That harms report – part 2



In Part 1 of this blog series, I talked about the broader context and scope of the review.

Here I pick out some specific aspects of the report which held particular resonance or interest for me. Of course, this is selective – the report is huge. I can’t possibly cover and comment on everything. It is also meandering and conversational. Do not expect a neat structure.




The report tells us that there is a perception amongst professionals that false allegations of abuse are made as a sort of game playing or to delay or frustrate applications for contact. It notes, correctly, that the proportion of false allegations is small. But we need to be a bit careful here about what is a ‘false allegation’? It’s difficult to tell because the report refers to a literature review, which refers back to two pieces of research from 2011 and 2013, which many will not have access to. When I think back over my years in practice I can think of many cases where I have successfully resisted the making of at least some findings on behalf of an alleged perpetrator, or where I have been unsuccessful in securing them on behalf of an alleged victim. True, courts do not often make positive findings that allegations have been fabricated, more often they are left in that hinterland of incompatible experiences and memories. But as a matter of law a non-finding means that the allegation was false – even though it may not have been dishonestly made – if I consider all these non-findings it is difficult to accept that the number of ‘false’ allegations (in its broadest sense) is small. BUT, as the literature review that accompanies the report makes clear, the proportion of allegations that are even tested by a fact finding hearing has historically been pretty low (meaning its hard for anyone to really assess the rate of false allegations), and of course the only cases I really see are those which fall within that minority. So here I can see I don’t hold experience that is necessarily representative.


The more important point perhaps, is that relating to the professional perceptions about false allegations. From my own experience I can vouch that these are made – both by mothers and fathers. I would suggest that entirely and intentionally false allegations are pretty rare, allegations that are false because exaggerated or inaccurately recalled are pretty common, and heightened anxiety about sexual misconduct can in some cases lead to frankly delusional but genuinely made allegations of sexually abusive behaviour. Whether rare or not, it is really important that in each case proper efforts are made to distinguish between accurate allegations and false ones (whatever sort of ‘false’ they may be). Acknowledgment that false allegations are a phenomenon is why we need trials. If we were to accept all allegations at face value we would have no need to test the evidence, and decisions about children would be made simply on the basis of who got in first with their allegations. Because if we abandon the need for scrutiny of allegations, we are not only reversing the presumption of innocence, but also would have to accept all allegations – whether of domestic abuse or of parental alienation.


There is a sense that there may be an implicit suggestion that there is something wrong with this systemic refusal to accept allegations as automatically fact. If that is so I disagree. That is the whole point of the system : to act as arbiter between two versions of the past in order to make sound decisions for the future.


If the complaint is that professionals are too ready to disbelieve allegations of abuse – that requires more thought. For we lawyers, on one level it is never our job to believe or disbelieve – that is the judge’s job. But, depending on who we are representing, it may be our role to think of all the reasons why a witness should be treated as reliable – or not. The corollary of the earlier point that false allegations are rare must be that judges do quite often accept allegations when made and make corresponding findings. But if judges are overly sceptical, that is likely to be manifested through case management – by diverting a case away from a fact finding at all. Which is of course one of the complaints often made, and backed up by such statistics as are available about the rate of fact finding hearings. And of course, if Cafcass officers also have a tendency in the same direction, their guidance to the court will be influential in nudging the court away form a fact finding hearing and away from proper scrutiny of domestic abuse allegations.


The report says :


Mothers and professionals and organisations supporting them perceived that the default position of many of the professionals, including children’s social care, Cafcass/Cymru and the courts in child arrangements proceedings, was to treat allegations with a high level of suspicion. Many of the mothers told the panel that it felt to them that they were being accused of lying. Allegations of child sexual abuse raised particular issues relating to suspicion and perceptions of disbelief.


The uncomfortable truth is that the necessary exploration and testing of allegations of abusive behaviour is difficult for victims. We can make it less difficult, but we can’t take away all the discomfort and we can’t abandon the exploration altogether. We cannot run a justice system on the basis of #webelieve. And nor can we protect children on that basis. We must respectfully, sensitively and carefully test the evidence and make good welfare decisions from a solid factual foundation. One of the reasons that The Transparency Project wrote our domestic abuse guidance note was to try and make the process of assessing allegations less dissonant for victims*, by managing their expectations. My sense is that the message that a victim is entitled to be believed without question can be unhelpful for victims when they find themselves thrust into a process that does not and cannot operate on this basis. We do victims a disservice in not preparing them for the challenges that a forensic process will unfortunately bring. That doesn’t mean we can’t work harder to make it less difficult, but we shouldn’t whitewash it. That is not fair – it is often left to lawyers (sometimes counsel at court, far too late in the process to be helpful) to explain the reality of the process to frightened clients. No wonder then that they report that their lawyer told them not to pursue the allegations. I am as supportive as I can be to clients who I am explaining the process and possible outcomes to, but it is my job to give them realistic expectations so that they can make their own informed decisions about how best to proceed – and I am frequently frustrated that they have not been given an explanation earlier in the process. My explanations are often a real shock – as is my explanation that there is a possibility that their evidence won’t be accepted, which is often interpreted as ‘you don’t believe me’. These are not conversations (about how lawyers, evidence and trials work) that victims of abuse should be having for the first time at court (or even in a conference a few days before a hearing).


*(I could say complainants but I am focusing here on the experience of those complainants who are truly victims)





The submissions of professionals supporting abused women emphasised that staying with an abuser should not be considered as evidence that abuse did not happen, but in reality some professionals also perceived this to be the case. Again, the evidence submitted to the panel suggests that a better understanding of the dynamics of domestic abuse and the decisions victims make to try to protect their children is needed.


It is astonishing – and really worrying – that some professionals don’t understand why people stay in abusive relationships. I thought, mistakenly it appears, that this was domestic abuse 101. Who are the professionals who still don’t understand this? I knew that there were gaps in the understanding of many as to how domestic abuse, and particularly coercive control, works. I knew that there were weaknesses in professional appreciation of things like the escalation in risk after separation. I know that there are gaps in my own knowledge. But the idea that there are professionals in the system who don’t get that its really difficult to leave, and that the fact of their staying doesn’t mean it can’t have been that bad – that’s awful.





Entirely unsurprisingly, problems with police disclosure were a big issue.


The report tells us that,


Professionals in different systems have divergent views as to the obstacles to information sharing. In judicial submissions to the panel it was noted that the length of time it takes to obtain disclosure from the police can add delay to a case and courts do not have the resources to regularly review files and chase outstanding disclosure between hearings. It may well be that this is a resource issue for both the criminal and family justice systems, as well as an issue relating to the themes of pro-contact culture and silo working.


For me this is basically a resource issue – and although the report talks a lot about silo working my observation is that the Family Court works pretty hard to obtain and incorporate police information and material from criminal proceedings – but is often not assisted by the agencies who are asked to provide it (mainly the relevant police force). I don’t think the problem is the Family Court not seeing the relevance of police disclosure. Any lawyer or judge will tell you that more often than not orders for police disclosure are just ignored, deadlines pass without so much as a request for an extension because the police are just too busy and its not their top priority. Some forces do write to the courts, usually telling the Family Court they can’t possibly comply rather than actually requesting an extension. And increasingly during covid, Family Court judges are in my experience very reluctant to get all shirty with the police and order attendance to explain non-compliance with an order. Even before covid-19 I have been trying to run cases about domestic abuse or suspected non-accidental injury where the police were failing to give full or any disclosure for upwards of six months (don’t forget care proceeding are supposed to be entirely concluded within that sort of time frame).


The second problem is that in private law proceedings, nobody has yet devised a system for sorting out police disclosure where the parties are unrepresented (as they very often are). Leaving it to the parties is hopeless – they will argue over splitting the fees, fail to make contact with the disclosure unit to serve the order, won’t have the facilities to securely share disclosure once received…Directing disclosure directly to the court is also problematic because in reality nobody has time to look at the file between hearings. Invariably the case will come back in for the next hearing with a raft of directions (that were based on the assumption that police disclosure would have been received) not complied with, and more often than not with an unshared letter from the police saying ‘oops sorry we need another x months’ or ‘oops we can’t comply because the parties haven’t paid the fee’ on the court file – or if you are lucky with police disclosure in but not sent out to the parties. And of course, as any lawyer will tell you, what comes in purporting to be full disclosure is very often, on a moment’s scrutiny, simply incomplete. Body worn video? Never provided without specific, repeat orders. Notebooks? Likewise. Interview recordings? Often not provided. Logs? Often not provided or incomplete or redacted to hell.


I know there are some moves to try and work with the police so that they stop charging unaffordable fees for disclosure, and I hope those are progressed swiftly – but the other issue that needs to be sorted out is enforcement. I sympathise with police forces who are under immense pressure themselves, but this is an important part of their function within a multi-agency child protection system – and if the police think that compliance with family court orders is optional then we have a big problem.





The authors of the report are rightly critical of form C1A and of the way in which schedules are often limited to a maximum number of ‘incidents’, which makes it very difficult to properly capture coercive and controlling behaviour. They say :


The form contains five boxes requesting a short description of what happened, indicating (approximately) when the behaviour started and how long it continued and space on the form is limited. Whether this fairly captures the lived experiences of victims of abuse was raised as an issue in submissions. This overlaps with concerns mentioned about Scott Schedules … reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse.


I’ve written before about form C1A, and in particular the tendency for it not to make it to CAFCASS before they complete safeguarding interviews (of which more below), and about schedules of allegations. I won’t repeat that here. Here are the links :


C1A :

Limitations on Schedules (amongst other things) :




Another issue that was consistently raised in submissions was the short amount of time that was given to obtaining an account of abuse in the Cafcass/Cymru safeguarding interview. Mothers’ submissions reported only having half an hour to talk to a complete stranger and being expected to give an account of abuse without having any support available in that process. Interviews sometimes took place over the telephone rather than face to face and victims of abuse found that approach was not conducive to giving a full account of their experiences and those of their children.

In one of the focus groups, mothers told of the difficulties they faced in being asked to ‘pull examples out of the air’ and in disclosing their fears and feelings without a familiar and trusted person to support them. They spoke of the approach being insensitive, inadequate and unethical. This perspective was backed up by some of the professionals working in the family justice system. For example, one of the judges at the judicial roundtable said that litigants do not necessarily want to tell Cafcass about the abuse over the phone as it is often serious and distressing experiences that they are required to talk about. Consequently, it comes out at court rather than in the paperwork.


I agree with all of this. Cold calling parents and expecting them to reel off a summary of abuse or safeguarding issues to a stranger in a short phone call is not a great way to get a good sense of what the safeguarding issues may be. Moreover, it creates a scenario where lawyers like me inevitably want to explore the inconsistency in accounts when a certain allegation wasn’t raised in the safeguarding interview.


I note also with alarm the apparently Covid-related practice in some areas of Cafcass not even bothering with a phone call – and simply sending a parent a written questionnaire asking a series of 9 questions that they are expected to fill in and send back. The numerous problems with this approach are, I hope, too obvious to need enumeration. Although not so obvious that they have prevented the practice emerging. I hope it is only temporary. It does not suggest that Cafcass has fully absorbed the criticism of its pre-Covid practice that this has been permitted at all.





The report rightly flags that the expectation of conciliation even where there has been abuse is problematic, particularly given that we know that C1As don’t always reach Cafcass and that safeguarding checks are often outstanding at the FHDRA stage. Personally, I don’t like the blurring of safeguarding interview and conciliation role that I think is risked here.


The report says,


Given that conciliation and mediation are usually considered – and para 9 of PD12J falls to be implemented – at the first hearing before allegations of domestic abuse have been determined, the court should take a precautionary approach unless there is positive evidence that alleged abuse has been acknowledged and addressed and that parties are able to speak and negotiate freely on their own behalf.


I agree. I also note that where conciliation is not appropriate or not attempted at a FHDRA i.e. in most domestic abuse cases, there should be no barrier to legal bloggers or journalists could not attend to observe how the hearing is conducted, including how PD12J is implemented (conciliation hearings are excluded from the list of hearings that journalists and legal bloggers may attend as of right and so far this has prevented the Transparency Project from observing much in the way of FHDRA lists – without justification, in my view).





The report authors say :


However, despite the very clear difference between ‘high conflict’ relationships and domestic abuse, victims and professionals told the panel that they had experiences of domestic abuse being reframed into evidence of a ‘high conflict’ or mutually abusive relationship, for which the solution was considered to be mutual reduction of conflict and encouragement of cooperation rather than protection of the child and adult victim from the other parent’s abuse. As some of the victims feared, and were legally advised, raising any concerns about contact with an abusive partner, was perceived as evidence of hostility to co-parenting.


For my part, having worked with many parents over many years – I’m not sure that it IS always easy to tell which you are dealing with in practice. I wrote last year about the fact that the behaviour of the parties in a litigation context may make generate conflict and mutually controlling behaviour (which might or might not mask an underlying abusive dynamic).


I don’t doubt that abuse is often mis-described as high conflict – and that in doing so real and harmful abuse is minimised. That has been the general approach of governments through the years, who always seem to suggest that conflict is borne of mutual immaturity and animosity after the failure of a relationship, and that parents who can’t agree on arrangements just need their heads banging together. It isn’t always that simple. I’ve seen Cafcass reports which do seem intent on describing the situation as the mutual fault of both parents, and on the emotional harm that the parents inability or refusal to co-parent is causing. Those are frustrating – although they often relate to cases where there is no dispute that there is and should be ongoing contact, albeit that issues continue to arise. There is probably a real question to be explored here about how things can be structured in these sorts of cases to be both workable and physically / emotionally safe once the court has dropped out – I’m not sure there is a consensus on what co-parenting should look like here, or even whether it should be encouraged. I think that is a discussion we need to have. It is one thing for a victim of abuse to be arguing for no contact or highly restricted supervised contact, but in fact many mothers do want their kids to have a relationship with their fathers, but there are limited community structures to make that happen – and extended family are only sometimes able to offer a solution.





This sticks out for me.


The panel received a number of submissions from individual lawyers about their experiences in child contact cases. Some of these submissions indicated that lawyers have advised their clients not to raise domestic abuse because it would ‘anger’ the courts or be ‘counter-productive’. This evidence suggests that some lawyers do encourage their clients towards settlement in such a way that minimises or dismisses domestic abuse. For example one lawyer who made a submission to the panel said: ‘Victims are often persuaded by their lawyers not to mention abuse, being told the courts don’t like it and it will harm their case. If it is raised, victims are often told by the courts that it’s ‘all in the past’ or, in one case I had been ‘too confrontational’, or that it’s not relevant.


WHO has been bothered enough about this issue to submit evidence to the panel telling how they have advised their clients not to raise d.a. because it will ANGER the court?? Who is doing that? Whoever they are they should not be doing this work. If the panel tell us they received this submission I have to accept it was made, but I’m frankly shocked.


Equally, if anyone is giving their clients generic information that courts don’t like the mention of domestic abuse or that the mere mention of it will harm their case they should go and find a new job.


I agree with the lawyer who is quoted where s/he says that victims are often told allegations are ‘in the past’ or that it’s ‘not relevant’. These are known problems that it is no surprise to see featuring in this report. If advocates are still being told off for pressing these issues (whether by being told they are being ‘too confrontational’ or in some other way), then I hope there will be more appeals.


But let me tell you what my practice is, and I think the practice of most other half decent family barristers. In some cases I have advised a client that pursuing domestic abuse findings might be counterproductive – which is not the same as trying to frighten a client by telling them about ‘angry’ (male) judges. Because it’s my job to help them understand the process they will have to go through, and what may unfold if they make this decision or that. My clients are not children. They have to be empowered to make the choices that are right for them. They are entitled to know that they will be cross examined, that my professional assessment is that the evidence they are presenting is really weak, and if I think that they are highly likely to end up with no findings and LESS able to protect their children than if their credibility is preserved (I’m thinking here of the sort of case where a mother makes repeated, highly improbable allegations without cogent supporting evidence, perhaps where she has already been unable to prove earlier allegations – and where if the latest round of allegations are also unproved she is at risk of losing primary care). These are difficult conversations to have, and the last thing I want to do is frighten a client out of their wits. But it is my job to advise them. In my experience, most such clients will pursue those allegations anyway, but at least they do so with their eyes open. Such conversations are neither necessary nor appropriate in less clear cut cases.


What I don’t do is ‘persuade’ my client not to raise an issue that they feel in conscience they need to make to protect their children. I advise them of the risks, I try to reassure them about how we can make the process as manageable as possible, and then I support them in their decision whatever it is. It is fair to say that some clients, particularly those whose confidence in their own decision making has been undermined by years of abuse find this difficult. They may feel pressurised by what they are being told. But we cannot ethically keep them in the dark. It is also fair to say that the way in which a judge conducts him/herself can make a big difference to whether a victim feels able to pursue allegations of abuse. I can think of one case where a very stern s98 warning and clear statement of intention to make a perjury referral if the allegations were found to be fabricated from the judge case managing a proposed fact finding hearing was swiftly followed by the client deciding not to pursue very serious allegations. Great care is needed to ensure that potential victims are able to pursue relevant allegations and to engage with the process.


This passage is also striking. Note the choice of language.


The panel was told that perpetrators were sometimes allowed to raise counter allegations of parental alienation and that these were taken seriously, even when there was little or no supporting evidence. There was a perception that there is a lower threshold for raising allegations of parental alienation than there is for raising domestic abuse or child sexual abuse. As a matter of law, the burden of proof is on the person raising allegations and the standard of proof is the same regardless of the nature of the allegations or who makes them, but submissions indicated that victims did not perceive this to be the case in practice.


Is the implication that perpetrators (alleged perpetrators?) should not be allowed to raise allegations? Any allegation should be taken seriously, whether of abuse or alienation. It is in the nature of both sorts of allegation that there is little supporting evidence. I have been involved in cases where domestic abuse is not taken seriously and in cases where allegations of alienation has not been taken seriously. My firm view is that where these issues are raised the court often cannot fairly decide one without considering the alternative scenario – is the child refusing contact because of their experience of abuse or because of alienation in the context of false allegations of abuse? It can’t be both.


The problem is when the court attempts to deal with allegations of alienation having decided not to hold a fact finding hearing, or where allegations of abuse are floating around but not being actively pursued or grappled with. That places the court and the victim of abuse in a catch 22 situation : any refusal of contact cannot be justified by domestic abuse because it hasn’t been litigated / proved and thus as a matter of law did not happen. The court dealing with allegations of alienation does need to properly scrutinise why it is the allegedly alienating parent is saying there is a problem. If they are saying there is a background of abuse then the court is probably going to have to look at those allegations of abuse even if it initially looked like a fact finding hearing could be avoided.


Here again, look at the language :


Some of the fathers’ submissions stated that allegations of domestic abuse were made up or exaggerated by mothers who were trying to alienate their children from them and frustrate contact. They felt that the courts were not sufficiently robust in investigating allegations of domestic abuse which they said were untrue or exaggerated.


The report uses the terms victim and perpetrator regularly throughout the report, even when discussing the process prior to findings being made. This language assumes that allegations when made are factually accurate – that an alleged perpetrator is in fact a perpetrator, and an alleged victim is a victim. In the above passage father’s submissions are described as subjective accounts ‘father’s stated’ ‘said’ and ‘felt’. In the context of what I’ve said earlier about the essential need for a forensic process that is fair to all, this leaves me uncomfortable.





I noticed also that the pendulum seems to be swinging back again in respect of this old chestnut – the review hearing.


Now the review panel complain that ‘reviews of child arrangements appear uncommon, even in domestic abuse cases. This is despite all the research that indicates that spending time with an abusive parent can result in the continuing abuse of children and/or their non-abusive parent.’


This is not a surprise. It is judicial policy : When CAP was brought in we were told to stop fixing reviews, to discourage parental dependence on court process, to make stepped final orders early doors and shoo them out into the big wide world. We know that has not always worked as well as we’d hoped and has resulted in a revolving door in some cases. There is probably a happy medium here – reviews will be helpful and appropriate in some cases but not all.





I was surprised to read that guardians are appointed in only 7% of cases in 2018-19. Perhaps this is an illustration of the fact that someone at my level of call (18 years) has a caseload at the more complex end – I would say about half of my private law cases involve a guardian. A reminder that I need to be wary to equate what I see with what is more broadly typical.




Multiple submissions referred to the resource constraints that limited the involvement of Cafcass or Cafcass Cymru, in terms of how many children were seen, for how long and the lack of reviews after orders were made. They noted that Cafcass and Cafcass Cymru are usually only involved at the initial safeguarding stage where they do not meet or speak with children. Lawyers also raised concerns that so few children are separately represented. A LIP support service noted that courts would not appoint guardians unless they were specifically asked to do so, and LIPs had no idea they could make such a request.


I have to say that, following the guidance, I often ask for a guardian early on in proceedings and courts are often reluctant to grant my request. It is quite challenging to fit a case within the framework of PD16A until it is frankly too late to be useful. I think that the ability of courts to deal properly and robustly with cases would be significantly enhanced if guardians were more routinely appointed, but resource constraints make that seem highly unlikely. As the report says Cafcass officers are under significant pressure already and often do not see children as often or for as long as would be optimal. They either do not have time or are told they must not make more than a bare minimum of visits (proportionate working is still alive and kicking). In these circumstances is it any wonder that children and parents are reporting that Cafcass are not really getting a handle on their wishes and experiences or that they are not being heard? One interview does not equate to a relationship of trust and an open dialogue.


The report writers were unable to source any data on how often children are giving evidence or meeting judges. I’d say in private law cases (even that subsection that I see) both are relatively infrequent, though in my experience if children ask to meet the judge this is usually made to happen.


The report tells us that:


Cafcass has developed a number of digital apps for working with children and families, including Voice of the Child. This Much! and Backdrop are two other apps available to Cafcass officers for direct work with children. These have been rated as ‘outstanding’ by Ofsted, but none of the apps were mentioned in any of the submissions to the panel.


I’d say there’s a reason they weren’t mentioned : because they aren’t being used. I’ve never heard them referred to in my cases (although I have seen reports with childrens’ worksheets in them – I’m not clear to what extent these apps are simply a digital version of such worksheets).


The passages about childrens’ interviews are concerning but in some respects difficult to make sense of. For example :


Parents, too, gave accounts of children being too frightened to speak, especially in the presence of or in close proximity to the abusive parent, and reported that their children had found the interview process traumatic. The PSU submitted that Cafcass interviews exposed children to the risk of further abuse and invited them to relive previous trauma without specialist support. In addition, some mothers criticised what they perceived to be Cafcass’s generic approach of exploring children’s feelings indirectly through play, even when children were old enough to be asked and to answer direct questions.

This account was far from an isolated instance in the submissions, including submissions from child victims of domestic abuse, and is consistent with research findings that Cafcass officers can make considerable efforts to persuade children to spend time with a parent, or to increase the amount of time they are already spending with them.


The result, however, is that children’s experience of abuse can be ignored, dismissed or minimised.


I don’t quite understand the basis on which the PSU are able to comment on the interview process used by CAFCASS, and they are presumably reporting accounts given to them by resident parents at court. It is almost always the case that children are interviewed away from their parents, often at school or a Cafcass office rather than at home – precisely in order to avoid the sorts of difficulties outlined. There seems to be both criticism of Cafcass for asking direct questions (which might be traumatic) and for not doing so. What does come through clearly though is that a number of children were telling the panel that their experience was of Cafcass putting pressure on them to agree to contact. Whilst it is right that Cafcass officers explore why a child is refusing or expressing reluctance to have contact (because sometimes it is a result of coaching or other influence of the resident parent), it is self evident (or ought to be) that one understandable reason for reluctance is that the child has experienced domestic abuse – in which case their expressed wishes need to be afforded respect.


Whilst the FJYPB contains some impressive young people, some of whom I’ve met, I’m not convinced that it can ever be truly representative of the children whose cases are decided by the Family Court. However, this is important :


…research and the evidence of the Cafcass FJYPB focus group does suggest that children want to be consulted, and that their voices should not be dismissed as simply reflecting the views of their resident parent. A common response in the call for evidence was to highlight the need for skilled assessments that start with an open mind, rather than a fixed hypothesis of what is going on which may lead to entirely inappropriate conclusions. That skilled assessment should assess all the circumstances of an individual case to help the court to determine what is in the best welfare interests of the child, but this obviously has resource implications.


Somehow we need to find more time and space for Cafcass officers to build relationships with children and to form more nuanced and detailed understandings of their views and their experiences.




We are told that organisations including Barnardos, Safelives, Women’s Aid Federation of England and Welsh Women’s Aid noted that the court process, particularly in the preparation of Section 7 reports, failed to draw upon the expertise of their specialist children’s services staff who knew the family.


I think that this criticism may well be justified. I have often seen cases where the refuge or other agencies could probably provide helpful information that is not before the court – BUT there does need to be proper forensic scrutiny of such material, because of the way such services work – there are cases where the therapeutic work carried out by such agencies on the acceptance of allegations as truth can contaminate and develop the evidence in ways that actually make it harder to secure a finding (for example refuge workers asking repeated leading questions for therapeutic or evidential purposes). These forensic issues are a bit of a minefield for both the workers in question and for parents and judges dealing with the resulting records.


This passage highlights the forensic issues well I think :


Others noted that professionals were too ready to see signs of alienation, and so silencing children, rather than assessing further what the child may have witnessed or experienced. This was particularly evident where allegations of sexual abuse had been raised.


In cases where children have disclosed sexual abuse or displayed behaviour that might indicate sexual abuse by their father, there is very little focus on capturing children’s voices in family court proceedings. The primary focus seems to be on the parents, with often intense scrutiny of mother’s motivation for making allegations of sexual abuse. In cases we are aware of: Children have made clear, sometimes graphic, disclosures of sexual abuse to professionals and/or to parents and carers, but despite this, the Judge has ruled that the sexual abuse did not happen. CARA


This seems to be pretty clear evidence of the phenomenon whereby agencies accept and adopt allegations made (here referred to tellingly as ‘disclosures’), and do not accept the findings of a court following a trial. Many agencies work on this model – they understandably accept the self report of their clients and provide services accordingly. But problems arise when they are unwilling to accept the outcome of the forensic process, particularly where their influence on the child or adult continues to promote a refusal to accept the findings the court has made. Of course courts do get things wrong – but a parent who doesn’t accept findings either has to appeal them or accept that the court will go forward on a different basis. It’s really difficult, but that is the system. Although I accept the broad systemic issues raised by those who contributed to the report, I wonder how many of the accounts that were given were from this sort of scenario – still asserting that terrible abuse happened and that the court is ignoring it – even though that court has meticulously considered all the evidence and decided it didn’t occur?


The quote shows an agency apparently not accepting findings post trial – but consider the impact such agencies can have on the forensic value of a child’s account if they treat allegations as disclosures from the off – in cases I have worked on such mindsets have actively led to a court being unable to make findings – how does that protect a child?





Following on from the above:


The most commonly cited reason for why children’s voices go unheard in domestic abuse cases is the ‘pro-contact culture’. Two specific factors were raised repeatedly in submissions: the idea that the court already knew what children needed and allegations of parental alienation. Both meant that children’s wishes and feelings were not elicited or were heard only if they expressed a wish for contact.


Notice the use of the term pro-contact here – the more contentious phrase ‘contact at all costs’ is often used elsewhere but does not appear in this report (except in one citation). For my part I agree there is a pro-contact culture, and I accept that does translate on occasion to contact orders being made that are inappropriate – but I’ve always struggled with the term ‘contact at all costs’, which I don’t think properly captures what is going on. Rights of Women told the panel that


We are informed [by service users] of Cafcass officers making recommendations for unsupervised contact with a perpetrator of abuse that they are unwilling to sit in a room with because they present a risk to the Cafcass officer.


My personal experience of cases where LA social workers or Cafcass officers will only interview a parent double handed are mainly in care cases where contact is supervised. I can’t think of any where that level of professional concern has been apparent and there has been any plan for unsupervised contact – but I have no reason to doubt what the clients of RoW are reporting. It’s difficult to get any sense of how often this sort of thing is happening or what the context in those cases really is. I suppose that in the individual case a careful risk assessment might demonstrate the risk to professionals is high whereas the risk to the other parent or the child is low, but it does seem inconsistent.


Interestingly, fathers’ groups (apart from Mankind) made similar generalisations about what children want and need, and preferred that children were not directly consulted. The reason behind this stance is concern about alienation. See here :


‘Parental alienation’ is based on an idea that children’s wishes and feelings have been influenced by the ‘alienating’ parent, and therefore should be discounted. Multiple submissions argued that the increasing use of the term ‘parental alienation’ could silence children. If children have been alienated, then their wishes and feelings are seen as contaminated. Submissions also observed that an allegation of ‘parental alienation’ meant that the parent who is the subject of the allegation will be treated as an ‘alienator’, rather than as a protective parent with well-founded fears around abduction or violence. This potentially leaves children who have experienced domestic abuse in a very vulnerable position, unless there is some ‘objective’ evidence of the abuse or an independent agency with influence.


A number of submissions raised concerns about professionals jumping to a conclusion that a child refusing to spend time with an abusive parent had been alienated, rather than considering the refusal to be a result of an abusive parent’s behaviour.


In very simplified terms there are two counter-factuals here. Either a child has been subjected to domestic abuse (directly or by exposure) and their wishes may be affected by those experiences. OR a child has not been subjected to the alleged domestic abuse and their expressed wishes and feelings may not represent either their true wishes, or may be the product of a deliberate or inadvertent negative influence from a parent who has made false allegations against the other. In the former those wishes and feelings ought probably to be given proper weight. In the latter, perhaps not so much. But before you can work out which is which you have to determine the facts. There should be no jumping to conclusions before a fact finding hearing. And if necessary a fact finding hearing will need to determine both allegations of abuse and allegations of alienation. It can rarely be both, though the mere presence of ANY abusive behaviour does not justify the child being exposed to a wholly hostile approach towards the other parent, and nor can it automatically mean no contact.


The problem here for me is that in many cases an early decision is taken (or has historically been taken perhaps) that no fact-finding hearing is needed – the allegations are minor, historic, the principle of contact is agreed, everyone wants to avoid delay expense and stress – whatever. And THEN allegations of alienation are made when things grind to a halt. In those circumstances the court may have to reconsider the question of whether findings on the abuse are required, in order to fairly work out how to respond to allegations of alienation. I think that many resident parents (often mothers) find themselves in a catch 22 situation when, having not pursued or been told they can’t pursue findings, they are told they are alienators – and the fatuous assertion is made that the allegations aren’t true because the court works on a binary system. If allegations which have been put to be later become relevant, the court may have to think again in order to avoid unfairness.


But the issues around ‘pro-contact’ culture are not just about the way the court deals with allegations of alienation – the family court is often criticised for being TOO pro-contact generally, not just as a result of minimising domestic abuse and not just as a result of too readily accepting allegations of alienation and push push pushing the reluctant child or resident parent to allow contact that may be risky or harmful. I’m not sure that in all its 200+ pages the report really interrogates whether or not there is a problem with being pro-contact per se.


There is some consideration of whether or not the presumption of parental contact has somehow led to an even greater emphasis on father’s rights (I don’t think it has, the report writers think otherwise) :


Overall, the evidence received by the panel suggests that the presumption is implemented inconsistently and is rarely disapplied. To the extent that the courts’ pro-contact culture operates as a barrier to addressing domestic abuse, it serves to reinforce that culture.


My question here is – what are the lawyers doing in these cases? I’ve never heard it referred to in legal submissions – and if it were I’d immediately flag to the court that it is easily rebutted by the mere making of an allegation and that its only a presumption of some contact – not even necessarily direct. It’s that easy to neutralise such allegations. Perhaps its deployed by litigants in person in cases where there are no lawyers, but even then a brief glance at the presumption as drafted by the judge should have a similar effect.


However, whilst the presumption is touched on as above, the tenor of much public debate in this area, including that which led to this review being launched, implies that the promotion of contact is objectionable in ALL cases involving domestic abuse – even perhaps that it is objectionable in all cases involving allegations of domestic abuse. That debate is not necessarily within the remit of the review group but I think it’s a debate we need to have. I don’t buy into the simplistic ideas such as : abuse that is ‘historic’ is irrelevant, or that non physical abuse is less serious – that tend to lead us towards minimising abuse, but I also know that there is such a vast spectrum of behaviour and experience in the cases that come before the family court, and that each needs its own tailored solution. For example many children who have been exposed to domestically abusive behaviour by one or both parents will have continued or gone on to have regular and valuable contact with the abusive parent for substantial periods – they will have established relationships – and so when the family court comes to evaluate contact it does not do so in a vacuum. Many children who have experienced abuse will reject contact, but others will actively want and need to continue a relationship with their flawed parent – that might not ultimately be safe or possible, but it does need to be considered? For some children a safely managed relationship with their other parent can build understanding of their parent’s failings, which can be important for identity and can help them to self-protect as adolescents and adults where children without any first hand knowledge of a parent can place them selves at risk when seeking out an idealised parent.


So, individualised solutions – proper consideration of the experience of the parent and child who have experienced abuse, the ongoing risks, and the potential advantages – with better awareness of when we may be minimising or muting, and without either a dogma that there should be no contact or that there must be contact? I don’t think that should be controversial but I think perhaps it is.





Concerns about resource constraints were particularly prominent in this regard. Judicial and practitioner respondents were unanimous in agreeing that resource constraints are a major impediment to the effective implementation of PD12J, including the inability to provide judicial continuity, and the large number of LIPs now appearing in private law children cases. Individual respondents also commented on courts having too little time for each case, just processing cases without engaging with the parties, insufficient time being allocated for hearings, judges and magistrates not having read documents filed before hearings, and difficulties of communication between the court and litigants. The evidence also showed how the court’s pro-contact culture, the adversarial process of fact-finding and the silo working of the family courts operate to limit the effectiveness of PD12J. Unless the problem of insufficient resources and the other underlying barriers are addressed, they will continue to have an adverse effect on the implementation of the Practice Direction.


I have nothing to say here but to agree! The family court can be pro-contact by the way, without making contact orders at a time when potentially serious allegations of domestic abuse are outstanding, and PD12J is right about that – the way to minimise the risk of children being harmed as a result of the cessation of contact where allegations later turn out to be false is to get fact finding hearings ordered early and heard promptly. Little hope of that in the current climate I suppose, but as a matter of principle that must be the right approach. You don’t know contact is safe until you know if the allegations are true.


The key theme of submissions was that there are serious shortcomings in the implementation of PD12J. Respondents perceive there to be a substantial gap between the ‘law in the books’ of the Practice Direction and the ‘law in action’ of how it operates on the ground.


I agree this gap is a big problem in some cases – as evidenced in the Sussex study last year even if it’s less visible in my own caseload. My observation of some Magistrates court hearings recently was encouraging, but it’s such a small number that it obviously isn’t necessarily representative.


Individual and some professional respondents identified a lack of awareness or familiarity with PD12J on the part of some Magistrates, Cafcass officers and local authority social workers in particular.


It is alarming to think that there are STILL Magistrates, Cafcass officers and LA Social workers who don’t know about PD12J. Where have they been burying their heads?


However we then get this :


Concerns about the non-application of PD12J appeared to relate less to lack of judicial or professional awareness and more to the respondent’s perception that the court had ignored, refused to listen to or dismissed allegations of domestic abuse they had raised, and refused to order a fact-finding hearing.


Mothers in one of the focus groups said they had been told by their lawyers that their abusers would be granted contact and there was nothing they could do about it.


I think what is important here is that this is about perceptions of parents about what their lawyers are saying or doing on their behalves. Lawyers do have a responsibility to advise their clients about the likely steps the court will take. It IS likely in many cases that notwithstanding domestic abuse some contact will be granted. It would be unfair and irresponsible to suggest to a client that they can expect to resist all contact if that is very unlikely. That does not mean that a lawyer should not then pursue all proper arguments as to why contact shouldn’t be ordered – and no doubt this report will be helpful in articulating and emphasising some of those arguments where the judge or magistrates don’t seem to get it – but a lawyer’s job in private is to advise on likelihood of success. Personally, reflecting over the years on how our advice is interpreted, I try really hard to explain that distinction in role – between what I advise you the risks are in private and the hard work and creativity I put in to achieve the outcome a client seeks to secure once that advice has been given and a decision has been made by the client as to their position. But what I can’t do is not give that advice.


Right. That’s Part 2. When you have had a lie down in a dark room, recovered and replenished your tea and biscuits here is Part 3.

That harms report – Part 1

I’ve been chewing this one over for a while before commenting. Because it’s important. And because the report says some very uncomfortable things for family justice professionals, things that deserve and demand proper consideration. And because the report is a whopper, with so much to digest. So here goes. My take on the Spotlight report (Full title : Assessing risk of harm to children and parents in private law children cases).

Two things to say by way of preamble. Firstly, as chair of the Transparency Project I called for a review of the family courts’ handling of domestic abuse before this review was announced. It was necessary and important. Secondly, I raised concern about the set up of this review, wondering if it could ever hope to achieve its objectives through the gathering of unverified anecdotal evidence – large volumes of anecdotal evidence are still anecdotal even where they are gathered in bulk. Whilst we shouldn’t discount the voices of those impacted by the process we are scrutinising, we would be unwise to accept them all at face value without scrutiny.

But anecdotal evidence is not without value. Firstly, because it tells us about the experience of those subjected to a process, and secondly because it may lead us towards patterns that can be subsequently objectively verified through research. This review has not conducted its own research or attempted objective verification (that is not a criticism of the review team, it is just how the review was set up), but they have gathered a significant body of anecdotal evidence which is strongly suggesting some patterns some problems. And those are things all of us need to reflect seriously upon – even where the emergent patterns do not match our own direct experience.


It’s unsurprising that some things chime in with my experience, and also that some things really don’t. I expected from the outset that many of the individual accounts that would emerge through the review would be of behaviour and experiences I might struggle to match with what I see in practice (or have seen over my 18 years of work in the field), and that some might present an inadvertently distorted picture of what was really happening. We lawyers are used to advising our clients in very careful terms, only to hear that advice reported back to others in ways that are barely recognisable (my lawyer told me to do [insert improbable advice here]). Lawyers are also used to hearing apparently genuine and persuasive witnesses describe the same events in wholly incompatible terms : people hear and see what they want to, they persuade themselves unknowingly of what happened (in their relationship, in conference, in court), subconsciously adjusting memories as time passes and perspective changes. This is why we must be cautious of anecdotal accounts from one party involved in a multi-party process, especially one where the subject matter is highly emotive and traumatic, and where almost inevitably around half of the participants will come out the other end feeling like the process has reached the wrong answer.


And so we lawyers instinctively ask, if the Respondent says X happened : what does the Respondent’s lawyer say happened, what does the Applicant or their lawyer recall, what does the judge say – and what do the lawyer’s notes, the judgment, the court file or the audio recording of the hearing show? We have none of that here, just collections of accounts of negative experiences (because unsurprisingly most respondents to the review were clearly motivated to submit evidence as a result of negative experiences), disassociated from any alternative perspectives or from the contemporaneous records. They are highly consistent, which does add weight – but that consistency might arise from a number of factors, separate or combined.


And in broad terms we knew what those responses would say before they were even submitted. We know this because the reason the review was commissioned was that people have been making the same serious complaints for years. And because we could also see campaigning organisations (predominantly womens’ rights and domestic abuse organisations, but also to a lesser extent fathers’ rights organisations) marshalling their forces, encouraging their members to respond, reminding them what sort of evidence to submit, providing templates in order to make their collective point effectively. The submissions do need to be seen against that backdrop of a highly co-ordinated and persistent campaign to make precisely the point that the review has now made : in short, that the family court is pretty poor at dealing with domestic abuse.


But whilst this all raises some pretty big forensic questions, it doesn’t necessarily mean that the point is not well made. It seems unlikely that all these accounts are inaccurate, that there is no fire from which this huge smoke cloud is emanating. Even I, the handmaid of the system, am able to see the system is pretty poor at dealing with domestic abuse.


It’s worth noting too that the authors of the report themselves do confront and reflect on these limitations and they give, to my mind, a strong account of the high levels of consistency between the accounts received and of their reliance upon them. I don’t think this consistency can all be put down to the farming of accounts by campaigning organisations, particularly since those accounts appear in some aspects to be consistent with the worrying displays of poor appreciation of the complexity and working of domestic abuse apparent from the submissions of some professionals. And whilst I don’t recognise it all, some of what is complained of is far too easy to believe when I compare it to what I do see and hear on occasion. Nor can it be fairly said (as predictably it is) that this line is just coming from bitter mothers whose attempts to use false allegations to thwart contact had been rejected by the court – it is also coming from the mouths of professionals, on some occasions unwittingly exposing their own poor practice.


If the family justice system were the respondent to allegations at a fact finding hearing, it would have the benefit of the doubt (the burden of proof would be on those who accuse it of abusive behaviour towards victims). But there are good reasons why the Family Court adopts a flexible approach to evidence in ways that other courts do no – it does admit hearsay evidence, and, as we have recently been reminded by the case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, propensity / similar fact evidence can be relevant and admissible. Just as it is in the way of domestic abuse that there is rarely contemporaneous, independent evidence, making it quite tricky to prove abuse that takes place in private and leaves no visible bruises – so it is for victims of a poorly functioning justice system, where interactions also take place in private and where complaints may be assumed to be the result of sour grapes or discounted when made against a respectable, well-meaning institution.


Except of course, whilst it is very difficult for the victims of any system failure to produce direct contemporaneous evidence, in fact that evidence does exist – in the form of bundles, lawyers notes, court files, and court recordings. The system holds the answers to all this – though it holds them under lock and key because participants may not speak publicly of what took place nor access the records with ease. If we were running this trial of trials to the gold standard forensically, we’d track down these primary materials and test the testimony of those bringing allegations to see if it comes up to proof. When a litigant says the judge shouted, dismissed their allegations, failed to follow procedure – there is a way to check accuracy, to get to the bottom of whether experience narrated from memory matches with objective contemporaneous record.


But as is now becoming wearily familiar with everything in this justice system, we must make do with what we’ve got. Fairness and forensic rigour are all relative, moveable concepts (viz the shift from a firm view that a remote hearing could not be fair to the insistence only a few months later that it can – nothing has changed except what is possible).


And so, as with the advocate briefed just before at a fact finding hearing, who discovers that none of the potential primary material has been disclosed or placed in the bundle, we must just do the best we can with what we’ve got. Nobody is going to entertain an adjournment so we’d better crack on.


That’s part 1. In Part 2 I set out some specific observations I made as I read through the report, and thought about them in the context of my own direct experience. In due course in Part 3 I will round up with my conclusions.


GDP-ARgggghhhh! (The Legal Aid Agency’s guide to the GDPR)

headinhands by Alex Proimos on Flickr creative commons - thanks.

I know. A blog post in which the twin joys of legal aid and GDPR are combined in one glorious cluster of hideousness. I’m sorry. Two parallel universes collide and rip a hole in the fabric of reality, or at any rate in the carefully drawn timetable set by the judge.

What am I blithering on about?

So, the LAA have refreshed their guidance on all the essential stuff they won’t pay for. On the revamped list is a post-GDPR special : because GDPR saw the abolition of fees for Subject Access Requests the LAA will no longer be paying for fees charged by police forces arising from orders for police disclosure.

Say whut?

I know. I know that an order for police disclosure is NOT. A. SUBJECT. ACCESS. REQUEST. It’s an order of the court. It’s not a request. And its not made by the subject of the data. It covers more than the data relating to the single subject in question – it will typically cover at least two subjects (two adult parties to litigation, say two parents) – but will often cover third parties who may not be the subject of or party to litigation. They may be ex partners, neighbours, informants, children, extended family members who are the victims or perpetrators (alleged or actual) of abuse or criminal behaviour.

Here it is in all its wrongheaded glory :

(page 58 of the Civil Finance Electronic Handbook (issue 2.7 effective 26 Mar 19), attributed at page 69 as all the fault of the GDPR)

An order for police disclosure may cover material which will take the police many hours to collate, burn, transcribe or otherwise organise and for which they are quite justified in charging an administrative fee (although a number of people have told me in the last month or so that these charges have become wildly varied in recent years, with some forces apparently using this as a bit of a money making exercise and charging top whack for carrying out such work).

So, you might say this is just a mini-cash generator for the police and we should just switch to SARs and make do. But they won’t ‘do’ (at least in most cases they won’t). Anyone who has ever made a SAR or seen the product of one will know that the material produced will be incomplete and rendered practically useless by the level of redaction. If Mrs Smith (the alleged victim let’s say) made a SAR for all records relating to her she would receive everything about her but with all the information relating to Mr Smith, the alleged perpetrator of domestic abuse against her, blacked out or removed. She would receive potentially all sorts of information that wasn’t needed, for example about that time ten years ago when she was robbed at the supermarket. To get the information about the Mr Smith side of the equation he’d have to make a SAR – and his would be missing everything about Mrs Smith. Marrying the two sets of documents up would be impossible, time consuming and frankly pointless. Although a SAR now has to be complied with in 30 days, which is comparable to the sort of time usually given to the police to comply with a disclosure order (usually 28 days), the end product would be either useless or would generate unpaid work and cause built in delay before anything meaningful could be made of the information produced (even assuming there are any unpaid lawyers on board to do it). If we were to operate on that basis one organisation would be paying its staff to pointlessly redact stuff so that others could spend time piecing the jigsaw back together again. Like trying to glue the stuff in the bottom of the shredding machine back together. And even if you pieced it together again you’d find that the witness statement of the third party that is crucial to working out whether the data subject (your litigant) is telling the truth is not included. And you are not entitled to it. Excellent.

What’s more, if the hard pressed overworked and underfunded police have a bag full of court orders for police disclosure which attract a fee, and a bag full of SARs which don’t – which do you think they are going to prioritise?

And another thing (I know, I’m getting out of breath now), what if the subject doesn’t WANT to play ball because s/he knows that the information might in fact not be all that helpful to them? Can the court effectively compel a data subject to make a request? And then to disclose whatever comes back? And even if it can what should it do if the litigant sticks the preverbial two fingers up?

This does actually really matter. Because if the LAA won’t pay the fee, the solicitors won’t do the work of gathering the police disclosure because they can’t pay the fee. It means that cases will stall. Hearings will be wasted. Decisions for children will be delayed. Costs will be run up (including ironically, costs which will be paid by the LAA as everyone has to troop back to court to formulate plan B and generally bemoan the brokenness of everything … Steam will come out of many ears. Maybe in some cases the court will decide it must forge ahead with information that really is quite important. That’s a worry too.

And it’s worse, because the guidance is backdated and not everyone has yet spotted that this is a thing. So courts and solicitors are probably still happily drafting police disclosure orders and may later find that they have no way of claiming back the sometimes quite hefty fees charged by the police. That is a big problem for some firms who run on very very slender margins and cannot absorb this stuff.

There is already a significant strain on family courts caused by the numbers of litigants in person who are involved in private children matters. In a significant proportion there is no single solicitor to pass the buck to, and in those cases either the court will have to take a punt on a litigant being capable and trustworthy enough to liaise with the police disclosure unit, sort the fee with their ex, obtain the disclosure and faithfully distribute it all to the court and other side – or it will have to coordinate the gathering of disclosure itself. And deal with the ensuing chaos when one party, too broke to afford a lawyer, also can’t pay their half of the eyewatering disclosure order (also a problem for a represented party where disclosure is partly paid for by the LAA if the unrepresented party can’t make up their half).

The legal framework, for anyone who cares to delve into it (can’t say I ever have before now), is that by means of FPR 28.2, CPR 46 has effect when considering costs in the Family Court. That rule makes clear that third parties (here, the relevant police force) should usually be indemnified as to their costs when ordered to make disclosure. Most police forces I know simply don’t comply with orders until a fee is paid – they usually write to the court if they are unable to comply because no fee has been paid, asking for more time and hopefully nudging someone into paying, the court having already indicated in its order that the fee (whatever it is) should be split (usually equally). At some point the court may well have to determine this issue under the framework of CPR 46 in order to break the deadlock if the police won’t disclose and the solicitors feel unable to pay out fees that they know won’t be reimbursed.

But it really would be better for all if that could be avoided. So. Please. Could somebody tell the LAA that when the police are ordered by the court to make disclosure that is not work that is exempt from a fee on the basis that it’s a SAR? Because it isn’t a flipping SAR. And because this guidance is going to cause even bigger problems than we’ve already got. Perhaps everybody could tell the LAA about this by issuing a C2 to bring their cases back to court to sort it out, and the ensuing disbursements and advocacy fees might focus minds. I don’t know what to suggest, there are so many small pointless battles to choose from. It’s all a bit despair-making really…

Perhaps the LAA could revise their guidance and then encourage dialogue between police forces and family courts to try and provoke some transparent benchmarking of reasonable administrative fees so that at least when family judges are making orders they can give a realistic idea to the litigants how much they are likely to have to fork out (on top of court fees, hair strand test fees and all the rest), and can tailor disclosure orders to what is really a necessary expense and what is more dispensable? And so that the overall costs to the Legal Aid pot can be kept to a sensible minimum that does not interfere with the doing of justice?

UPDATE 21 MAY 2019 :

I have it on good authority this is all about to be fixed. Hurrah. Thanks @whewstone and @chrisLAPG.

I can’t see anything there yet but recommend that those with an interest keep an eye on the LAPG website.


UPDATE: hurrah!


Feature pic : head in hands by Alex Proimos on Flickr creative commons – thanks.