Control in the courtroom

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.

Overall

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.

9 thoughts on “Control in the courtroom

  1. You are ignoring the elephant in the room: the complainant who is legally aided and can subject the alleged perpetrator to cross-examination while the alleged perpetrator is not allowed legal aid and cannot cross-examine the complainant. Well may he, usually he, not be seen at his best.

    When LASPO was passed the family judiciary, first instance and appellate, should have said

    EITHER

    that the right to test the evidence agains you by cross-examination is fundamental to justice, if legal aid is refused it must be in person, and if that causes distress, blame Parliament

    OR

    that a level playing field requires that neither party can be cross-examined and that the court must make what it can of the evidence in chief and apply the burden of proof.

    The criteria for exceptional funding would in either event have been quickly amended to conform with Article 6.

    Unfortunately, in the language of many clients: they bottled it.

    • Not ignoring it at all. Am just not writing a post about LASPO and its ills.
      Although I dare say that this sentence encapsulates the phenomenon you describe : ‘and often two parties who for various reasons don’t ‘perform’ in a way that meets the stereotypical assumptions about abuser and victim.’
      Point of fact – when LASPO was passed the first instance judiciary said firmly a number of times that these issues were problematic, including in Q v Q which I was in and in which we raised article 6 (and other ECHR points) – but in Gudanaviciene the Court of Appeal essentially said that Parliament had legislated quite intentionally and their hands were tied. I think these days we are all quite familiar with the principle of parliamentary sovereignty. Responsibility here lies with parliament not the judges.
      Since then many have been working towards the remedying of this problem by finding workarounds in individual trials and by pushing for legislation – the domestic abuse bill keeps being lost to prorogation etc but if it ever is pushed through it will (to an extent) deal with the issues that you flag.
      Second point of fact – I think it is too broad to suggest that a post laspo alleged perpetrator is not allowed to cross examine. S/he may be allowed to do so, depends on the circumstances – and if not allowed to do so directly this does not mean that there is no challenge permitted at all. It may be done by proxy – questions asked by judge or G’s sol etc etc – none optimal but not quite the same as the right being taken completely away. Under the bill an alleged perpetrator will be appointed a lawyer to formulate and ask those questions, but they won’t be involved throughout the case, making that too a tricky task with likely imperfect results.

  2. Wouldn’t it just be easier if polygrap tests were introduced. OK, they’re not 100% reliable, but stats say over 90%. Time and time again, we have seen or heard, that the mother, has made spurious allegations against the father and has made phone calls to the Police to raise concerns about domestic abuse and that the father has verbally abused her in person on that day, with the actual truth being that the father hasn’t been anywhere near the house and know’s too well how the system and some mothers play the victim to get legal aid. And of course, we all know Legal Aid was given out very freely at first, then thankfully Legal Aid caught on to the fact that domestic abuse claims had risen very quickly.

    What we all know is, that domestic abuse is wholly bias towards the female and it is usually her word over the fathers. This I have seen and heard many times. More to the point where I have previously suggested that the father, upon picking up his children, must video record it. In one case, mother kicked off and called the police. He was arrested, albeit he had said nothing. Video evidence was produced by him at the station and he was released without charge, but suggesting she is arrested for wasting police time, which clearly didn’t happen.

    Judges cannot go on what is being spouted, nor can they go on presentation, purely because such is an emotional thing in court as you say Lucy.

    Domestic abuse will never get addressed correctly until it is accepted that it is bias towards the female and that the figures spouted by Womens Aid, are grossly wrong, purely on the basis that so many men, will not report domestic abuse because they are a man. Womens Aid ignore stats when provided to them. Furthermore, in many cases, although it has been seen by the police that the man is clearly beaten up, the man won’t press charges against the female. We can also see the bias in the number of refuges for women compared to men. In my own research, of which I contacted every council in the UK, it is wholly not recognised that a man can be a victim, or should I say a heterosexual man, but recognised for the gay man. Yes, a certain council in London has refuge places for gay men, yet not heterosexual. Stats say 1 in 4 women and 1 in 6 men are victims, yet if the truth be really known and everyone were to report such, I dare say it would be a lot closer, but the Government won’t have that, nor will various services. It must also be addressed by outreach services that domestic abuse can be on all genders, albeit a certain outreach service I have contacted posing as a female and male, have been given different responses. In the man’s case as a victim, I was told to leave the house and file at court to see the children, yet completely different as a female victim! I wont name the outreach service in question. We also have to look at The Home Office and their bias. Their bias in that they have a publication called Violence against Women and Girls (VAWG), yet when asked by myself, they dont have any copy of Violence against Men and Boys and have no intention on making such publication.

    • Easier – maybe. More reliable – highly doubtful.
      I’ve never seen any stats that suggest polygraph tests are anything like 90% accurate but would be interested to see them if you can provide a link.
      More importantly it all depends on what you mean by truth. All a polygraph test tells you is that someone is telling the truth as they see it. The reality is that many witnesses (not just in family) are inaccurate and wrong even though they are genuinely telling the truth as they see /recall it. It just doesn’t help in the majority of cases.
      You give a lot of examples of bad mothers gaming the system – but quite apart from being quite myopic they don’t all stand up to scrutiny. A mother who asserts that a father has been to the house when he hasn’t won’t be able to produce proof that he has been – and won’t be able to prove her allegation. It’s her burden for a reason.
      I don’t accept your proposition that ‘we all know’ legal aid is biased in favour of women. For every one of you there is someone saying the exact opposite. I’ve had female clients I’ve thought were truthful disbelieved either because they were too traumatised to articulate what happened convincingly or because they had recovered enough to look their perpetrator in the eye and then didn’t fit the stereotype of victim. I’ve had male clients who have been the victim of knee jerk reactions and assumptions by police officers and judges at ex parte hearings later proved to be innocent, and I’ve had male clients who were highly skilled at presenting with a veneer of respectability but who ultimately were shown for the manipulative person that they truly were. I’ve seen and represented / opposed the full range. It’s mixed.
      As for the differential patterns of services and support for male as opposed to female victims – I acknowledge there is such a disparity, but in part that is because domestic abuse is gendered in its nature. It is perpetrated by and against both men and women, but the way it works and is played out and the power that abusers hold is profoundly gendered in many cases.
      I don’t expect you to agree with me on this, but I’m not publishing your comment without some balance by way of redress.

  3. “We’re pretty good at lying; we’re very bad at lie detecting,” Richard Wiseman (University of Herefordshire I believe)

    I’m not suggesting that those appearing in the family court lie (I think people often just have v different perspectives) I have found Richard Wiseman’s research interesting on how bad we are at detecting lies. & that is without the complexities of psychology/truama which typically present in the kinds of cases you discuss.

    We think we’re good at spotting deceit, but when you get two people into “the lab and show them one video where a person is lying and one where they are telling the truth, and then ask the participant which is which, only around 50 percent of them will get it right. And that’s true of police, lawyers and even judges. There is just one group that out performs everyone else, and that’s prisoners.

    https://www.bbc.co.uk/programmes/articles/3wmwHhkjMb6NPp6LmfGCF9V/how-to-tell-if-someone-is-lying-to-you

  4. Pete Burtenshaw

    Absolute rubbish. Here in Guernsey fathers are the target parent. The magistrates are not some innocent bystanders who are not super human, they are corrupt, free masons privileged up to their eye balls and FREE from the law of the land. They destroy the lives of children and fathers and have done for decades in Guernsey..they know they are not accountable to anyone so they abuse their powers even more..from the head of the judiciary down..all corrupt..

    • I’m afraid I can’t make any comment on Guernsey. And although many of the principles will apply to fact finding in any jurisdiction, my post isn’t about Guernsey or about corruption generally but about how to make a good decision where facts are disputed.

  5. Thank you for your thoughtful article, Lucy, that deserves a re-reading.

    Demeanour can be very misleading, whichever way one looks at this. You will be aware of this case: http://www.bailii.org/ew/cases/EWCA/Civ/2019/799.html Local authority re A and others

    …where the Court of Appeal reminded judges that demeanour is only part of the evidence that judges have to consider. I remember years ago, hearing a Crown Court judge say that he had years of experience in knowing when someone was lying or not and I still wonder how he could be so sure. If we all could tell when someone is deliberately lying then the world would be a very different place. There would be fewer con artists, for a start. What we think of as straightforward look – you in the eye honesty – is how people are deceived. And often it isn’t really lying at all, it can be as much self- deception as anything and that, of course, will come across as honest conviction.

    May I also point out that social workers are subject to the same pressures and strains? Many of them have little experience of being cross – examined and they are rarely shown the same understanding given to lay witnesses. Sometimes they are genuinely frightened about giving evidence, remembering everything they have to recall under pressure and how they will cope with the requirement to articulate the local authority case. Sometimes they have never given evidence before. but no-one will know that and for all the advice that we lawyers give about how to approach this, we have rarely been in the same situation ourselves.

    I think this is one of the reasons why care proceedings are supposed to be investigative as much as adversarial.

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