Talking AT & OVER not TO & WITH

Sometimes courtroom dynamics reflect or even exacerbate the dynamics in a relationship. Sometimes courtroom dynamics are are played out on a macro scale.

Take, for example, the recent Womens’ Aid “campaign report” : Nineteen Child Homicides, which deals with tragic cases where fathers have killed their own children in the context of post-separation contact arrangements (and sometimes themselves or the childrens’ mother), and which is critical of what they say is a culture in Family Courts of prioritising a fathers right to contact over a child’s need for safety (of which, more in another post).

And, in the other corner, take Fathers’ rights campaigners, an example of which you see here, who express the same issue rather differently – denial of contact as a causal factor for male suicide (often accompanied by child homicide, as in the linked Fox News Article). They are also critical of the culture in the Family Courts, which they say prioritises mothers over fathers, and treats fathers with suspicion.

@childneedfather

How to reconcile these two polarised views of the world? Because they surely can’t both be right all the time?

What is sad is that there is a degree of validity in both perspectives, but as with the individual disputes there is a tendency on both sides to blame the system, and an inability to talk to one another constructively and an attempt to grab the attention of the audience by making impactful statements and shocking statements. Characteristic of both campaigns is a tendency to imply or directly assert bad faith by those working in the system, which is generally an unhelpful starting point (although it may be a feature in some cases, we need to be open to looking for other explanations for failure too).

Whatever the failings of the system (and they are many), one simply cannot blame anyone for the murder of their own children but the parent who has carried out the act, although one may look for ways to better understanding why that person carried out such a desperate act, and how we might better avoid such scenarios. Personally, I think the answers are more complicated than “no contact for all fathers with a history of violence” or “let fathers have contact or this is what happens”, which are ultimately pretty much the arguments I have heard made on many, many occasions by one or other “party” to this dispute about how to deal with contact (I’ll let you work out which party makes which proposition).

No doubt this irksome failure to take sides makes me simultaneously a Feminazi and an idiot with no understanding of risk or domestic abuse. I take heart in the knowledge that both camps will at least agree I am a callous fool who does not care about children.

Screen Shot 2016-02-02 at 10.44.47

I wish we could have a proper conversation about these things without it feeling like walking on eggshells, without people feeling compelled to respond with a counter argument. See this tweet, and short exchange with @childneedfather on twitter as an illustration – it is simply not possible to agree with any aspect of one “side’s” argument without the other “side” pointing out how their argument is better. It is seemingly impossible for either side to concede the other has a bit of a point : “if you’re not for us you’re against us”. (Incidentally, I am not picking on @childneedfather, with whom I have had some sensible discussions – it is just a recent illustration for me of a wider issue, a sort of ingrained knee jerk reaction).

Screen Shot 2016-02-02 at 11.02.50

I will probably be criticised for this blog post because we can’t talk about this stuff like grown ups. Hey ho. I’m used to being in the line of fire for pointing out the uncomfortable and for refusing to stay one side of the line.

Incidentally, I am writing a longer blog post about the Nineteen Child Homicides Report. It is unlikely to agree with everything the report says. Neither will it poo poo it and dismiss it out of hand.

Post script, whilst just clearing out my desktop I came across this tweet exchange which I screen-shotted to remind me to write a post along these lines some weeks ago. I had forgotten these when I wrote the post.Screen Shot 2016-01-07 at 18.00.48Screen Shot 2016-01-07 at 18.01.02 Screen Shot 2016-01-07 at 18.01.15

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 : http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html. 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.