Domestic Violence Injunctions – good practice reminder

I had to go back to the Red Book this week to check something about non-molestation orders and I came across this case, which I have read before, but which is well worth a reminder. It covers so much ground about what should not happen in non-mol cases, including one point which has bugged me for years but which I had thought there was no settled authority on – on previous readings of the case I had not absorbed the fact that the answer to my niggle was in there. The case is the judgment of R v R [2014] EWFC 48, [2015] 2 FLR 1005. Unusually, it can be found on Jordans Family Law but not on BAILII (or at any rate it doesn’t come up with the citation search function). I would have thought this is just the sort of case that SHOULD be on BAILII for litigants in person, particularly unrepresented respondents to non-mol applications to be able to find. I’ve linked to the Family Law coverage, which includes the full transcript. [Update, within a millisecond of posting the amazeballs @johnbolch found the BAILII link – here it is : I can also see from that link that the case is on WLR / ICLR too.]

I won’t rehearse the full facts, but it does make pretty grim reading. It’s an important thing to remember the boundaries of what is appropriate in applications for this sort of injunction, and the procedural requirements in order to be fair and just, particularly in an environment where there are undeniably perverse incentives to litigants to make allegations in order to secure “victims” legal aid. We know that there has been a spike since LASPO in non-mol applications and on perfectly reasonable explanation is that this is a distortion arising from the legal aid arrangements since 2013.

What you will recall from R v R if you read it at the time was the stern judicial reminder that the question on an ex parte (without notice) application was not “Why not?” but “Why?”. But there is more to R v R than that.

The point that struck me that I wanted to expand upon is the distinction between non-molestation and occupation orders. I don’t do many non-mols these days (faaahhr too important daahhling ;-)), and each time I go back to the law I struggle with the continual attempts to secure an ouster type provision by means of a non-mol, thereby bypassing all the law about the rarity of ex parte occupation orders. Usually my pedantry falls on deaf ears but now I have something to back my whining up with.

It is clear from R v R that care should be taken to ensure that non-molestations orders do not in effect amount to an occupation order by the back door – either through the imposition of an exclusion area or through other terms.

Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person’s freedom of action and require specific evidence to justify them. 

In R v R the judge stated she would not make an occupation order, but went on to prohibit the Respondent from entering the street and from communicating at all with the Applicant. If she expected them to continue under the same roof (with 5 children) how was F to conduct himself without either being ousted from the property or breaching?

There are specific reasons for this quite apart from the general (and serious) unfairness that can result, as illustrated by R v R – it is a criminal offence to breach a non-molestation order, but not so with an occupation order – so the correct characterisation matters. Secondly, a respondent is entitled to rely on the expectation that he will not be ousted from his home without first being heard unless the circumstances are really pressing and serious.

The Red Book (Family Court Practice 2015) asserts, rightly in my view, at 1015 that :

A “stay away” clause [eg not to come within 100 metres]…could be expressed as part of an occupation order but it is not necessary to make an occupation order solely for that purpose and can be included in a non-molestation order. Such a provision should not be included as a matter of routine, must be proportionate and necessary and supprted by evidence [R v R cited]. A “get out” order, ie an order requiring a party to leave, cannot form part of a non-molestation order and must be made as part of an occupation order. 

There are some useful reminders also of the need to interpret the rules in relation to relief from sanction appropriately where the stakes are high and only one party, usually the one not at risk of losing their home, has the benefit of legal aid.

Sticks and stones…

Domestic violence is now widely understood to encompass more than punches, and to affect both men and women. Since 2013 the cross-government definition of domestic violence encompasses physical, financial, sexual, emotional and psychological abuse and coercive and controlling behaviour. it is this definition which is replicated in the practice directions to the FPR 2010. As noted in the Family Court Practice 2015, coercive control fits quite comfortably within the range of behaviours which can properly be injuncted by a non-molestation order made by the Family Court.

But coercive control has not to date been a criminal offence (save where it is also a breach of a non-molestation order).

Section 76 of the Serious Crime Act 2015 will change that. It has not yet been implemented but is likely to be brought into force in the next few months.

I spoke at a conference on Coercive Control in Bury St Edmunds this week and as a result BBC Radio Suffolk ran a piece about coercive control, asking Marilyn Stowe for comment. I did not hear the radio show but I have read Marilyn’s subsequent blogpost in which she sets out her views, and whilst I agree with some of it (Marilyn usually talks a lot of sense) there are some points I disagree with. You can read it here : Section 76 and the Serious Crime Act on Radio Suffolk.

At the conference I talked about coercive control in the Family Courts. I won’t bore you with what I said, but what I noticed was this : Although most attendees and speakers were female victims or worked with female victims, and as such had experience primarily of domestic violence as it affects women rather than men, all the speakers I saw (I had to leave before the end) acknowledged (rather self-consciously) that abusive behaviour including coercive control could affect men as well as women. One talked about how debate around domestic violence is very polarised – feminist versus men’s rights. And that of course is exactly how it is, and it’s a shame that is so. It does not help anybody. We should be able to talk about the gendered nature of domestic violence without being accused of suggesting it does not affect all genders and sexualities. Debate can become stale and formulaic in this environment, replicating the gendered interactions in an intimate relationship – an abusive relationship on a population size scale, played out in public as we call each other feminazis or father’s rights nutters (or whatever). We shouldn’t have to fit in one or other box to have a voice.

Marilyn’s blog expresses some worries about this new offence of coercive control and how it will work in practice. I have some concerns also, but they are not the same as Marilyn’s. I recognise that coercive control is “a thing” (and a serious one) but as the convoluted crafting of the legislation demonstrates, on the margins there is an element of subjectivity about what it actually is – a punch is a punch but one person’s “regularly being a bit of an arse” is another’s coercive control. But that is not to say we should hold up our hands in despair and do nothing. I worry though that it is an offence which is likely to be very hard to successfully prosecute and that either there will be a low rate of prosecutions or a high rate of failed prosecutions (or both). That is because this offence has several components each of which will need to be proved beyond reasonable doubt. Marilyn says

…good intentions are one thing, effective intervention in the intricacies of human behaviour another. How do you enforce such a law? What corroboration will be judged sufficient to found a prosecution? Will it ultimately boil down to her word against his and therefore a question of which one of the two parties you believe?

Well probably not Marilyn, no. I imagine in most cases in order to secure a prosecution there will need to be some third party or independent evidence of the behaviour in question. The prosecution must satisfy the high standard of proof – that is a significant safeguard for defendants.

Marilyn goes on to say this :

A defence is set out in Section 76 (8). It requires the defendant to demonstrate the behaviour was reasonable. But what if the infringing behaviour was exaggerated or worse, never happened at all? Could it come down to which party is the more skilled actor?

In other words, is the person claiming to be the victim really as innocent as they claim? A seriously- held assumption behind such initiatives is almost always ‘women are the victims, and men are the guilty parties’, but the uncomfortable truth is that I have encountered more than one case in which the woman, skilfully playing the victim for all its worth, turned out to be the aggressor or abuser. Such women are readily believed when they claim that their partner is “very controlling” and the men targeted are left to struggle against an immediate gender prejudice and assumptions of guilt.

I have some difficulties with this. Firstly, the description of the defence is inaccurate. The defence is available only in cases where an alleged victim is caused serious alarm and distress but not where the alleged victim is made repeatedly to fear violence. The defence is available where the defendant is able to produce “prima facie” evidence that s/he believed themselves to be acting in the alleged victim’s best interests, AND the behaviour was in all the circumstances reasonable. It is NOT simply a question of the defence showing the behaviour was reasonable. Furthermore, once the defence have done enough to legitimately raise the defence the burden of proof shifts back to the prosecution to prove the defence does not apply to the criminal standard. This is really important. The defendant may say (to use an example drawn from my professional experience) “well I withheld her prescription drugs because she was addicted to them. I did it for her own good”. Fair enough. Now the defence have to prove that ain’t so. That is likely to be quite tricky. And don’t forget, regardless of the defence, the prosecution still have to prove beyond reasonable doubt that the alleged behaviour took place at all – on multiple occasions.

If, as Marilyn suggests, the infringing behaviour was exaggerated or entirely fabricated (which I acknowledge is not unheard of in Family Court cases) – it is highly unlikely that the prosecution will be able to satisfactorily prove the “substantial adverse effect on [the alleged victim’s] usual day-to-day activities” that is part of the offence in “alarm and distress” cases. There of course is a risk of malicious fabrication, but this is true of many offences – the presumption of innocence and the high standard of proof are the means by which the criminal justice system protects defendants against such scenarios. As with domestic violence or rape cases, if there is a context of Family Court dispute and relationship breakdown that might give some motivation to a false allegation that is something I would expect the defence to explore – and the CPS to bear in mind when making charging decisions.

But that is not all I disagree with. Marilyn complains that the assumption behind this initiative is that women are the victims and men are the guilty parties. From where I’m standing the only one making gender based assumptions is Marilyn, where she criticises women (not men you will note) for playing the victim and claiming they have been overborne by controlling partners. In my experience it cuts both ways – I’ve seen plenty of men and women claiming to be victims of violence or abuse – and a fair few of each gender where I have wondered if they are revelling too much in their status as victim rather too much, and where in taking on the role of victim they are able to control both court process and their “abusive” ex. The variety is infinite. I’ve seen cases where there is “mutual volatility”. I’ve seen cases where men are or claim to be victims of violence from mentally ill or alcoholic women (in my experience this is quite a common trope that is gendered – but that’s anecdotal) – and it is very hard to see whether the mental ill health / alcoholism is a) real and b) whether it is chicken or egg (cause or effect). I’ve seen cases where father’s appear to manipulate their status as a victim of gender prejudice to good effect too. It’s not my role as counsel to judge who is telling the truth (we pass that buck to the judge), although sometimes a hunch is inevitable – but some of these cases are more plausible than others, and some involve two parties who have each obviously experienced their role as one of victim – without being able to see their own abusive role in a mutually destructive relationship. The fact that one partner is abusive does not necessarily mean the other is not. So yes, I agree human relationships involve two agents and they are complicated and messy and difficult to capture in legislation – and I also agree that patterns of abusive behaviour are often gendered. But I don’t think that this legislation is gendered. If potential defendants are at risk of malicious allegations that will be as much a risk for female defendants.

It goes on…

Why would women behave in such a way? Perhaps it goes way back in their relationship. Perhaps their husband left them for somebody else or she fell out with them for some other transgression. A woman in such circumstances, if eaten up with anger or bitterness, may find herself very tempted to try and make life as difficult as possible for her ex, possibly using their children as a weapon and making allegations against him. She may even seriously believe the allegations she makes by the time they come to trial. A lie can be embellished and embroidered whilst the truth is lost in the mists of time.

This all happens. I’ve seen it a hundred times before. But about fifty of those times it was the other way around. Mums and dads use the kids as weapons ALL THE TIME.

I think it is worth saying that in my experience it is jolly hard to get findings of coercive control in the Family Court, even with the lower standard of proof and evidential flexibility of the Family Court. There are no doubt multilayered reasons for that, which I won’t go into here, but it does suggest that concern about the risk to poor maligned innocent husbands by their bitter witchy exes may be rather over-blown.

If a parent wishes to manipulate the system by making false or exaggerated allegations of domestic violence simply in order to secure legal aid (a perverse incentive of the legal aid cuts that I acknowledge) they have little need to put themselves through a criminal trial in order to do so. A non-molestation order will do the job – and the standard of proof is only the balance of probabilities. There is limited evidence to prove the hypothesis that the legal aid cuts have led to a surge in fabrication (stats showing an increase in non-mols merely show that more people are raising their DV – but it doesn’t show that the allegations they raise are necessarily fabricated).

Call me a feminazi if you like (for sure somebody will), but Marilyn does women a disservice in implying that they are the sole or primary perpetrators of abuse by means of malicious allegations – even if she does specifically acknowledge that most people tell the truth. This stereotypical spiteful ex-wife does exist – I’ve represented her, I’ve been on the other side. But the use of this gender stereotype in isolation in order to illustrate the discriminatory nature of a piece of legislation is beyond ironic.

Men and women are equally capable, in my experience, of being utterly vile, selfish and abusive – and they lie and manipulate in equal measure. The different genders may tend to exercise control in different ways – but I prefer to judge individuals on their actual behaviour not their gender. And I prefer to judge this law on the basis of our prejudices but on its performance when in force.

You can run but you can’t hide

This is a guest post by Sarah Phillimore, who blogs at Child Protection Resource.

NB I will allow comments on this post as I usually do, but I will not permit comments which are offensive or insulting (robust challenge is ok as ever) and I will not permit comments which I consider are or may be impermissible or inappropriate for legal reasons.


The sad case of Rebecca Minnock has provided manufacturers of stilts for nonsense with a bonanza couple of weeks. See this post from the Transparency Project if the details of this case have escaped you so far.

Various online groups have unleashed a tsunami of ill-informed and prejudiced opinions against fathers and male judges, their view appearing to be that as women give birth and nurture their child, women are better parents and if they say the father of their child is an abuser, then he probably is, court judgments be damned. Into this fray steps Maypole Women, offering the view of one of their volunteers ‘Karen’ to explain why Rebecca Minnock was on the run : Rebecca Minnock on the run. In brief, this is because the family courts refuse to recognise the importance of primary carers.

No further information about Karen is offered so I can only hope that her qualifications, expertise and experience in child development, law and psychology are impressive, given the confidence with which she asserts some very broad and bold propositions. Nor does Karen want to distract us from her opinions by providing any support for them, via links to any reported cases or published research. But Wikipedia does get one mention.

So if I am about to be very unfair to Karen in my analysis of her argument, if I have actually missed some recent and seismic shift in either law or child psychology I am happy to apologise and admit I was wrong. Disclaimer: there is so much in this article that I think is wrong, I haven’t attempted to debunk each and every example of such wrongness. Please don’t assume that if a particular assertion by Karen goes unchallenged, it means I agree with it. Because I almost certainly don’t.

General points

First, some general points. Karen makes a half hearted stab at reassuring us that she isn’t just talking about ‘mother’s’ as primary carers – family courts are going against nature, ‘whatever the sex of the primary carer’. But Karen is not being honest. It is stated explicitly elsewhere in this article that you only qualify as a ‘primary carer’ if you have a uterus:

The over-riding focus of ‘equality’ obliterates the history of all mankind, the very nature of mankind, in which mothers are primary carers biologically and, whether by nature or nurture, usually psychologically too. 

Way to go family courts! Even your most florid detractors have not previously claimed that you ‘obliterated the history of all mankind’. Any how. At its beating heart, this article revolves around the psychological frailty of some women, who have identified with the role of mother to such an extent that any perceived threat to that status is a threat to their intrinsic well being. Not only must this frailty be recognised and respected argues Karen, it should be honoured and must be reflected in the development of family law and policy.

Karen describes these women thus:

What parent dares put their child first, in the centre of their heart, when the pain of loss – not just of your child, but also of your main purpose and identity in life – can be so devastating?

Because some women react to parenthood in one kind of way does not mean that all women do, or should. It certainly does not mean that we permit law and policy to develop to suit the psychological dysfunction of a minority.

‘Primary care’ is described by Karen as the ‘continuous mental process of overseeing, organising, knowing, caring, safekeeping and reassurance’. No one else is capable of understanding the ‘inner world’ of this primary carer. This primary care function is ‘fundamental to the wellbeing of the primary carer’.

This model of parenting described by Karen is dysfunctional. That doesn’t mean I am suggesting those who practice it are mad or unpleasant or trying to do anything other than their best. I am saying that it doesn’t work.

It doesn’t work for two reasons: first, it is a potentially absurd and dangerous elevation of parenting to an unsustainable gold standard which simply isn’t achievable for the vast majority of parents who have anything else at all going on in their lives.  If you have to ‘continuously’ oversee, organise etc one child, where do child two and three fit into this? Where do your relationships with your family, friends and partner? Your work? Your hobbies?

Second, by putting an emphasis on how this role of the continuous overseer is  ‘fundamentally’ important for the wellbeing of the primary carer, is neither healthy nor helpful. I suggest there is a real risk here of simply conflating what is right for a child with what the primary carer thinks is right for her. If we accept that ‘self-efficacy’ (defined as people’s beliefs about how they can exercise influence over events that affect their lives) is something to strive for, given its positive impact on people’s sense of wellbeing, then we need to be concerned about anything that is likely to detract from that – such as setting up a child as simply a means to an end, by providing a primary carer with her identity.

Madeline Levine, an American psychologist and author of ‘Teach Your Children Well’  noted that there is a danger here of confusing ‘over-involvement’ with ‘stability’ and promoting the view that it is both good and noble to sacrifice yourself for your child. The children however, say something different here.

…you should hear what most kids say about this… while you think you’re giving your kids everything, they often think you are bored, pushy and completely oblivious to their real needs. But lets look at this very simply. If you are willing to give up your whole life and identity, what’s the message you have sent your kid about the value of other people, mothers in particular  

Particular points

Primary care is how every child, in every family, has their needs met. Primary care is a product of society, culture and biology. Primary care, to give and receive is a human right.

Karen’s position here is curious. I last studied child development 20 years ago, but I am not aware that what my OU text book says about other cultures has been challenged. The ‘monotropic’ image of biological mother as pre-eminent and sole ideal figure for infants is by no means universal across cultures. Many cultures pattern child care differently and the relationships that form around a new arrival can take many different forms’ – older siblings, fathers, grandparents, others in same household, nannies and child minders etc. The roles played by these other carers will inevitably dilute or even eradicate the possibility that a child has a primary carer, being that person who ‘continuously’ organises, oversees etc

Looking particularly at grandparents, research supports their significant involvement with raising their grandchild. For example, research jointly undertaken by the University of Hertfordshire and the Family Matters Institute in 2009 found that 60% of grandparents were involved in some form of child care, either on a regular or occasional basis. 28% regularly cared for their grandchildren in the evenings or at nights.

Not only is it likely that many children  will have a wider network of adult carers than simply their mother, it is untrue to suggest that all mothers are automatically in a culturally sanctioned position where they can or wish to be ‘continuously’ providing ‘overseeing, organising, knowing, caring, safekeeping and reassurance’. For example working mothers are now the majority of mothers. The ONS shows that in 2013 72% of married or cohabiting women with dependent children worked; 60% of lone mothers. A probable explanation for this high rate of working mothers is that society is structured in such a way to promote home ownership as every adults’ goal and yet homes are so expensive both halves of a couple must work to afford one.

Mothers working outside the home must devote a significant proportion of their physical and mental energies to something other than their child and must contract out much of this ‘continuous overseeing’ to other people or organisations.

Take a personal example. My daughter from the ages of 7 months to 3 years spent her waking hours each week as follows:  40 at nursery, 30 with me and 14 with other carers. Who was her primary carer in this scenario? If it wasn’t me, does that make me any less her mother? Is my understanding of her welfare deficient?

With regard to biology, Karen might be on firmer ground. Mothers are indeed biologically very different to fathers; mothers give birth to children after a gestation period of nine months. Women are more likely to take time off work after birth to take care of children. I do not dispute therefore that pregnancy and birth have more of an immediate impact on a woman’s life than on a mans. A mother often has more opportunity when a child is a baby, to be the one who is primarily aware of and meeting his needs.

It is often argued that it is the mother’s breastfeeding that supports her role as more engaged parent, but given the lamentably low rates of breastfeeding in the UK, this is not very convincing. The NHS Information Centre’s Infant Feeding Survey in 2010 showed that only 12% of infants at four months were exclusively breast fed, dropping to 1% at 6 months.

In any event, childhood spans far longer than then 12 months of babydom or even the 24 months into toddlerhood. Does this initial advantage in the primary carer race for the mother on the basis of her gestating and giving birth, turn into a fixed advantage for the next 18 years? I do not think so. Other adult carers can become attuned to the child’s needs and able to meet them. We all know fantastic parents who didn’t give birth and who didn’t breast feed. Even if one accepts the mother’s superiority by virtue of her biology, this is directly relevant for only a short window in the child’s life.

Primary care is a human right

‘Primary care’ is not a human right. You are entitled to argue that it should be, but it currently is not. You cannot sue anyone for breach of your ‘right’ to be a primary carer. A ‘right’ is not simply something that an individual can declare. A ‘right’ exists only if it is recognised by a legal system that will protect and enforce it. Otherwise it is just an irritating and meaningless phrase, used in an attempt to cloak spurious arguments with some degree of legitimacy.

Family law treats child care as a logical transaction, passing a child from one parent to another….The overriding focus of equality obliterates the history of all mankind, the very nature of mankind… the family courts’ lack of understanding of the primary carer function… results in practice that is, at times, barbaric. It is no different to wrenching children from unmarried mothers in the 1960s or from poor mothers in Victorian workhouses’. 

This is nonsense in its purest form – it makes no sense. No one could allege this in good faith who is aware of section 1 of the Children Act 1989 and the panoply of case law which explains and expands upon the clear driving principle of that Act – that the child’s welfare is the paramount concern.

There is no ‘overriding focus’ on equality. There never has been. I find it impossible to understand how anyone in good faith can draw parallels between a legal system in 2015 enforcing an Act which takes the welfare of children as its paramount concern and historical and thankfully long gone stigma against unmarried mothers or the poor. This profoundly inaccurate hyperbole is neither convincing nor helpful. The courts were not proposing to ‘wrench’ Rebecca Minnock’s son away from her. The courts were simply saying that if she persisted in making up allegations against the father and refusing to allow her son a relationship with him, that would  have an impact on how often and in what circumstances she would be allowed to have contact with her son, to protect him from her emotionally abusive behaviour.

Research shows women make false allegations in 2% of cases / How does the court know the allegations were false?

What research? What cases? We don’t know because Karen doesn’t tell us. I would be interested to know what she is talking about because my experience over 15 years in the family courts suggests that the percentage of allegations either fabricated or exaggerated is significantly higher than 2%. In this case however, the court found that the mother had ‘positively invented’ allegations against the father so presumably she is one of this 2%. Not according to Karen. Just because she couldn’t prove her allegations in court, doesn’t mean they are false.

This is true. Judges are human hence fallible. Mistakes are made. But what alternative system of divining facts does Karen suggest? Shall we ask the neighbours? Cast runes? Or do we entrust that decision to a legally trained professional, who has heard evidence from a variety of sources over many months and made a decision based on that evidence? What system would Karen like to operate if she were subject to serious accusations?


Good parenting is not about continually devoting yourself to understanding and anticipating your child’s every need. To make your own identity contingent on your role as ‘mother’ is unlikely to benefit either mother or child in the long run. Children as they grow need space to find out who they are and what they want. They are unlikely to be able to do this in the shadow of a constant overseer. Parents need to have the confidence to recognise the benefits to their children of a variety of adults in their lives who love them and look out for them. The model of primary care outlined in this article is likely to be a stifling and overly containing model of parenting for the majority of children.

Most of us, most of the time, are good enough parents – and most of our children, most of the time, benefit enormously from having us in their lives. To permit any parent any automatic right to limit or curtail the other parent’s involvement in a child’s life, is simply wrong. And when your arguments act as encouragement for vulnerable women to feel justified in breaking the law, these arguments are not merely wrong, but irresponsible and dangerous.