Contact Denial = Coercive Control?

I’ve seen advice to fathers in a number of places since the coercive control law came into force in January, which is not accurate. I’d forgotten about it until last night, when I came across a tweet from @f4jofficial last night.

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I don’t know if F4J are still offering this advice or how it is working out for them because they have blocked me on twitter (long story, tres boring), but I thought it would be useful to correct the misunderstanding about what the law does – and does not – cover that is inherent in the suggestion that men should report contact denial to the police and ask it to be treated as coercive and controlling behaviour under the new law.

The new offences are set out in the Serious Crime Act 2015, s76.

The bit we need are these parts of subsections (1) and (2) (the definition of the offence is more complex than this, but these are the bits that relate to the question of whether a parent denying contact to the other after the end of a relationship is committing an offence under this provision.

(1) A person (A) commits an offence if—

(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,

(b) at the time of the behaviour, A and B are personally connected…

(2) A and B are “personally connected” if—

(a) A is in an intimate personal relationship with B, or

(b) A and B live together and—

(i) they are members of the same family, or

(ii) they have previously been in an intimate personal relationship with each other.

So, in our scenario A is the contact denier. Let’s say, for the sake of argument, she is the mother of the child. B is the father of the child.

She would have to deny contact more than once or continuously. So stopping contact once is out.

It would have to be in its nature or purpose controlling or coercive. So, lets say she stopped contact because the child was genuinely ill or because the father was an axe murdered with an axe in his hand threatening to murder the child (slightly extreme example) – the purpose is not there.

The really critical point though is this : A and B must be “personally connected”. This has a specific meaning which is that either the parents are in an intimate personal relationship OR they must be living together AND either be members of the same family OR have previously been in an intimate relationship.

If A and B are no longer in a relationship and no longer living together A cannot commit this offence against B, through denial of contact or any other form of controlling behaviour. A might commit some other offence, but not this one.

In some cases A and B are not in an intimate relationship but continue to live with one another (for example because they can’t sell the house or can’t afford separate accommodation). Theoretically A could commit an offence against B IF she used denial of contact repeatedly or continuously to control or coerce B, but it is quite difficult (not impossible) to prevent a person spending time with a child when they are living in the same house.

Even if I’m wrong on all that B would still have to show that the behaviour had a serious effect on him that debilitated him in his day to day activities. See subsection (4).

(4) A’s behaviour has a “serious effect” on B if—

(a) it causes B to fear, on at least two occasions, that violence will be used against B, or

(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

Some parents will be very hard hit by denial of contact and their day to day functioning might be affected by a mental health issue – but it would have to be pretty bad to count for these purposes. I don’t think contact denial per se would cause the father to fear violence – but if it is accompanied by threats of violence there are probably other offences committed and other (easier and more appropriate) remedies, such as a non-molestation order.

 

What if B (the victim) is not the father but the child?

Let’s cover all bases, to make sure that we have thought about all possible scenarios. That is, we see A’s denial of contact as a denial of contact to the child (and of course it is the child’s right to contact we are often reminded to focus on)?

There are two major problems with this. Here we need to look at subsections (3) and (4) of section 76 :

(3) But A does not commit an offence under this section if at the time of the behaviour in question—

(a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and

(b) B is under 16.

(4) A’s behaviour has a “serious effect” on B if—

(a) it causes B to fear, on at least two occasions, that violence will be used against B, or

(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.

Let’s unpick that. Subsection (4) first. The denial of contact has to cause B (the child) to fear on at least two occasions that violence will be used against him. So, unless Mum is repeatedly saying something like “you will get a smack if you go”, denial of contact is unlikely to meet this criteria.

Alternatively it must cause the child “serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities”. If the act referred to causing harm in general terms one might I suppose be able to argue that denial of contact was emotionally harmful – but that is not what it says. The child must be “alarmed” or “distressed” – and more than a little bit. AND that alarm or distress must being stopping the child doing the normal things a child of that age does.

But EVEN IF we got over all those hurdles subsection (3) is fatal. The bit of the 1933 Act being referred to says this : 

(1)     For the purposes of this Part of this Act, the following shall be presumed to have responsibility for a child or young person—

(a)     any person who—

(i)     has parental responsibility for him (within the meaning of the Children Act 1989); or

(ii)     is otherwise legally liable to maintain him; and

(b)     any person who has care of him.

(2)     A person who is presumed to be responsible for a child or young person by virtue of subsection (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him.

It isn’t obvious to a non-lawyer (I had to look up the 1933 Act), but because A (Mum) has parental responsibility for B (child) and because she is caring for him this offence just does not apply. It is not an offence under this legislation for one parent to refuse to allow the child to see his father or the father to see his child.

I do not see any basis upon which this new legislation could be used by a father who is being denied contact except in the very limited circumstances where he is still living with the mother of the child AND her behaviour otherwise falls within the terms of the act.

So I am afraid that any father who reports a mother to the police for contact denial and suggests it is an offence of coercive and controlling behaviour is likely to be frustrated and disappointed by the response of the police (although I would be interested to hear otherwise). It is patently NOT what the act was designed to tackle, and I do not think it can be bent to that purpose because its wording simply does not stretch to encompass the sort of behaviour and scenarios we are talking about.

I am not condoning the denial of contact, but I don’t think this act is helpful to those denied contact, and I wonder if reporting a mother to the police in this way might itself be rather unproductive – and might contribute to allegations of harassment (I don’t think that the Act would protect someone who is being continuously asked for contact and complained about if they refuse to complain of coercive and controlling behaviour either – for all the reasons above). However using courts and police complaints in a tactical way in order to pressurize someone into granting contact could itself amount to controlling or coercive behaviour even if not covered by the Act, and is behaviour which could potentially lead to other sorts of action or orders being made against a father. If you are being denied contact for no good reason going to the police is probably not the best way of dealing with it.

I am intending this post as a constructive contribution to the debate on this topic, and one which offers practical guidance to fathers trying to resolve difficult situations. Sadly, it seems unlikely it will be received that way. Whilst I have been typing this post, this has been going on…Screen Shot 2016-03-17 at 10.47.28

I’m not sure precisely how this post will be interpreted as me fleecing fathers (gratis as it happens) but I am sure it will…

I will tweet this post to @F4JOfficial so that they can pass useful information on to their members (I can’t do it, I’m blocked). I might be a feminist but I do know the law.

24 month legal aid cut off for evidence of dv finally ruled unlawful

It’s taken long enough. But finally, the Court of Appeal has said what we always knew – the regulations setting out what evidence can be used to qualify for legal aid as a victim of domestic violence are unlawful. In short, the limited categories of document and in particular the 24 month cut off arbitrarily deprived victims of domestic violence whom Parliament had intended to protect of the very protection (legal aid) that LASPO allowed them. The Court of Appeal also found that the categories of evidence meant that a victim of financial abuse would struggle to tick the right boxes.

Suesspicious Minds has covered the judgment here. As he says, it’s a bit technical and involves a lot of stuff about Wednesbury and Padfield – but the thrust of it is as above  – the regulations went a bit far and were incompatible with what Parliament had intended to achieve (cutting costs whilst also leaving in place legal aid for victims of dv of all sorts).

So, a small hurrah for that.

As Suesspicious Minds points out though, it does not solve the problem for alleged perpetrators of dv who are left without legal aid (and of course this is also a problem for the alleged victim, who may have to be cross examined by him /her). That is in a different category however, because whatever you or I think, Parliament very definitely did decide for its own impenetrable reasons, that alleged perpetrators should not be afforded legal aid. That’s one that would have to be sorted by Parliament if it were ever to change.

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).]


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.”

 

Claire Throssell, mother to Jack and Paul, both killed in 2014 by their father, said:

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

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

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

 

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

 

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

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

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

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

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

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

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

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

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

 

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

Lord Justice Wall, 2006

 

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

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

 

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

ENDS

NOTES TO EDITORS

 Nineteen Child Homicides Executive Summary

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

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

Practice Direction 12 J

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

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

About Women’s Aid

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

 

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

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

Alice Stride, Media Officer, Women’s Aid