely Rhetorical
  • Quizzical Looks Required
  • Quick, Let’s Run….
  • QLR Lost? Right….

Enough nonsense. To the case! Which is: K v P (Criminal Solicitor as Court-Appointed QLR) [2025] EWFC 321. (You can tell me later if my unabbreviations are apt/funny/tedious).

As the title of the case suggests, it involved a solicitor who had been appointed by the court as a QLR for a father accused of domestic abuse, and who was ALSO appointed by that father as his representative in criminal proceedings about domestic abuse (apparently involving the same parties but not necessarily relating to the same specific matters running in the Family Court). We aren’t told how it came to pass that a QLR was appointed or which appointment came first, but in my experience courts usually operate a list, and work through the list in order until a QLR says ‘yes’ they are available.

The mother, who complained of domestic abuse, said that this was inappropriate and unfair. It gave rise to a conflict of interest and would diminish her ability to give her best evidence. Part of her complaint (quite a big part on my reading) was that this solicitor would have unfair access to the family court papers and knowledge of the criminal proceedings.

If I mentally put myself in her shoes I can understand where she was coming from. I can understand why the argument was advanced.

But.

Just because somebody feels that something is unfair doesn’t necessarily mean it is. And fairness is a two way street. And here the father didn’t agree it was unfair. And so it came to pass that the matter was passed to the President of the Family Division, to decide what the right answer was in this particualr case, and indeed in cases like this. Cases involving QLRs are, frankly, new and uncomfortable territory for all of us (lawyers and judges alike), so anything that helps us navigate them is welcome.

The President wasn’t dealing with this as an appeal – he was sitting in the Family Court as a first instance judge. I imagine that this is because the original judge thought it was a good idea to let the ‘big cheese’ work this out, for our general edification. This is, I think, the second time the President has been invited to sit in the Family Court to sort out a QLR related conundrum (the first being the case which dealt with what to do if you can’t find a QLR (at a time when QLRs were really on the red list). TLDR answer: judge may just have to crack on and ask the questions herself, even though the entire reason Parliament legislated for QLRs was because this was unsatisfactory). Perhaps as a mark of the trickiness of topic, the big Cheese permitted the intervention (at whose suggestion I’m not sure) of something called the AQLR (Association of QLRs) and the rather better known ALC (Association of Lawyers for Children), and Right to Equality. The submissions of the former two organisations are summarised briefly, and appear to form the backbone of the decision.

Having heard argument, the President concluded that:

  • The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party. each case will fall to be evaluated on its own facts,
  • Where a QLR is also a criminal representative the court will give careful consideration to the question of whether the court appointment should be discharged. It will consider whether the dual role:
    • compromises the appearance or actuality of QLR independence;
    • undermines the protective purpose of the QLR scheme;
    • creates a real or perceived conflict of interest; or
    • introduces a material imbalance of disclosure or cross-jurisdictional knowledge.
    • In any given case other factors may also be in play.
  • It is difficult to contemplate many cases where it will be proportionate to continue a lawyer’s appointment by the court as QLR where that lawyer also acts directly for the prohibited party in related criminal proceedings.
  • For the court to continue such an appointment will normally cut right across the aim of the provisions in Part 4B and PD 3AB, which is to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress.

The upshot of the decision in this case was that the QLR was discharged, but as you will see from above that will not inevitably be so in other cases of dual instruction.

The President said that there should not be a blanket prohibition upon any court-appointed QLR who is also instructed as a solicitor or barrister for the same party in parallel criminal proceedings. Bearing in mind that it is clearly permissible for a party to instruct their criminal defence lawyer to be either their directly appointed QLR or lawyer in the Family court, the court thought that this would be would be disproportionate and unnecessary.

So here, unless the father appoints his own lawyer in the usual way the court will now appoint a different QLR. In a curious postscript, the President records that ‘At the conclusion of the oral hearing, following the decision to discharge his appointment as QLR, Mr Fidler informed the court that, depending on the father’s instructions, he may henceforward go on record as the father’s solicitor in the ongoing Family proceedings’. (Didn’t see that one coming? Me either).

Intermission….That really is all you need if you are just looking for a summary of the case. If you want my ruminations, read on…

Mr Fidler, by the way, is the QLR. I should have introduced him. The QLR to whom the court specifically said no criticism attached (nothing that I say in this post should be interpreted as criticism of Mr Fidler, by the way. It isn’t). But who is recorded as ‘assist[ing] the court by making submissions on behalf of the father.’ In a case where the court has confirmed that ‘The essence of a court-appointed QLR is that they will be independent of the prohibited party, and not acting more broadly ‘for’ that party.’ Confused? To be sure, it is possible to act pro bono as a full fat legal representative as an adjunct to being a QLR, but in a hearing about roles, boundaries and conflict this is…notable.

It’s not the only confusing thing. The use of ‘QLR’ (as an acronym for qualified legal representative) is a term which, with reference to the QLR provisions (lazy shorthand, all the provisions are in the judgment if you care) has a specific statutory meaning. However ‘qualified legal representative’ also means, as a matter of normal use of words, any qualified legal representative – a solicitor or barrister or ILEX, whether appointed by court or party (or nobody). So really, we ought to distinguish between a qlr (no capitals, just a lawyer), and a QLR (capitals, a specific lawyer with a specific and limited statutory role). Every QLR must also be a qlr, but not every qlr is a QLR. Got it?

And it is not the role of a QLR qlr to make representations on behalf of a party. Was Mr Fidler singing for his own supper, was he acting on behalf of the court, or was he acting as advocate ‘on behalf of’ the father, who had not appointed him? Perhaps he did this pro bono and independently of his (limited) instruction as QLR, since I don’t think he can act in this capacity under his instruction by the court, but it is an ethically complex position, isn’t it? It is a tension inherent in the scheme, and which causes real world problems of not insignificant frequency, and so although I’m sure it was done with the best of intentions, it is somewhat confusing to see those boundaries blurred in a decision which also emphasises the importance of not blurring those boundaries.

Anyway, whilst the court was happy for him to do whatever he was doing at the hearing before the President, pursuant to whatever duty he felt he was discharging, ultimately the court wasn’t happy for him to carry on being an actual QLR in the strict sense of the role as per the MFPA 1984 and the statutory guidance. The decision isn’t based upon a conflict of interests as I read it, though that was argued. It was primarily based upon the complainant’s perception of unfair advantage were the qlr to continue as a QLR, and the potential adverse impact upon her evidence.

But here is what is perplexing me the mostest.

The court was evidently content (rightly) to contemplate Mr Fidler acting for the father in the family proceedings if the father instructed him ‘properly’ as a qlr (party appointed) rather than a QLR (court appointed) – as reaffirmed in the postscript.

If that happens (as it sounds like it might) the father’s legal representative will have exactly the same rights to access and use information across jurisdiction as he would as a qlr (criminal) / QLR (family) hybrid. See FPR 12.73(1) :

1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated

(a) where the communication is to–

(ii) the legal representative of a party;

(iii) a professional legal adviser;

Mr Fidler was entitled to see all the Family Court material whether or not appointed as a qlr (family) or a QLR (family) or neither, because he was appointed by the father as a legal representative / professional legal adviser. He still is.

Mr Fidler was entitled to see all the Criminal material because he was appointed by the father as a legal representative / professional legal adviser. He still is.

The position will be the same for ANY legal representative in the same position.

The complainant / mother was a witness in the criminal proceedings and not a party. Her rights to knowledge of the criminal proceedings are not affected at all by the father/ defendant’s choice of lawyer or the appointment of a QLR.

There is no inequality arising from the fact that the QLR is also the criminal lawyer.

It is true that if the criminal defence is legally aided there will be no funding to read the family papers unless and until the crown make a successful application for disclosure into those proceedings pursuant to their duties of disclosure (assuming that any of the material was relevant). And it is true that the family court information could not be used in those proceedings without permission (because it would amount to a contempt). But nothing did or does stop him knowing about the information in both sets of proceedings as long as he held one appointment as the father’s legal adviser.

In fact, it is not infrequent to have a situation where different departments within one legal aid firm represent the same party across criminal and family jurisdictions and where sharing of information between the two teams is entirely commonplace and permissible? Nobody complains about that.

None of the cast appear to have drawn the court’s attention to FPR 12.73(1)(a)(ii) and (iii). It certainly isn’t mentioned. I think it makes a big hole in the point about ‘material imbalance of disclosure or cross-jurisdictional knowledge’, because there is none. Or none that is at all referable to the QLR appointment.

How can it be right then, that a complainant can say ‘oh this is unfair he can see all that information’ and that can form the basis (part of the basis) for termination of his appointment? When a moment’s advice to that complainant to explain that: actually, it doesn’t make any difference, he’s entitled to see it anyway – would cure any reasonable perception of conflict or unfair advantage?

As for the conflict of interest point. It plainly would not be a conflict of interest for Mr Fidler to act in both family and criminal proceedings if instructed by the father in both and there is no suggestion of a conflict in the usual sense (previously acted for opposing party, for instance). The argument about conflict seems to have been largely based upon the (fallacy about) advantage achieved by knowledge of both sets of proceedings, and partly upon the (important) fact that the appointment is made by the court, that the duty is owed to the court rather than the ‘client’ (not-client), and that this is all wrapped up with ‘independence’. That, I acknowledge, is an ethical complexity, and it is one that is made more complex when there is a concurrent duty to the court AND to the criminal client – but it is an ethical complexity which is inherent in the QLR scheme.

One only has to read the statutory guidance to see the linguistic difficulty of describing the role without reference to terms like ‘client’ and ‘instructions’. The prohibited party is not a client and the QLR isn’t to take instructions, But they do have to speak to them in order to find out what their case is, which is definitely NOT to be confused with taking instructions. Got that? And of course, when it’s convenient the court is – as here – happy to allow the QLR to pretend they are a client instructed qlr. Tales of judges encouraging – or expecting – lawyers to behave exactly as if they were instructed by the not-client (help with negotiations, drafting orders, advice) are rife, notwithstanding the paucity of fee for QLRs. Ethical conflict is not a rarity in this domain.

And of course all lawyers, whether qlr or QLR flavour, are independent. And all owe a duty to the court even if they are instructed by a party. That is why, for instance, a party-appointed lawyer is no more entitled to ask inappropriate questions of a (vulnerable) witness than a QLR and a vulnerable witness is equally well protected on that score.

The President says this about conflict:

Whilst no strict issues of conflict of interest apply as between Mr Fidler and the mother, there are issues, or potential issues relating to the different disclosure regimes as between the family process and the criminal process. In short, Mr Fidler will be party to all of the disclosed material related to the criminal charges, whereas the mother and her lawyers do not have sight of that material, none of which has been disclosed into the Family proceedings [my emphasis]

Here, the conflict is all about having special access to the criminal process. Respectfully, I think this can’t be right, for all the reasons I’ve set out above (plus, if there really was some relevance in the criminal papers then an application for disclosure of them could and should have been made). The President doesn’t really explore conflict in any broader sense.

BUT it is arguable, I think, that a potential conflict of interest arises between such a lawyer’s duty to a criminal client (including duties of confidentiality) and one’s duty to the court in other proceedings (where no such duty is owed). That doesn’t seem to have been addressed, but I think that is what I would be worrying about if I were in Mr Fidler’s shoes. I would be thinking about that upon appointment (and I think I would not agree to appointment, but every lawyer must make their own judgment). If I am right though, it is not at all case specific, and that sort of conflict arises in all cases of dual QLR / qlr instruction because there are two different clients. If the QLR has not identified the conflict and withdrawn, wouldn’t the mere fact of the co-occurrence of the two roles and two sets of potentially competing duties be sufficient in and of itself to strike them out? Yet in this judgment, the court suggests that the discharge of a QLR is fact specific and multifactorial, and specifically discards the idea of a blanket prohibition, which leaves open the possibility of this cropping up again. Or of enthusiastic complainant advocates trying to expand its reach and effect.

It’s easy to say that ‘well, it was just easier to get a fresh QLR’, stop over thinking it – and wave it away (and actually at paragraph 17v) says in terms that another QLR will be found’). But in my experience it isn’t easy to ‘just get a fresh QLR’. They are like hens’ teeth. And all that seems to have happened here is that a father who was getting a free (but constrained) service in that a lawyer would ask questions of the complainant that went to the ‘essence of his case’, is now either going to have to pay for the same lawyer to do the full service job of representing him fully (questions of all witnesses, oral submissions, drafting etc) or he is at risk of being left with no QLR or more delay. That seems…..odd. The President summarises the purpose of the QLR scheme as being ‘to enhance the quality of the evidence of a vulnerable witness and to reduce the potential for additional distress’, which must be right. But isn’t it also aiming to ensure a level playing field, fairness in order to ensure an Article 6 compliant trial for all parties (whose culpability has yet to be determined)? I know that it is precisely this consideration that led the court to step away from the idea of a blanket ban, but…

Perhaps, if the father is able to afford to appoint Mr Fidler ‘properly’ all along, we might not have a huge amount of sympathy or concern for him, and probably no harm done. But not everybody will be able to afford to pay for representation. And this isn’t just about this father and this lawyer. I can’t imagine it will happen often, but if in another case the court happens to appoint the same lawyer acting for a legally aided criminal defendant as a family QLR, that litigant might well think that this happy coincidence at least allows a helpful continuity and breadth of understanding. It might be seen as a marginal advantage, and even if it is a happy coincidence, why should it be taken away from this litigant where it couldn’t be from a wealthy or legally aided party?

So, when you really start to think about this decision and what it actually means, it inadvertently reveals the elephantine bigger problem. A QLR is supposed to be an Article 6 fair trial compliant alternative where a prohibited party (unlike the criminal jurisdiction this is usually but not always someone who can’t afford a lawyer) wishes to challenge the evidence of the other party (rather than someone with a gleeful lust for asking horrible questions of their ex for fun – though there are a few of those, too). It is meant to ensure that the needs of both parties (who may both be vulnerable) are met, and so that best evidence is achieved and sound decisions reached. The provision that is made for the prohibited person is not only of a different character than a ‘normal’ lawyer appointment in terms of instruction and scope (instructed by court, questions of prohibited party only, not permitted to ask questions of their choice (or even to request to ask those questions, no speeches, no advice), but it now also appears to be the case that a complainant can raise objection to the identity of a QLR on the basis of distress or perceived bias – even where that perception might be ill founded. Of course, when we are dealing with arrangements for vulnerable witnesses subjective experience and perception are legitimate considerations – but only to a degree. Such an imposition would never be permissible for a qlr appointed by the party, on grounds that (with very limited exceptions) a party has a right to choice of representation. The judgment explicitly acknowledges that. The complainant here won’t be able to say (if he does go on record and appear) that Mr Fidler should be discharged. He will, if appointed ‘properly’ be entitled to ask her questions even if she thinks it is jolly unfair that he knows all about the criminal proceedings. Why should that complaint be permissible just because the other party hasn’t the means to pay for a lawyer themselves?

So I don’t think I really like the idea of a right to object, which is what this judgment effectively creates. I think its burdensome on the complainant, will feel (subjectively if not objectively) very unfair to the prohibited party, and will burn resource. I think it might inadvertently invite further *cough* exploration in other cases. Whereas, if the court as ‘client’ took the conflict point and discharged as soon as the dual instruction was known in all cases (or better still if the rules simply forbade such instruction), such disputes would not need to be dealt with. If the President is right that there are enough QLRs to go around this should not be a problem, and it would avoid delay, stress and wasted resource – without the complainant having the additional stress of applications like these, and without the risk of complainants getting the idea that they can pick and choose who they are asked questions by, or that they can further restrict the other party’s ability to defend themselves by virtue of the fact that they are the subject of a QLR direction (which I think is unhelpful for everyone involved).

Anyway, for me at least, this decision is quite a poignant reminder of the substantive difference between the entitlements of a party with funds as compared to an impecunious accused (the prohibited party is usually the accused). A QLR is not ‘just like having your own lawyer’. A QLR is not ‘your lawyer’ at all (except of course, where they are).

Colleagues, we have a problem

Harriet Harman KC’s report is out. It brings with it a complicated mix of depression and optimism: depression (but not surprise) at how bad things are, and optimism because this report was commissioned by the Bar Council on our behalf and is now being embraced by it. They do so buoyed by a groundswell of support for action and change. We hope that other bodies who also are required to do their part will step up to the plate. The BSB for one – I haven’t seen any immediate response from them (though their home page does link to a ‘new’ page on bullying and harassment.

There was one section of the report which left me feeling more pessimistic than anticipated, and that was the section about the judges (Chapter 10). I didn’t feel optimistic about that. Joshua Rozenberg has done a summary of the report here, so rather than repeat that I thought I’d focus on Chapter 10, which Joshua doesn’t deal with in any detail.

This is what Harriet Harman says about the judicial response:

There is, pre-existing this Review, a body of compelling evidence indicating a substantial problem of judges bullying barristers. …During the course of the Review I received abundant, disturbing and compelling accounts of judicial bullying….

In their [the judicial] response the veracity of evidence of bullying and harassing behaviour by the judiciary was challenged…

The judiciary has not, to date, expressly acknowledged that there is in fact a problem of judicial bullying of members of the Bar. However, I recognise that steps have been taken in recognition of their concerns, such as commissioning independent research in 2021 to gain a better understanding of inclusion, bullying, harassment and discrimination issues; the Statement of Expected Behaviour in 2023 (which covered treatment towards all court users and encouraging openness to feedback); the LCJ’s statement of 1 May 2025 to the whole of the judiciary; and ongoing leadership and inclusion training. In order to effect change, a problem first needs to be acknowledged. 297. In any event, in my view, any apparent scepticism as to the credibility of the accounts of bullying simply cannot stand in the face of the discrete accounts of judicial bullying behaviour given to this Review by a large number of individual members of the Bar practising in different jurisdictions and geographical areas on different occasions. The nature and extent of the concerns raised and the similarity of the allegations being made cannot sensibly be rejected as of no forensic evidence.

The judiciary’s submission to the Review casts doubt on the validity of complaints stating: “there can be a difference between an individual’s perception of how they were treated and an objective assessment of that treatment”. It may well be the case that some barristers mistake justifiable demands for high standards and ‘robust case management’ as bullying. But that cannot be a justification for refusing to acknowledge what is widely recognised everywhere, namely that there is a problem of judicial bullying of barristers. The sheer quantity and quality of accounts given to this Review cannot reasonably be categorised as misunderstandings or mistakes of perception….

The LCJ [Lady Chief Justice – ‘top judge’] has been clear in her communications with me that the judiciary has never sought to excuse inappropriate behaviour and that they have always said that inappropriate behaviour is unacceptable. Reasons advanced by the senior judiciary for bullying and harassing behaviour are: that judging is very stressful; that they didn’t mean it; or they didn’t know the rules….

judges are not like other court users. They are in charge of their court. It is stressful for everyone, including barristers, to work in busy and under-resourced courts. But that cannot be used as a justification for unprofessional behaviour. However stressful the circumstances, it is unprofessional for judges to lose control…

….the Lady Chief Justice states, “I firmly believe that Judicial Office holders do not intend to cause offence”. However, the belief amongst many at the Bar, based on the nature of the bullying conduct they have described, is that it cannot plausibly be asserted that when it comes to bullying of barristers that no Judicial Office holders intend to cause offence….

ignorance of the standards expected cannot be an excuse, that is even more the case for judges. Judges have to set the standards of behaviour in their court. They cannot do that if they seek to excuse their misconduct by saying they don’t know what the standards of behaviour are….

I am concerned there is a failure to understand the power dynamics entailed in bullying. In referring to informal routes for a barrister to make a complaint the judiciary says: “The first and most obvious is for the barrister to raise the matter with the Judicial Officer holder directly. This can often be done discreetly and simply after the case or hearing has concluded”. When I tested with barristers in each of the circuits, the judiciary’s proposition of this informal route with barristers in each of the circuits, it was met with a mixture of bewilderment and incredulity.

Above all, there was dismay that the judiciary could make a suggestion which was deemed so implausible and showed no understanding of the power dynamics between the bully and the bullied.

 

I’ve extracted what seem to me to be the key points in this section (marking omitted text with a …). The full report, and the full text of the section on Barristers’ experience of the judiciary can be found here from page 90. It certainly seemed to me that the wholehearted embrace of the need for change that one can see in the Bar Council’s commissioning and preliminary response to the report was less apparent as I read through that chapter, and Harriet Harman’s language is no doubt carefully chosen. But perhaps we will see responses from the BSB and Judiciary in coming days, when they have read the compelling battery of accounts of their experiences at the hands of fellow barristers and judges (and sometimes solicitors and clerks) which are contained in the report. [Update: here is the very positive response from the Lady Chief Justice to the Review, which says all the right things. And here is the BSB responsehttps://www.barstandardsboard.org.uk/resources/press-releases/the-bar-standards-board-welcomes-the-independent-review-of-bullying-harassment-and-sexual-harassment-at-the-bar.html.]

Today seems like a good day to re-up my own post about Judicial Bullying, which I wrote back in 2017. I’ve had a few moments since then when judicial conduct has made it extremely difficult for me or my colleagues to persist in doing our jobs, and although local cultures change as judges retire it seems to me looking back that there is almost always at least one court centre that everyone knows to be wary of. There is some distance to travel for us all, I think. I end by saying what I said at the end of my post in 2017: for anyone experiencing judicial bullying, or bullying or harassment at the bar generally – do please talk to colleagues at the bar for support. The report sets out the current key ways to seek help (which hopefully are to be improved). But if you can’t talk to someone in your chambers talk to someone outside it. My virtual door is always open.

Joint Research : CAFCASS and Women’s Aid

This post is one of mine, but originally appeared on The Transparency Project blog. I have re-posted it here but this blog also houses some of my previous blog posts about Women’s Aid and it seemed right to include this post in the repository of things I’ve written about them. The original post can be viewed here.

 

CAFCASS and Women’s Aid have collaborated on research about allegations of domestic abuse in child contact cases. We published a guest post by psychologist Sue Whitcombe on this here : Looking beyond the headlines: domestic abuse allegations in family proceedings.

We also thought it would be helpful to look further at what this research does and doesn’t cover. Before we do, it is fair to point out that our Chair, Lucy Reed, has in the past been critical of some of the work of Women’s Aid : broadly speaking as to the evidence base for aspects of their campaigns (See here and here and associated links for examples). That said, she also recently ran a workshop at the Women’s Aid conference on behalf of The Transparency Project, to help those working with survivors of domestic abuse to support their clients through the court process (including helping them to understand the forensic process and to come to terms with the fact that allegations are just that – allegations – until tested and proved). The Transparency Project is an educational charity and our main objective is the provision of balanced and accurate information. We don’t have an agenda beyond that, but we are not afraid to disagree with either side of the argument. We try to present things in a neutral way.

What is the Cafcass-Women’s Aid research about?

It ISN’T about rates of domestic abuse. It’s about the prevalence of ALLEGATIONS of domestic abuse and the responses to them. That is to say – if those allegations were true, do the system’s responses to those allegations look safe and appropriate?

It ISN’T a study about parental alienation. It may be (as Sue Whitcombe suggests) that some unproven allegations of domestic abuse are false or exaggerated to further an agenda of alienation, but that isn’t something the Cafcass study sets out to consider. It might be a topic ripe for some further research – but it isn’t something this study aims to tackle.

Domestic abuse or allegations of domestic abuse?

The data analysed is about how many allegations are MADE, not admitted nor proven. In most places the report is very careful to distinguish between allegations and abuse, though there are a few slips, and when the report is talking about the impact on children it talks as if a) abuse is established and b) abuse is the cause of any presenting distress / issue (as to which see Sue Whitcombe). It is fair to assume that a reasonable proportion of those allegations come from people who have actually experienced what they allege they experienced. Some may be wrong, exaggerated or false – but any argument about precisely how many would be sterile. Some of the people making allegations in this data set (and their children) needed protection. Some of the people accused in this data set (and their children) needed protection from false allegations. This study can’t tell us how well they were served, but we can extrapolate some points.

What does the data show?

About 2/3 of cases involve allegations of domestic abuse. That isn’t a new stat – it’s often said to be around that figure, so this confirms that trend. And, as we already know, dads are more likely to be the subject of allegations than mums.

The sample size is relatively small (216 cases, of which 40 were subjected to qualitative analysis) and the study is based on incomplete data, as it was drawn solely from Cafcass’ files, which are known not to be a complete record of everything (in particular orders are often not kept). For example, in about 1/3 of the cases covered, the final outcome (court order) was simply unknown. This has real potential to distort the stats. It is a shame that the study was not larger and more robust in its methodology, and whilst we appreciate CAFCASS are working on limited resources, we do think this is the sort of topic which deserves a rigorous treatment and the prioritisation of resource (see here an example of a larger study on a related topic for comparison). Sue Whitcombe has set out some of the limitations of this research in her post, so we’ll try not to repeat that.

However, some patterns emerge which seem likely to be replicated more widely :

  • There were 126 female alleged victims and 40 male alleged victims. (The report does not state whether the cases included same-sex couples.)
  • Where women made allegations, they made a higher proportion of allegations of coercive control type abuse (and sexual abuse) than men who made allegations – that is to say, almost all (84%) of allegations about women were of physical abuse, whereas only just over half of allegations against men were of physical abuse.
  • Where domestic abuse was alleged, at first hearing stage the court was most likely to make ‘no order’ about contact (42%), with unsupervised contact ordered in 23% of cases. In cases without allegations, by contrast, the majority (55%) of orders were for unsupervised contact. (This finding differs from previous research by Hunter & Barnett in 2013, who found courts reluctant to make a ‘no contact’ order at interim stage.
  • At first hearing where domestic abuse was alleged, about 1/3 of recommendations in ‘schedule 2 letters’ (brief initial saety reports) were for no contact, just under 1/3 were for supervised contact and just over 1/3 for unsupervised contact.
  • Where there were allegations of abuse, it was less common for unsupervised contact to be ordered (39% in cases with allegations against; 48% without).
  • Cases featuring allegations of abuse were more likely to conclude with an order for no direct contact (19%) than cases without (11%).
  • Cases featuring allegations of abuse were more likely to conclude with conditions on contact.
  • Cases featuring allegations of abuse were more likely to conclude with contact that was supervised or monitored in some way than with contact that wasn’t.
  • Referral rates to Domestic Violence Perpetrator Programmes seem low. (They are often unavailable or a perpetrator is deemed unsuitable if he doesn’t accept findings; courses are less likely to be available to women).
  • Nearly 20% of cases involving allegations ended up without an order for direct contact, in contrast to the wider picture of 88% of fathers succeeding in contact applications in the 2015 Harding & Newnham research. That was a more in-depth study of 174 cases in 2015, in half of which there were allegations of domestic abuse. Earlier research by Hunt and McLeod of a sample of 300 cases showed a success rate of 80% applicants having deirct contact order or agreed.

So, this report suggests that making allegations of abuse has an impact on the outcomes of contact applications. However, what these stats would look like if you break down proven or admitted allegations as against unproven allegations is simply known. In our view, this is a question that really needs to be answered, because the impression given is that the mere making of an allegation makes it more likely a parent will be able to restrict the other parent’s contact at the end of the case. That may or may not be shown to be the case if we had the proper detailed data.

A legitimate criticism might be the decision of CAFCASS to prioritise research which is only able to answer a very limited set of questions, and which is inevitably going to beg almost as many questions as it answers. There is a pressing need for more data about this – it is a shame that CAFCASS did not decide to commission or participate in some academically verified research project that incorporated both CAFCASS records and court files in order to produce more robust results.

Leaving aside these issues, the study doesn’t seem to entirely support the proposition by Women’s Aid in their Child First campaign last year that the family court operates on the basis of “contact at all costs” – where allegations are made the initial response and the outcome are likely to be more cautious than where no such allegations are raised – whether they are treated sufficiently seriously or not, these allegations seem not to be being ignored.

Useful insights from this research include :

  • The apparent low frequency of fact-finding hearings compared to the frequency of allegations. This is difficult to interpret, but is likely in part to be as a result of the incomplete data – there may have been fact-finding hearings that did not show on a CAFCASS file, or allegations may have been admitted or proved via criminal conviction – or may have been rolled up with a family court hearing. It’s worrying if things haven’t improved since the Hunter & Barnett research.
  • Unsupervised contact seems to have been ordered at about a quarter of First Hearing Direction Appointments where domestic abuse was raised. These are likely to be mainly cases where contact was agreed and / or where unsupervised contact had already been taking place (85% of the unsupervised contact cases had involved previous unsupervised contact)
  • The report notes that “In discussions, Women’s Aid cautioned that this may not always equate to an ‘agreement’ about contact arrangements, and may be indicative of a context of coercion.” This is a fair point, and there is existing judicial guidance about ensuring that consent orders are truly consensual rather than coerced. However, we don’t actually know whether a significant proportion of these unsupervised contact arrangements were coerced – in some cases, parents do take the view that notwithstanding abusive behaviour a child’s best interests do require unsupervised contact. Perhaps in some cases they are yet to fully appreciate the impact of abuse on a child, perhaps in others they are making an informed decision and feel strong enough to manage handovers for the benefit of the child. But whilst this study incorporates a legitimate caution about potential coercion it doesn’t provide evidence about its incidence in ‘agreements’.

Responses to the research

We’ve not spotted much in the way of response to this research other than from fathers’ groups (and Sue Whitcombe as above).

For example, CYP Now report : Fathers group criticises domestic violence study. The father’s group in question is Families Need Fathers, who are reported as saying that  “unfounded allegations were resulting in children being “denied time with their dads for many months”” and that “the findings promoted the belief that “fathers are too dangerous to be trusted with their own children””.

The question of how family courts can deal effectively with allegations that turn out to be false without damaging a child’s relationship with its father, whilst those allegations are considered, is difficult, and one which FNF are entitled to raise. But the complaint is not so much that this research has failed to tackle the problem – it plainly doesn’t, but rather that it isn’t an issue that seems a priority for research (or thought) for CAFCASS. We’re not sure that it is fair, however, to suggest that the research promotes the belief that fathers are too dangerous to be trusted with their own children. The report does consider the prevalence of allegations against parents of either sex, and makes clear that, in a majority of cases, contact does continue notwithstanding the allegations (albeit that it may be restricted in some way). The research gives us a limited insight into what happens when allegations are made, without telling us whether they are true and without telling us what ought to have happened in any individual case.

It is clear that CAFCASS’ priorities have been nudged in this direction by the impact of prominent campaigns like the Child First campaign and the Women’s Aid Homicides reports. Whilst the Transparency Project agrees that this is an entirely legitimate area for study it is a matter of concern if research priorities are driven by media campaigns that themselves are based on a flimsy evidence base. We think that the important topics of child homicides and family annihilation justify more robust research treatment than hitherto, and would welcome further research in this area that can help keep parents and children safe at and after separation.

Ex Injuria writes that the collaboration of CAFCASS and Women’s Aid is An Error of Judgement. Their objection is not simply about the quality of the research but the decision to collaborate with Women’s Aid at all :

For them to be working cheek-by-jowl with an openly anti-male, feminist propaganda organisation such as Women’s Aid is a profoundly retrograde step and a regrettable error of judgement by their CEO, Anthony Douglas.

One might say that if this proposition were correct it would almost certainly also then be correct that CAFCASS ought not to engage with fathers’ rights groups. And we don’t think that can be right. We think it is unhelpful to refer to Women’s Aid in such derogatory terms. They are a campaigning organisation whose focus is on the needs of women, just as other organisations have their own client groups too. We don’t think that means they have nothing to offer or that it prevents CAFCASS from working with them. We do think that an organisation like CAFCASS ought however to be mindful of the perception created by working with particular interest groups in ways which may be perceived as being to the exclusion or detriment of others. It is important that CAFCASS should do all it can to be and to be perceived as unpartisan.

The rest of the Ex Injuria post makes some legitimate points about the inherent limitations of the research and also about the quality of CAFCASS recordings (these are interesting but no link to source is provided so we’re not quite sure where they come from),

We can understand why on one level some of those who hold concerns about the tendency to conflate allegations of violence with actual violence and the way that this can (at least in the interim) prejudice quite safe relationships between an innocent parent (usually a father) and their child, might perceive a bias here in CAFCAS’ decision to work with Women’s Aid, particularly given the lack of clarity about quite how they have worked together. Since writing her post Sue Whitcombe has asked @mycafcass for clarification about the extent to which Women’s Aid were directly involved in the research and whether or not they had access to confidential files. The answers, provided via twitter, should provide some reassurance – but they would have been better set out clearly in the report itself and the accompanying press material if CAFCASS wished to avoid creating an unecessary anxiety amongst some of its stakeholders.

One other aspect of the safeguarding process now built into the Child Arrangements Programme which doesn’t seem to be covered in this report is the utilisation and responses to the C1A form where a party (usually but not always a respondent mother) sets out a summary of allegations of domestic abuse. Anecdotally, where completed by a respondent rather than an applicant, these are sometimes not received and considered by CAFCASS or the court in advance of or at the FHDRA, and we wonder whether this is an area of potential safeguarding risk that might also warrant consideration in any further research study.

Other areas for useful future research might be around the rates of admission / proof of allegations of domestic abuse where made in family proceedings, and the differential responses to allegations proven as against those where an allegation has been rejected, including those where a positive finding of fabrication has been made. It would be useful to understand how often intentional alienation is demonstrably a feature of a case, as compared with the prevalence of allegations (given that anecdotally allegations of alienation seem almost as commonplace as allegations of domestic abuse). The Hunter & Barnett research findings were disturbing, and it is unfortunate that no one is funding an update.