Observers and newbies are often surprised when they first see a domestic abuse fact finding hearing at just how murky, and how messy these allegations and counter allegations are to unpick. If you went by headlines in the media or by TV dramas, an abuser should be easy to spot, the answer will be clear cut and ‘the truth’ will out. The reality is more typically : trawling through a quagmire of social media and private messages, a jungle of allegations this way and that, stuff that happened years ago with no witnesses present – and often two parties who for various reasons don’t ‘perform’ in a way that meets the stereotypical assumptions about abuser and victim. There is rarely a perfect victim or an all out bad perp. More often things are not clear cut or obvious at all.
The messiness of real lives intertwined and torn is wearingly familiar to those of us who have experience over years and years of trying to help parents safely navigate these disputes. It’s rarely as clear cut as the headline or the pleaded assertion. It’s *always* complicated.
Sometimes one or both parties to dispute involving allegations of domestic abuse demonstrate marked controlling behaviour in the course of family court litigation, in the courtroom and in the witness box. Is that important? Well maybe. But it’s not always an easy route to the ‘right’ answer.
A family court judge often has to rely heavily on the presentation or demeanour of the parties. That’s all well and good, but who is to say that the presentation and demeanour of the parties isn’t affected by the circumstances they find themselves in – whether simply intimidated by the setting, accused of something they didn’t do, trying to make allegations in the face of plausible denial, or trying to pull the wool? Where they can, judges will look elsewhere for evidence to cross check against.
The adults that come before the court in these fact finding hearings in children matters are typically people who were in a relationship that involved enough commitment to conceive a child and to co-parent for some little while thereafter. People who are profoundly threatened by the breakdown of their relationship – whether that threat is felt as the fear of a mother whose identity and emotional wellbeing is bound up with her role as mother and primary caregiver who fears her child may be taken, or as the fear of a father that he will be excluded from the life of a child he loves dearly (or vice versa, or some other variation on these most typical tropes) – whatever the scenario people feel threatened, and frightened, and uncertain – and they feel profoundly that they are not in control of their life.
My experience demonstrates that most mothers, most fathers, most victims, most perpetrators and most of those accused of things they have not done – almost all of them feel disempowered, frightened and without an anchor. They all, to a piece, desperately need control – for victims of abuse it is so important to re-establish control over a life that had been terrorised and taken over, for perpetrators of abuse it is so important to re-establish that control, and even for the parent who finds him or herself unexpectedly single and trying to work out how their relationship with the child will be reconfigured – there is a need to establish some sort of direction over one’s life, some sort of framework, and yes, some sort of control over what on earth is going to happen. How on earth is a judge to work out which is which?
I see controlling behaviour all the time from all sorts of clients – be they female or male, primary carer or occasional parent. Parents who fear the loss or diminishment of their relationship with their child try desperately to establish some sort of control over what is going to happen next and over how things are going to work. The litigation process (and sometimes the advice received along the way) propels people into assertive behaviour that might not be typical either of the relationship dynamics or of the person in general.
This much is human nature. Whether what we see following the end of a relationship is indicative of a tendency towards abuse through controlling behaviour in the course of a relationship is really difficult to establish. Sometimes it may be. Other times it may simply be a function of a recently separated parent desperately trying to re-establish some modicum of control over their life at a particularly challenging time, and a recognition of the potential long term impact of post separation arrangements for children upon their longer term relationship with both of their parents.
Sometimes the way a parent behaves as litigant is a good reflection of the person they are. But it is foolish to jump to conclusions without considering the wider canvas.
The above post has been sat for some time in the drafts folder on Pink Tape, where I had left it to percolate for a while, unsure how to finish it.
A recent blog post on the Civil Litigation Blog about trial procedure and why it matters provides the answer :
WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”.
The post is about a civil case involving wealthy Russians and allegedly dodgy loan agreements, but the points made apply as much to any family dispute. What follows are extracts from the judgment, which the judge directs to Russians, who he seems to think are unlikely to appreciate how things work over here. The more I do this job though, the more I realise that these things are not well understood by the public in general, whatever their nationality or first language. I think they need to be spelt out because judges are not always performing the task people think they are performing. Judges are not magic. Court orders are not incantations.
“I should say something about how English judges in civil cases decide cases of this kind. This is particularly important in a case such as this, where the parties are Russian. They may not understand how our system works. First of all, judges are not superhuman, and do not possess supernatural powers that enable them to divine when someone is not telling the truth. Instead they look carefully at all the oral and written material presented, with the benefit of forensic analysis (including cross-examination of oral witnesses), and the arguments made, to them, and then make up their minds. But there are certain important procedural rules which govern their decision-making, some of which I shall briefly mention here.
The burden of proof
The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. On most of the issues in this case, that is the claimant.
The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for present purposes it did not happen.
The standard of proof
Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case it is merely the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing’s having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this.
Failure to call evidence
Thirdly, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing.
Reasons for judgment
Fourthly, a court must give reasons for its decisions. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge’s overall evaluation.
So decisions made by English civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.
In cases where witnesses give evidence as to what happened based on their memories, which may be faulty, English judges nowadays often prefer to rely on the documents in the case, as being more objective.
So there we have it. Judges are not superhuman. Those who demand that they should magically find out the objective truth as they see it may be disappointed. They do their best with the information available – but real lives and relationships are messy and subjective, rarely reliably captured in objective contemporaneous records, and often reimagined or reinterpreted (for entirely understandable reasons) by those who have lived them.
Controlling behaviour as observed in the courtroom is going to be one piece of the jigsaw, and whilst sometimes it is marked and telling – other times though it is indistinguishable from a side effect of the litigation and the trial process and the judge may need to look elsewhere to try and work out what has really gone on in the past and hopefully therefore how the parties are likely to behave to one another (and the children) once the trial process has concluded. In cases where there have been physical injuries or incidents observed and recorded by third parties the judge’s task may be easier – where the only allegations are of controlling behaviour the task is very much harder because of the absence of objective evidence and the difficulties in interpreting what unfolds in the courtroom.