I’ve seen advice to fathers in a number of places since the coercive control law came into force in January, which is not accurate. I’d forgotten about it until last night, when I came across a tweet from @f4jofficial last night.
I don’t know if F4J are still offering this advice or how it is working out for them because they have blocked me on twitter (long story, tres boring), but I thought it would be useful to correct the misunderstanding about what the law does – and does not – cover that is inherent in the suggestion that men should report contact denial to the police and ask it to be treated as coercive and controlling behaviour under the new law.
The new offences are set out in the Serious Crime Act 2015, s76.
The bit we need are these parts of subsections (1) and (2) (the definition of the offence is more complex than this, but these are the bits that relate to the question of whether a parent denying contact to the other after the end of a relationship is committing an offence under this provision.
(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected…
(2) A and B are “personally connected” if—
(a) A is in an intimate personal relationship with B, or
(b) A and B live together and—
(i) they are members of the same family, or
(ii) they have previously been in an intimate personal relationship with each other.
So, in our scenario A is the contact denier. Let’s say, for the sake of argument, she is the mother of the child. B is the father of the child.
She would have to deny contact more than once or continuously. So stopping contact once is out.
It would have to be in its nature or purpose controlling or coercive. So, lets say she stopped contact because the child was genuinely ill or because the father was an axe murdered with an axe in his hand threatening to murder the child (slightly extreme example) – the purpose is not there.
The really critical point though is this : A and B must be “personally connected”. This has a specific meaning which is that either the parents are in an intimate personal relationship OR they must be living together AND either be members of the same family OR have previously been in an intimate relationship.
If A and B are no longer in a relationship and no longer living together A cannot commit this offence against B, through denial of contact or any other form of controlling behaviour. A might commit some other offence, but not this one.
In some cases A and B are not in an intimate relationship but continue to live with one another (for example because they can’t sell the house or can’t afford separate accommodation). Theoretically A could commit an offence against B IF she used denial of contact repeatedly or continuously to control or coerce B, but it is quite difficult (not impossible) to prevent a person spending time with a child when they are living in the same house.
Even if I’m wrong on all that B would still have to show that the behaviour had a serious effect on him that debilitated him in his day to day activities. See subsection (4).
(4) A’s behaviour has a “serious effect” on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
Some parents will be very hard hit by denial of contact and their day to day functioning might be affected by a mental health issue – but it would have to be pretty bad to count for these purposes. I don’t think contact denial per se would cause the father to fear violence – but if it is accompanied by threats of violence there are probably other offences committed and other (easier and more appropriate) remedies, such as a non-molestation order.
What if B (the victim) is not the father but the child?
Let’s cover all bases, to make sure that we have thought about all possible scenarios. That is, we see A’s denial of contact as a denial of contact to the child (and of course it is the child’s right to contact we are often reminded to focus on)?
There are two major problems with this. Here we need to look at subsections (3) and (4) of section 76 :
(3) But A does not commit an offence under this section if at the time of the behaviour in question—
(a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and
(b) B is under 16.
(4) A’s behaviour has a “serious effect” on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
Let’s unpick that. Subsection (4) first. The denial of contact has to cause B (the child) to fear on at least two occasions that violence will be used against him. So, unless Mum is repeatedly saying something like “you will get a smack if you go”, denial of contact is unlikely to meet this criteria.
Alternatively it must cause the child “serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities”. If the act referred to causing harm in general terms one might I suppose be able to argue that denial of contact was emotionally harmful – but that is not what it says. The child must be “alarmed” or “distressed” – and more than a little bit. AND that alarm or distress must being stopping the child doing the normal things a child of that age does.
But EVEN IF we got over all those hurdles subsection (3) is fatal. The bit of the 1933 Act being referred to says this :
(1) For the purposes of this Part of this Act, the following shall be presumed to have responsibility for a child or young person—
(a) any person who—
(i) has parental responsibility for him (within the meaning of the Children Act 1989); or
(ii) is otherwise legally liable to maintain him; and
(b) any person who has care of him.
(2) A person who is presumed to be responsible for a child or young person by virtue of subsection (1)(a) shall not be taken to have ceased to be responsible for him by reason only that he does not have care of him.
It isn’t obvious to a non-lawyer (I had to look up the 1933 Act), but because A (Mum) has parental responsibility for B (child) and because she is caring for him this offence just does not apply. It is not an offence under this legislation for one parent to refuse to allow the child to see his father or the father to see his child.
I do not see any basis upon which this new legislation could be used by a father who is being denied contact except in the very limited circumstances where he is still living with the mother of the child AND her behaviour otherwise falls within the terms of the act.
So I am afraid that any father who reports a mother to the police for contact denial and suggests it is an offence of coercive and controlling behaviour is likely to be frustrated and disappointed by the response of the police (although I would be interested to hear otherwise). It is patently NOT what the act was designed to tackle, and I do not think it can be bent to that purpose because its wording simply does not stretch to encompass the sort of behaviour and scenarios we are talking about.
I am not condoning the denial of contact, but I don’t think this act is helpful to those denied contact, and I wonder if reporting a mother to the police in this way might itself be rather unproductive – and might contribute to allegations of harassment (I don’t think that the Act would protect someone who is being continuously asked for contact and complained about if they refuse to complain of coercive and controlling behaviour either – for all the reasons above). However using courts and police complaints in a tactical way in order to pressurize someone into granting contact could itself amount to controlling or coercive behaviour even if not covered by the Act, and is behaviour which could potentially lead to other sorts of action or orders being made against a father. If you are being denied contact for no good reason going to the police is probably not the best way of dealing with it.
I am intending this post as a constructive contribution to the debate on this topic, and one which offers practical guidance to fathers trying to resolve difficult situations. Sadly, it seems unlikely it will be received that way. Whilst I have been typing this post, this has been going on…
I’m not sure precisely how this post will be interpreted as me fleecing fathers (gratis as it happens) but I am sure it will…
I will tweet this post to @F4JOfficial so that they can pass useful information on to their members (I can’t do it, I’m blocked). I might be a feminist but I do know the law.
You are right. Which just proves that we need better laws and better enforcement of those laws on this matter.
In principle disobedience to an order for contact should be treated as seriously as non- violent breach of a no-contact order. And we know what that means.
I have experience of dealing with the police in regard to the coercive control law. In my case they were very sympathetic about the fact that there was nothing they could do. They could see the abuse, but they can only react within the law.
Much as I would love for the police to be able to intervene in contact denial, Lucy is correct. They will not intervene in light of this new law. F4J are wrong in suggesting that reporting contact denial is the way forward, it will only serve to frustrate the police service.
The Coercive Control law is about ‘total control’. The “Can I please go to the toilet, sir?” type of scenario. Full on narcissistic/sociopathic abusive controlling behaviour. The fact that this law is considered difficult to enforce, means the behavioural characteristics of the aggressor have to be extremely brutal in order to get a conviction. They have to control every aspect of your life.
On the other hand, denying a parent access to his or her children is a mere hindrance to someone else’s liberty – in the eyes of the law – and doesn’t even come close. The sad fact is that in these situations the ‘coercive control’ is most likely to be happening to the child. But your chances of proving that are negligible, or even worse.
Pretty much the only thing the law can currently offer comes under the umbrella of harassment. Everything else is just too difficult to investigate and/or prove. Hence, there are very few laws to protect against the majority of real emotional and psychological abuse.
Your only real recourse against contact denial is the family courts. :-/
No cuts and no bruises == no police and no laws. Everything else is fair game.
If you think about it, one could conceivably consider this situation to be a psychopath’s paradise..!
Your examples are biased. If for example the mother is not happy with the father’s new girlfriend or she has a new partner that wants to not be involved in a messy split up. Or the mother is trying to extort a better divorce or child payments for the father then that would count then wouldn’t it?
The child is not the exclusive property of the mother. The child is the product of two parents who in any just world are equal, equal parents.
Your whole article has man-hating bias underlying your arguments. I know this will upset you. But when you take children away or deny contact between parent and child or you assist someone to deny contact between a child, you are conspiring to cause grievous psychological harm to both the child and the parent.
You lawyers who indulge in this vindictiveness against father’s in the main should be ashamed of yourselves. Diving behind false rape, false child abuse and false domestic violence allegations to justify your heinous acts is another example of your heinous behaviour.
Children are being systematically damaged as well as fathers.
Any small piece of law that helps alleviate the suffering and you want to pounce on it and tear it to shreds. Shame on you.
Hello George. No I’m not upset. I’m afraid I don’t think you are right though. Although all of the behaviour you describe is wrong and some of it might amount to an offence, my point is it can’t as a matter of law amount to an offence under this particular piece of law. All I’m saying is this piece of law doesn’t help dads in this situation (even the ones you describe), and I wouldn’t want people to think it did and be disappointed.
George, I think that you might need to think this through a little more. Lucy isn’t ‘tearing to shreds’ the potential for justice, she is representing the law for what it actually is. Blaming a lawyer for failings in the law is a lot like ‘shooting the messenger’ … very little point and your post will also stop coming.
Re “The child is not the exclusive property of the mother”. Well as far as society at large or the family court system is concerned this is absolutely the case. In my experience the child is definitely the exclusive property of the mother, and that is what they use to destroy the fathers – should they have the intention to do so. If this were not the case then we wouldn’t have the issues that I’m sure you’re currently dealing with. Would we?
No. The child is not the exclusive property of the mother. The last time one human being owned another human being was before the abolition of slavery act.
The courts and especially the lawyers need to start operating in the spirit of the law. They need to follow their own code of conduct. They also need to ensure that the overriding objective of justice is met.
Solicitors advising clients to withhold children to get a better settlement happens more often than you think. Of course there are good and bad solicitors, judges and CAFCASS officers. But our children’s lives should not be a lottery.
The family law regime stinks. It is rotten to the core. The laws are not that bad. However, I have seen some very strange rationalisations from judges to justify the cutting out of a father from a child’s life. I have seen two identical cases lead to 2 absolutely different outcomes. I have seen some dishonest barristers deny what was agreed between a mother and father in terms of contact outside court and go into court and lie to a judge.
Children are being systematically damage through the family court system. Why does a judge rule what a CAFCASS office puts into his report. Is CAFCASS the judge or is the judge there to rubber stamp a CAFCASS officer’s report. Many CAFCASS officers are feminists who hate men and are trigger happy with DV allegations.
Taking great pleasure in ridiculing father’s because they can’t get a good enough piece of law together to enforce contact is not a good approach. If you were a more enlightened lawyer who fought injustice, you might dig deeper and find some laws or procedure that could assist against the grave injustice that is meted out against father and child.
Deep breath. George, lets take this paragraph by paragraph.
No. The child is not the exclusive property of the mother. The last time one human being owned another human being was before the abolition of slavery act.
I agree. Not the property of anyone as it happens.
The courts and especially the lawyers need to start operating in the spirit of the law. They need to follow their own code of conduct. They also need to ensure that the overriding objective of justice is met.
I agree. But it doesn’t help anyone for lawyers to ignore what the law actually is / says and pretend that it says what we think it should or could be. The judge has to obey the law, so we would all be wasting our time. It would be a breach of our code of conduct to advise someone to pursue a claim or argument that has just no proper basis in law. Your grievance is with Parliament not the lawyers and judges who have to operate with what Parliament gives them.
Solicitors advising clients to withhold children to get a better settlement happens more often than you think. Of course there are good and bad solicitors, judges and CAFCASS officers. But our children’s lives should not be a lottery.
I’m not sure how you know what I think about how often that happens. If you want to know what I think I suspect that doesn’t happen very often – although I’ve had plenty of clients who are quite keen to take that approach. I can’t speak for others but I would certainly advise them against that and refocus them on the needs of their children and the potential waste of funds and goodwill in what they are proposing.
The family law regime stinks. It is rotten to the core. The laws are not that bad. However, I have seen some very strange rationalisations from judges to justify the cutting out of a father from a child’s life. I have seen two identical cases lead to 2 absolutely different outcomes. I have seen some dishonest barristers deny what was agreed between a mother and father in terms of contact outside court and go into court and lie to a judge.
See above. I’m surprised you are railing at the lawyers and the judges whilst saying that the law is not that bad – we operate according to the law. If you don’t like this particular law (and you are not alone in that) the answer is to campaign to get Parliament to change it. I can’t change it, judges can’t change it. All I can do is argue for one or other interpretation and perhaps persuade a judge to go with that – but that can only take you so far. In this example I can’t actually argue it says something it just doesn’t. Some things are capable of having more than one interpretation but the words of this bit of legislation are very very clear so it can’t be done the way F4J suggest (in my opinion).
Children are being systematically damage through the family court system. Why does a judge rule what a CAFCASS office puts into his report. Is CAFCASS the judge or is the judge there to rubber stamp a CAFCASS officer’s report. Many CAFCASS officers are feminists who hate men and are trigger happy with DV allegations.
I expect many CAFCASS Officers are feminists. So what? Feminists are pro-equality so this is to the advantage of men in my experience. And as it happens I have on many occasions seen a judge go against a CAFCASS Officer’s report – so whilst I agree it is difficult to get an outcome that is contrary to what CAFCASS Recommend it is not impossible or unheard of.
Taking great pleasure in ridiculing father’s because they can’t get a good enough piece of law together to enforce contact is not a good approach. If you were a more enlightened lawyer who fought injustice, you might dig deeper and find some laws or procedure that could assist against the grave injustice that is meted out against father and child.
I’m not ridiculing anyone. I’m trying to say don’t waste your time with this particular bit of law because it won’t work. Try and find other strategies. Whatever the problems with enforcing contact orders in the family court (which are many) this new piece of law really doesn’t represent any sort of answer for dads I’m afraid. I’m sorry that is so but it is better that father’s understand the situation for what it is than labour under the false hope this will be a game changer. It won’t.
Wrong Feminism is not equalism. Feminism is women’s advocacy. DV laws are there to protect women by tilting laws in their favour. When a law is enhanced to protect a particular gender it is done at the expense of the fair trial rights of the other gender. Non molestation orders granted ex parte are a grave violation of fathers’ rights and are hardly ever remedied. And by the time innocence is eventually proved the child/father’s contact has been irrepairably damaged. False allegations are rife. Many CAFCASS officers treat allegations as fact in their reports and make recommendations on those facts.
And father’s who have seen the false scenario painted before the court and are leave court in utter disbelief at the outcomes will obviously try to clutch at straws or any ray of hope at the absolute injustice that befalls them.
Do take a look at DV laws and tell me which of them is gender specific. None that I can think of. They are all equally applicable to male / female / trans victims. You rightly point out the risk that a non molestation order granted ex parte can cause injustice – I have seen this happen to both male and female respondents to such applications (usually male respondents but not always). I have also seen very specific harm caused when an ex parte order was refused.
You are also right that, on occasion, CAFCASS Officers treat allegations as fact. This is a matter that any competent lawyer representing the alleged perpetrator would highlight to the court as it is not the role of CAFCASS to judge the facts – that is for the judge to do. I can think of one case where this has happened recently but it is not commonplace in my experience – more often CAFCASS will say – if true then xyz, and recommend a fact finding hearing if it is something that will make a difference to outcome.
Fathers do clutch at straws. But it does them an injustice to allow them to clutch at straws which have no hope of helping them. It is a shame that those who would advise fathers sometimes do so without thinking of the potential down sides of their advice.
It is interesting that Fathers For Justice seem so determined to make life difficult for their clients. If one were paranoid one might assume that F4J were actually a splinter group from some rad fem group determined to see that men suffer horribly, by riling them up into such stupid and counter productive activities that their hopes of regaining a relationship with their children are torpedoed absolutely.
I have had an entertaining morning reading their tweets which bellow ‘don’t trust lawyers! ‘represent yourself!’ and then decry your advice (which is accurate, concise and FREE) as ‘snake oil’ and threaten to report you to the Bar Council (for what?? Still waiting for them to complain about me as they threatened some months ago now.)
Those who would seek to persuade others away from the advice of those who might help would be wise to have something offer other than this dangerous and damaging, witless tomfoolery.
Patronising snooty feminist. when there is no solution within the law, then justice needs to come without the law.
George, you’re welcome for the free advice. I can only tell people what the law is and I wouldn’t support the taking of “justice” outwith the law. And between you and I, the batman tights are likely to give you jock itch. All I can advise is to understand where the law can and can’t help you and to campaign lawfully to change and improve it. Calling me a patronising snooty feminist ain’t gonna change the law.
Aimed at Sarah Philimore.
Justice is unlikely without the law. Read some history.
“If one were paranoid one might assume that F4J were actually a splinter group from some rad fem group determined to see that men suffer horribly, by riling them up into such stupid and counter productive activities that their hopes of regaining a relationship with their children are torpedoed absolutely.”
I think you are on to something there, Sarah. Not that F4J are part of a rad fem splinter group, but that their policy now is to wind their members up into such a state of indignation and fury that they are prepared to risk their own liberty and catastrophe in the courts in support of “the cause”.
The unfortunate case of Tim Price would seem to prove my point; in a letter of apology to Caroline Nokes MP after he had sent her death threats he wrote, “I got myself wound up by utter hatred that came from [the F4J Facebook] page”.
Handing out ineffective advice may well form part of this strategy.
Hi Nick,
That’s quite something to suggest that F4J are doing this intentionally – have I understood your view correctly? I have rather taken the view it is just a blindness to any view than their own, but perhaps the motivation matters less than the effect. I don’t know anything about the case of Tim Price.
Lucy
Not sure I agree.
Section 3 doesn’t stipulate ‘B’ as being anything other than a child. So, if ‘B’ is the father, s.3 wouldn’t apply. For s.3 to apply, ‘B’ would have to be the child in s.1 & 2.
Your interpretation would require that ‘B’ would be simultaneously referencing different parties in different sections. (another person s.1 & 2 / the child s.3)
Hello David,
I think I’ve understood you comment – but if I’ve correctly understood it I don’t think you are right. Happy to be corrected though if you can re-explain – struggling a but as on the move and trying to cross ref on weeny screens.
Let me explain what I think :
If the victim (B) is the father denied contact I agree s3 does not apply. But for various other reasons I’ve explained unless the parents are living together s76 CAN’T apply anyway, and even if they are living together it seems highly unlikely it ever would.
If however the child is said to be the victim (B) – I was trying to think of all the different ways a father might be able to argue a crime had been committed here – then s3 DOES apply and there is NO OFFENCE (at least under this bit of law).
I think you’ve misunderstood what I’ve said but if I’ve misunderstood you please let me know. I do want to get it right! Thanks.
“OR have previously been in an intimate relationship.”
Do you seek to deny that a mother and father who have separated were not previously in an intimate relationship? I do not understand how denial of contact is not controlling behaviour. The mother does not won the child. When the child is prevented from seeing the father this is controlling behaviour. It is psychological violence in that the child is threatened with loss of affection by the alienating mother. I measure how serious the harm is to both the father and the child. Are the children traumatised by this experience. Of course. Is the father traumatised by this experience of course. I have seen the end game of these games you lawyers play. When these children reach 13/14 and they start to exhibit difficult behaviours you can fully understand that the harm is serious. When children start to become anorexic, indulging in drug taking and teenage sex, self harming and some have even committed suicide. Many fathers have become alcoholics or committed suicide because of denial of contact.
But you carry on and piffle about with your interpretation of the laws. Obviously you don’t have a conscience. People are suffering because of people like you.
You repeatedly diminish human factors and belittle people’s human rights. If the law doesn’t accurately fit the circumstances I am sure you are not one of the first protesting.
George you are misreading it.
If a couple have been in an intimate family relationship but are no longer they must ALSO still be living with one another (which is unlikely in most cases).
It’s easily done but there are rules about statutory interpretation and the way this is worded you have to show both.
I’m not suggesting they wouldn’t have been in an intimate relationship or that contact denial can’t be “controlling” behaviour – I just don’t think it can be squeezed to fit withing the definition of an offence under this section. It is quite possible for someone to be highly controlling and coercive (through contact denial or some other behaviour) without it necessarily falling under this very specific piece of criminal law.
At he end of the day, it’s close to supporting the non resident parents (whether Dad or Mum) who are experiencing C & C with their children being used as weapons and feeling the severe emotional impact of this. IF 2b were taken out (i.e. living together) it would be much more useful in supporting estranged parents. This particular law needs amending! https://petition.parliament.uk/petitions/117302
My take was based on: For s3 to apply, B would have to be the child, in which case the child is also ‘B’ in s1 & 2.
If B in s1 & 2 is the father (to use your example), then s3 wouldn’t apply.
In other words, for the purposes of interpreting the act, B can only be one entity at a time, not separate entities for each section of the act.
Hi David. Thanks for clarifying. Yes, I think you are misunderstanding what I’m saying : you talk about my example but in fact I gave two separate ones. So, number 1 :
A dad goes to the police and says ex has committed offence against ME under s76 : won’t work because of ss(1) / (2) / (no longer in int rel / not living together / serious harm etc…)
Number 2 :
A dad goes to the police and says ex has committed offence against MY CHILD under s76 : also won’t work because of ss(3).
The real vilains as far as contact is concerned are of course “as usual” the local authorities when they not only deny contact to parents but get non molestation orders against parents who have never physically harmed their children and who would not dream of molesting anyone ! To cap it all they jail any parents who then dare to approach their own children even indirectly sending a birthday card,saying happy 21st on face book,or waving at them as they pass by in the street ;Social workers and judges doing this deserve to be jailed themselves for crimes against humanity !
Well done Ian – totally off topic, but you make it almost seamless….Incidentally, you do know it is generally for a parent to apply for a non-mol against the other parent (unless the court does so of its own motion in existing family proceedings)?
You are quite right. There is an air of unreality in the family court. The case as it is presented more often than not has no reflection in reality.
I think we got there! Yes. I agree the application of the act would be very limited. The article spiked my attention because the act could potentially be used where there is evidence of NMO process abuse at the beginning of a breakdown.
You may have already seen some reference in the media to the NMO (their own) stats that Kids for Cash UK has provided to ministers and the media but we have just recently received some additional stats (after the ICO threatened the MoJ with a contempt action!) that seem to nail the issue once and for all.
Privately, we are being told by MPs that ministers have known for some time about the NMO-related legal aid scam being perpetrated by a small number of large law firms. I’m also told that ministers are aware that the scam cannot work without the collusion of a similarly small number of the judiciary. The stats do appear to confirm those same law firms working outside of their immediate geographic curtilage in following specific circuits whilst lodging NMO applications.
Sadly, we are now well into the realms of government spin to ‘maintain public confidence in the legal system / judiciary’. This has already included mainstream journalists being told that the MoJ’s own stats were incorrect… until we provided them with the associated emails containing the original MoJ supplied stats.
What needs to happen is that, instead of the MoJ counting the court itself as a category of corroborating evidence during an NMO application, there needs to be a record of the corroborating evidence (and I don’t mean just a checklist, which we’ve seen abused in other court processes). Whilst the stats show roughly 20% of ex-parte NMO’s being discharged at full hearing, just 0.01% of ex-parte applications are rejected on application. In some cases where evidence has been properly provided, we have examples that include a senior family law partner heading up a DV charity that provides supporting letters for NMO applications. Nemo judex…
Expect a press release soon…
Phew! That’s a relief.
On your other point, I’ve been half following this – the stats are interesting certainly, although I’ve not had a chance to look in detail. But I think there is another perspective / possible explanation and I’d be interested to hear what you identify as the specific evidence of corruption as opposed to this alternative :
I am not surprised there are areas where some firms take on large numbers of non-mol applications even those spanning quite a large geographical reach and that this skews the stats. Since LASPO (and before to some extent) many firms have moved out of this sort of work (non-mol, private and public law children or family legal aid generally) for reasons of economic necessity. This has created some legal aid deserts or at least a limited pool in each town or locality. By contrast some firms have consolidated and specialised in these fields, developing a niche as d.v. lawyers – and are servicing the needs of a large number of clients over quite a geographical spread. And I imagine they probably issue in the court centre most convenient for them, so this may mean a particular court has a massive number of applications. As I say I don’t see on the face of it that the pattern you describe is necessarily evidence of corruption.
On the rate of discharge of non-mols – isn’t that just a natural consequence of having an ex parte system and of the trial process – where some facts will be proved and some not? Again, can you help me to understand why you think this is evidence of something dodgy?
Do send the press release, I’d be interested to see it.
Most non molestation orders are granted on false allegations without a follow up hearing. Mother’s perjury is all too common.
I think the practice is changing – it is generally now much harder to get an ex parte order, and return hearings are more routinely listed. Still a work in progress though.
Why work in progress. You tell me the lawyers follow the law. Why didn’t the barrister who obtained an ex parte allegation not follow the law. Not even an affidavit in support. It was a case where the father met the mother and daughter and wanted to discuss the meeting. The mother went to the police saying the father tried to kidnap his daughter. No violence except the mother tripped on the kerb as she was rushing away from the scene. The father actually picked the mother up off the floor. Some trickery over listings and there has been no hearing to provide remedy
Not appropriate to comment on specific cases.
Which high court judge was it that
criticised non mols as being handed out like smarties to queues of women on a friday afternoon?
You mean Peter Jackson J in R v R I think : http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/r-v-r-family-court-procedural-fairness-2014-ewfc-48#.Vu7tasf9qus
He did not put it quite in the terms you suggest (nothing about queues of women, and his guidance applies equally to men and women applicants) :
The case highlights important principles, applicable to all such cases:
(1) The default position of a judge faced with a without notice application should always be “Why?”, not “Why not?” As has been repeatedly stated, without notice orders can only be made in exceptional circumstances and with proper consideration for the rights of the absent party.
(2) The court should use its sweeping powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing. Where an order is made, it is the responsibility of the court (and, where applicable, the lawyers) to ensure that it is accurately drafted. This consideration applies with special force when a breach of the order will amount to a criminal offence.
(3) 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.
(4) The power to penalise non-compliance with case management orders should be used firmly but fairly, in a way that supports the overriding objective rather than defeating it. The court should apply the rules (here specifically FPR r.4.6) with that aim.
(5) The court should be on guard against the potential for unfairness arising from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby the applicant is entitled to legal representation as a result of unproven allegations, while the respondent is not. In this case, the fact that one party had no legal advice at any stage was critical to the outcome.
Let’s not assume anything about the significance of the statistics as anything other than the official figures that support the contention of those who have presented verified documentary evidence to the court of abuses of NMO process.
As supporting data, the headline figure is the 0.01% of ex-parte NMOs denied on application. Out of circa 15,000 ex-parte applications in any given year, the reported ‘improvement’ in governance has meant that the numbers of declined ex-parte applications have increased from 2 to 10. Yes, that’s two to ten.
I’d be interested in your opinion of my take: that s.76 could potentially be used where there is evidence of perjury in the NMO application.
David,
I’m not surprised the no of NMOs declined on application ex parte is v low, although I’m skeptical about whether the 2/10 figures are 100% reliable. I just don’t think that the courts capture the data in a v reliable way at source. But either way I’m sure its v low.
I don’t really see s76 as being apt for cases where there is evidence of perjury in a NMO application. Where there is evidence of perjury then perjury should be pursued. But ultimately it is a matter for the judge to refer that if appropriate. The mere fact a finding has not been made is not in itself proof (or even evidence) of perjury. I acknowledge the police are not renowned for bringing such prosecutions where the alleged perjury is in family proceedings.
I don’t really have time to go through s76 articulating all the reasons why I don’t think its appropriate, but it certainly wasn’t the policy intention and I suspect you’d have a hard time making it fit with requirements like e.g. repeated conduct, serious impact on day to day activities. The various elements of the offence will be hard in any case to prove but I suspect nigh on impossible where it is a case of somebody pursuing a right of application, albeit in a malicious way. You’d probably need categorical findings from the family court that this was so before you even got off the blocks, not just a refusal of a NMO application.
Pursuing perjury is mostly a dead end. Judges in my experience will declare that it is not material to the case so the police and cps will not pursue it. In my experience
I agree. Waste of energy usually.
Coercive control is the only form of Domestic Abuse which requires the parties to be living together. All other forms of Domestic Abuse don’t require such a specific relationship. Denial of court ordered contact is domestic abuse, it isolation from your family. The victim is the party in whose favour the court order has been made, the child is a victim of child abuse, not domestic abuse.
This should be reported to the police, as should all domestic abuse. I should correct a comment I made on your Sticks and Stones post when I attributed remarks to the home secretary, Teresa May. It was in fact Labour’s anti domestic violence spokesman/spokesperson Seema Malhotra http://www.dailymail.co.uk/news/article-2846299/Bullying-husbands-shout-wives-guilty-domestic-abuse-new-crackdown.html, my mistake.
Brian, In itself refusal of contact is not domestic abuse and it is unlikely in most cases to be a criminal offence or a matter that the police are prepared (or able) to get involved in. There may be some circumstances in which refusal of contact amounts to a criminal offence but I would be anxious about the suggestion that any and all instances of contact refusal should be reported to the police as that is likely in many cases to escalate matters and make them worse rather than better.
According to ACPO it falls within their definition of DA. It is a crime and should be reported. Those who refuse to comply with court ordered contact and deny a child a relationship with the other parent are abusing that child and the other parent. If they don’t want to be reported to the police all they have to do is comply with the court order.
And yes the police will get involved, I know that to be the case.
Not sure if we are at cross purposes Brian. Can you link me to the bit of guidance you are referring to? Thanks.
We all have mouths and should learn to use them if feeling bullied or coerced.
Most ladies can hold their own if the so called “abuse” is only verbal not physical. Some ladies even have much louder voices than their partners.
That is why all the claptrap about emotional abuse should be ignored as it is merely used as an excuse for social workers tio seize babies and Young children and judges to order their forced adoption.When
social workers,psys, or Guardians make predictions of emotional abuse it leaves the parents helpless How can anyone prove that a prediction will certainly be wrong? I advise those who wish to know their future to go to gypsy Rose Lee’s tent at the fairground and look into her Crystal ball. She has been predicting most of her life and by sizing people up has got pretty good at it , but social workers and judges have had no such training and should refrain from the idle speculation that splits up so many loving families when they appear in our “family courts”.
Oh yes I forgot forcedadoption you think emotional abuse is a figment of our imagination. What claptrap. It is very real, as is the impact of verbal abuse. It’s surprising given the vast experience you have that you have such an antiquated view of the parameters of domestic abuse.
And do stop calling us “ladies”. It makes you sound rather ancient and patronising.
Wading in and adding my two-penneth, people need to separate ideological ‘what should be’ and with practical ‘what is’. Lucy’s article wasn’t biased or man hating, it was factual and helpful and people would be wise to get to grips with what she’s saying.
In the real world, reports to the police for what is still considered a civil law matter (contact denial) can be viewed negatively by the courts. It can damage people’s cases.
Is there a case for arguing at a policy level that contact denial is a form of domestic violence and emotional neglect of a child through failure to support their important relationships? Absolutely and I do. There’s good evidence that it can cause children long-term psychological harm, and I know the trauma it causes parents who don’t see their child. Here’s the rub though, from a legal perspective it’s a matter to take to the family courts rather than a matter to report to the police.
From a campaigning side, it’s a matter to take to politicians, because as Lucy points out, the law hasn’t particularly changed.
A wise parent who is trying to re-establish a relationship with their child has to weigh up the risks and rewards of any course of action. The reward of reports to the police for contact denial is potentially a slow grind to social change but tempered with the reality that the police won’t do anything currently although yes, they may be sympathetic.
Then there’s the risk of reporting contact denial to the police. The risk is the parent is viewed as more interested in warfare with their ex than in re-establishing a relationship with their child. That is likely to be looked on negatively by the court. Worse if the police are repeatedly called and asked to attend the property. The court may conclude that both parents are emotionally abusing the children by exposing them to conflict. Some judges will get irritated that the parent is not dealing with the matter appropriately, and the appropriate way decided by Parliament is an attempt at mediation followed by an application to court if mediation is unsuccessful.
Let’s get to the real world and bias, and unfairness. The potential exists, after you’ve made a report to the police for a civil matter, of your ex-partner making a counter report. While there are some judges who do take an unbiased line, others still exist (and these are usually male judges, not the female ones), who’ll see crocodile tears from mum and have an emotional reaction. Expect to see the next few months in a contact centre or contact stopped entirely by order of the court while matters are investigated (which due to austerity cuts is going to take months). A new status quo gets established while false allegations are investigated which the judge may or may not over-turn.
So after a reasonable amount of waffle, I’ll say thanks for the analysis Lucy, it’s useful, and people would be wise to heed it. It’s ‘real world’ thinking which isn’t biased, but arguably seeks to protect people from bias which exists and risk. Similarly, no need for F4J to be defensive about their post, as this is a complex and new area of law needing interpretation and someone who will ferret away to research and explain things as they stand.
Thank you Michael.
Just one comment Lucy – (not about any UK legal definitions) – regarding ‘So, lets say she stopped contact because the child was genuinely ill’ – here in NZ any claims of a child’s illness stopped being any sort of an excuse to deny contact many years ago – with good reason. You don’t need to be a judge, a lawyer, a doctor or even a rocket scientist to see how easily such ‘claims’ were used and abused in the bad old days.
Well I can see that illness is susceptible to abuse but there really are days where it is wrong to lift the poor little mite from their sweaty bed just to satisfy the other parent that they really are unwell and to ensure they get “their time”.
There goes those presumptive examples. This is typical of the untruths told by lawyers and their clients. Your prejudice is transparent to others.
Are you denying that children are sometimes genuinely ill George? Or just that it would sometimes be better for them to be left in bed to get better rather than dragged out from one home to another for “contact” that is no benefit to them or their other parent? I agree sometimes – often – a child’s “illness” is just an excuse – but they are sometimes too unwell to go *anywhere* whether that be school, contact or the soft play. Surely you can see that?
And father’s cannot comfort children or be there when the children are upset because they are 2nd rate parents who cannot hope to compete with a mother’s innate ability to … well mother? I have seen too many cases of kids who were too ill to go to contact but being well enough to go to some special treat event arranged my the mother to take your approach seriously.
I do not need to hear yes it happens sometimes. When there is contact dispute it happens most of the time. A robust approach is needed by the judge, CAFCASS and others. Have you ever seen the long term effects of children who have been denied access to their father. I have and it is a big mess. I have seen children being anorexic, withdrawn, truancy and a general level of confidence.
I had a guy argue it in court the judge sided with my the Dad I was supporting. His line to the judge was ‘your honour, I want to parent my son no matter how he is feeling. I want my son to know I’m there for him when he feels great and when he feels lousy. I want my son to have the opportunity to be cared for by me when I have to get up five times in the night to comfort him.’
It’s also about giving the child the opportunity to be parented by both parents no matter how the child is feeling.
Now I accept that this won’t apply in all cases but in the cases I’ve been involved in the journey between the parents homes has always been less than a journey to the doctors.
The only way such a clause is not open to abuse is if both parents agree for the child not to be moved.
When my daughter was of that fevered age caring for her when she was sick was some of the most special times.
In my view half the reason parenting plans fall down is when one parent is given the opportunity to take liberties. By the time matters get to court the chances are that they’re in court because one parent is being obstructive.
yeah, one parent being obstructive or the other being oversensitive about those times contact can’t sensibly go ahead – or a bit of both.
It’s quite simple, if the child can’t go from one parent to the other parent if they are too ill it works both ways. So if the child goes to the “contact/visiting/non-resident” parent and falls ill then they stay with that parent until they’re well again.
Tends stop this sort of shenanegans dead in its tracks.
I agree – works both ways.
Except when the father keeps the child the red sirens starting flashing and the SAS get called to rescue the child.
Only where there is reason to think the father is abducting the child or there is a history. In families where the parents are grown up enough to communicate and say “I’m going to keep billy because he’s running a terrible fever, I’ll drop him back tomorrow” that doesn’t happen.
At the risk of provoking F4J to inflict upon themselves a collective cerebral haemorrhage due to their fury, I have to say in all my years of court experience, I have seen no bias or favour towards mothers at the expense of fathers. In fact, courts seem to go out of their way to include fathers. In looking at some of the sexist language and disrespectful attitudes towards women that F4J use and show, it’s hardly a surprise to see courts being sceptical about their role in children’s lives and it only serves to highlight some problematic world views that children may need protecting from.
If you go back a few years, bias was more common. A mother applying for leave to remove would routinely see it granted, a line of authorities dating back to those voiced by LJ Ormrod still influenced senior members of the judiciary. Ormrod’s opinions were shared by LJ Dunn in his 1993 biography ‘He was not sympathetic to husbands who maintained that they could bring up the children as well as their wives, saying that such men either neglected their children or gave up their jobs and became so engrossed in the children that they grew up in an unnatural environment.’ Times have changed, but the law is sometimes slow to catch up.
For anyone involved in helping fathers in leave to remove cases before the 2011 review (and while things bedded down after), it’s a little eyebrow raising to suggest there wasn’t bias and law based on gender based ideology. It wasn’t just campaigning groups calling for change, but a number of female barristers from firms such as Mischcon De Reya and the International Family Law Group (which challenges the belief that the legal profession don’t acknowledge and haven’t been prepared to challenge flaws in the law and bias). Sweeping generalisations about professions or campaign groups are a little unfair when based on individuals’ comments or sometimes a bit of advice which is wrong. Sometimes people do say hotheaded things, and get emotional, but people tend to when their family lives are adversely affected or when their professions are criticised.
It isn’t that many years since I remember judges holding an opinion that a father wishing more than two hours a fortnight was being possessive, and another where a circuit judge (and who still heads an FJC) couldn’t understand why a father would wish to be involved in their child’s nursery education.
Things have changed, and improved and comments such as these are now thankfully rare in a system which is less than perfect. Some of that change came about due to the protests of F4J and whether people agree or disagree with their methods, they did help some of that change come about. I don’t have any links with the organisation and haven’t had in the past, but while it’s wrong for people to troll Lucy for having offered decent advice, it’s a little fanciful to suggest that bias hasn’t and at times still doesn’t exist. It does, which is hardly surprising since individuals are involved in making decisions.
Answering the last point in the post I’m replying to, thankfully we have a President who’s handed down some useful advice on when there should be ‘protection’. We should only be stepping in to protect children when they’re subject to significant harm. I recommend a read of Re A (A Child) [2015] EWFC 11 which has sensible advice in this regard. Can we really (or should we) intervene in family lives to protect children from some world views which we disagree with? Could we really cope with that? Seems a little OTT to me.
I agree separation is mostly about separation of the adults. Why the obvious over obsession with child protection? Because it is an angle to justify the gender racism that exists in the family court and to by-pass the rights of the child and father to family life.
The “over obsession with child protection” is because sadly parents do hurt their children. Sometimes deliberately, sometimes through neglect or ineptitude. But they do – sometimes very badly, sometimes with lifelong consequences, and sometimes fatally. It’s nothing to do with the exclusion of fathers, but about protecting children from dangerous parents and those their parents would allow them to come into contact with – whether those be men or women.
Child protection IS an excuse to excise fathers from the children’s lives. Before the ‘welfare of the child being paramount’ they used different excuses and uses of child protection as an excuse didn’t exist. Nearly every case where there is a dispute over contact brings up the specter of child protection allegations. You need to climb down out of your ivory tower and ask fathers who have been through the family courts about their experiences. The family court system is not working and I put the blame at the feet of the lawyers, judges, CAFCASS and social workers. There is a gender bias which you could call gender racism that pervades most of those who run the system. Until we have shared parenting as the norm you will always have disastrous results for the families that you process.
you *could* call it gender racism. but then that wouldn’t make any sense….
more seriously, there are contact cases where child protection is a real issue. I assume that you don’t deny that is the case? Some fathers, some mothers are simply dangerous. The court CAN’T just ignore allegations of a “child protection” nature, but it must be astute to try and work out which are genuine and which are not – and I agree with you that undoubtedly some are not genuine or are overblown to prevent contact. It’s not about ivory towers, it’s just not as easy as saying we should just ignore any parent (mother?) who raises a child protection allegation – unless you are saying that there are no violent dangerous fathers (or mothers) out there AT ALL your position just doesn’t make sense.
Shared parenting would not and does not prevent one parent from making a child protection allegation, whether based in reality or fabricated. And I’ve yet to see a case where shared parenting (by which I think you mean equal or broadly equal care*) has magically resolved disputes or made a reluctant parent suddenly behave. Shared parenting works where those issues don’t exist in the first place in my experience.
* As it happens that isn’t how I’d define shared parenting but I hope I have read your post correctly.
So every case you have seen has resulted in shared parenting? I think not. So you have seen a 50/50 dispensation of non molestation orders men v women? I think not. In fact I have never seen a non molestation against a mother. Social workers study sociology at University. Sociology is not a scientific study but the teachings of the feminist creed. Any ideology that puts itself forward as a pseudo-scientific explanation for society is doomed to failure. Our society is not set up as a system of male oppression of women. There are other ways of looking at society and the relationships between men and women than just as oppression.
We need a Columbus of the sociology to travel that bit further round the sociological world to discover the true nature of human relationships. At the moment these views are sociological heresy. I know the sociological world is not flat but round. There are too many inconsistencies in the feminist view point that are continually ignored or railed against. Feminists want equality at the same time as they want special treatment for women. You can have one or the other not both.
I’ve seen non molestation orders agains mothers plenty of times, although the majority are against men.
I don’t think sociology *is* the teachings of the “feminist creed” but I think it is in line with feminist thinking i.e. that women are equal to men – I don’t see a problem with that and I don’t see social work as being just or mainly about male oppression of women but about helping people to live the best lives they can. I don’t think social work sets itself up as a science – social science is a soft science in that it deals with human beings who are infinitely different and fallible.
It’s a shame you have such a narrow view of what social work aspires to be and what it can be at its best, for all the failures of individual social workers and the structures and institutions in which they work.
Men and women have equal value. Feminism is not equalism. You have been sold an ideology based on false premises. Feminism is about advancing women’s rights, even when women have an advantage such as in rights over children.
Feminism has built up an ideology based on male oppression of women as the underlying way society operates. This is wrong.
Social workers have an incorrect ideology that informs them which results in them making many errors when assessing families. Every time they approach a family they are trying to see what form the male oppression has taken in a particular family. The woman is put on a pedestal and if the woman instigated violence it was because a man drove her to it. A wife kills a husband and she is found guilty because she was oppressed during the marriage is the scenario a court gets sold on.
You do realise that for centuries women were legally chattel, had no choice but to be the primary care giver, no means of independent income or living and were also liable to have their children removed simply for committing adultery or behaving in some socially unacceptable way? We’re a long way from that but I don’t recall any man who promised to love honour and obey his wife or was given away by his father so the symbols are still there…Feminism is about giving women the choices that men have always had about how to run their lives. In the family law field history has meant that for a long time mothers were seen as innately the best primary carers for children, but our understanding of what children need is now much more sophisticated. In law women generally have no more rights than men over children, although in practice more women seek the protection of family courts for themselves or their children.
And in past centuries men had many choices? Not really. Look at the life of toil and sweat of men working down the mines for long hours or labouring in a steel factory or fighting and dying in a foreign war. But you are a feminist and not an equalist. You promote the hardship of women of centuries past but ignore that suffering of men. Which I put to you, you would put them side by side if you are an equalist. So what choices did those men have in ages past. Or do you suggest that they had a life of luxury because they were members of the mythical “patriarchy” club. It is feminism that is preventing you see the discrimination against fathers in the family court. It is like the anti-semitism of Hitler and the holocaust when people try to criticise Israel’s actions against the Palestinians. Jews will claim that any criticism of Israel is anti-semitic. In the same way that victims of racism can themselves become racists, women who have been the victim of sex discrimination historically can start being sexist against men.
Hi George,
You make a fair point that many men also have had limited choices in past times – but that is more to do with poverty and class than gender. It is worth remembering though that many of the changes that now benefit men (not least the social freedom to be a primary carer or even to be a “hands on” dad) are social changes instigated or agitated for by feminists but which have benefitted men in other ways. If women were not liberated from their traditional roles or allowed into the workplace fathers would not have the option to care for children in the way that many now do. So although there ares still those who hold the view that young children are best raised by mothers we would not even be having this argument were it not for feminists.
By the way, since you have invoked Godwin’s law this conversation is not going to go very much further if you can’t rein it in. I don’t really do conversations where I’m being called a nazi.
By the way, came across this interesting study on the topic just after typing my last comment to you George. http://nirop.org/2016/04/03/contemporary-fatherhood/
I agree with you and call up familoo… firstly rape allegations are rife in these instances,,with no proof and nfa criminal invest. Also when mothers predominantly the RP’s are in contemp, blatant abuse, judicial misconduct and so on the courts reinforces their opinions of carte Blanche actions on stated orders. The judges are biased, inept And prejudice from the outset and my personal opinion is that al involved are using this as a moneymaking utility. I have personal experience where no evidence and blatant lies and contradicting evidences given by mothers re taken as fact when the so called judges, (actors apparent) do not even satisfy their own code of conduct as judiciary’s in these cases. More recently blatant lies by mother have been ignored but above all the real welfare and best interests of the children ignored to satisfy #MothersWants … which is all the system is based on. Laws re s joke except when fathers re deemed accountable. When mothers waste police time, obstruct justice, i. Contempt of court, perjury, child abuse and real offences the judges ignore. Even the bck time from fathers and place them in harms way. Where there is a possibility of conflict and abuse of men through the system most men re then forced to handover at RP residence to make things easier even against protest, placing fathers who only want to be fathers in compromising situations. I have even had a magistrate tell mom in open court that lateness can be used as evidence (after no consideration for non compliance of contact by mom) to further her application on orders that she felt weren’t to HEr satisfaction, from the get go. Ignoring her major and consistent history of contempt.
As a father I just want to be in my children’s lives nd try to Avoid any unnecessary contact with a woman who’s tried recuse me of my liberty through false allegations. Bug instead judges ignore evidence n try to force communications where unnecessary and also only enforced orders with liability which pertain to me.
It’s 2018 m n are hands on fathers, and better parents than women sometimes, sorry that the truth and factual. Ive seen proof where even when a father in rare cases has RP status mothers are still more supporte.
Don’t speak of law….. the family law courts are a joke and even worse a support child abuse system.
I used to believe I. Justice until I personally went through this. Funny thing is no lawyer can deny this… funny thing is police, child support, judges, lawyers, barristers, ministers, and so on are all culpable.
False Dv allowance without recourse has led to deaths by suicide which in criminal will be considered manslaughter. But in civil family and criminal no comebacks so women continue this cycle.
The sad part is DC women re the most hurt… who cares??!!! NOT THE SYSTEM..NOT THE FEMINISTS… NPD Parents feel free to act… you’re untouchable as criminals and child abusers…
So @ Famlioo if this act is a waste of energy then what’s the right course.. or is that being charged per the hour with you…
There are many people, throughout history, who didn’t think they were disciminating against a certain race, religion or gender, but in hindsight it seems they were in fact discriminating without justification.
You will hear women complaining about the gender pay gap, or how many female MPs there are in parliament. What should we tell them, I don’t see any discrimination? Perhaps we should look at the facts and find out if there is real discrimination, although that might be a little difficult with the family court as the information is so difficult to get.
But hey, I’m sure you’re right and history won’t take a different view.