Logically speaking

This blog post is a logic experiment. It’s not about individual cases. It’s just an attempt to work through some possible consequences of our shifts in practice over the last few years in cases involving domestic abuse, and what that might – must? – mean when you work it back and think about what we were doing before.

 

So. We’ve changed a lot about how we do domestic abuse. We now have a more sophisticated, nuanced and all-encompassing definition of domestic abuse, and in particular of coercive and controlling behaviour…A better understanding of post-separation abuse and of the ongoing impact of abuse on victims and what that might mean in terms of how victims present and respond (busting the myth of the ‘typical victim’)…More and more sophisticated special measures and a developing understanding of vulnerability and the potential for re-traumatisation to impact on best evidence. Soon we will have the long awaited prohibition on cross examination (more on that when the commencement date is finally announced – I have thoughts!).

 

As a system, we’ve made these changes because they represent our current understanding of best practice and of justice. Whether or not you subscribe to this change in culture, as a system these changes have – logically – been adopted because it is perceived that something was lacking before.

 

So the fact of change suggests that we weren’t doing things as well as we could have done before (it’s certainly not being done for expediency because doing things the new way takes longer and costs more). I suppose an alternative view is that changes are wrongheaded and unnecessary, and that therefore to work backwards in order to conclude that what went before is wrong or circular. For the purposes of my logic experiment I’m going to acknowledge that but give the changes the benefit of the doubt (Others can argue the changes are wrong or unnecessary or go too far if they wish).

 

Also in recent months and years, a number of appeals have succeeded where best practice as we now understand it has not been followed – in several cases decisions adverse to those complaining of domestic abuse have been remitted for rehearing so that the court can reconsider whether to make findings of abuse once the proper measures are in place. In some cases that has resulted in findings being made the second time around that weren’t before. In others it hasn’t materially altered the outcome.

 

It should be no surprise to anyone that a system run by humans and based on human judgment is sometimes wrong. It is an inevitable feature of any judicial system. The best we can hope for is that the frequency of error is reduced by a robust process, and that when it does go wrong the appellate system captures and puts right at least some of those errors (but again, realistically it can probably never catch all wrong decisions).

 

For lawyer and judges it is possible (if not always easy) to separate out legal ‘truth’ from actual truth or lived experience. We know we have to operate on the basis of a system that does its best to reach as close to the truth as it can as often as it can. But it isn’t us who have to go home and live it…to go home and remember or re-experience the things that happened but which the judge decided weren’t real. Whether or not a litigant accepts the findings of the court, the process marches on, and does so on the basis that the court was right and has ‘found’ the truth. Rarely, the court will reconsider findings, but generally only in the light of compelling new evidence.

 

We’ve always known these cases exist: Cases where the judge says X happened and one party can’t accept that factual basis are frequent. Sometimes it is easy to see or believe that such parties are just in denial of an obvious and uncomfortable reality. But sometimes the challenge is more difficult to ignore as time goes on and more evidence accrues.

 

I have increasingly wondered what the changes in our approach to the evidence of vulnerable witnesses complaining of domestic abuse might mean for how many of those non-accepters might in reality be misunderstood victims as opposed to individuals who just can’t accept the consequences of their actions or who can’t accept when they’ve been caught in a lie.

 

Crassly following through on the logic – if all the change, guidance, resource and legislation was really necessary (and I don’t for one minute suggest it wasn’t) this must raise the prospect that in at least some of these cases the court got it wrong because it wasn’t doing things in a way that facilitated a victim to prove his or her truthful allegations. That victims have been told to accept they aren’t victims, that their experiences don’t matter, perhaps even that they maliciously made it up.

 

I don’t know how many of these cases there might be. Maybe hundreds, maybe one. But logically, if the changes mean anything they must include the likelihood that the court got it wrong in the past at least some of the time. I doubt the true number is zero.

 

So, who are these families? What is happening for them now? This isn’t hypothetical and it isn’t ‘historic’ (something we often say when we want to turn our back on something tricky). These changes are relatively recent (the last 3-5 years, being generous). Many of the children whose parents were involved in fact finding hearings in the last 3-5 or even 10 years ago are still either involved in proceedings or working to orders made by the court following the court’s conclusions on the topic of domestic abuse (or its earlier decision such issues were not relevant). Their children may not yet be adults.

 

How many of those cases involve (or have involved) allegations that a parent falsely raised domestic abuse as a means of scuppering contact, or that their insistence that contact is not safe is part of a pattern of alienating behaviours? How many of those children are saying things about their other parent or their experiences of contact that aren’t being heard because their resident parent has been found to be unreliable and their words are treated as led by that parent? How many of those children have been moved to the care of their other parent?

 

I don’t know the answer to that. And nor do I know if or how we could realistically identify the cases the court got wrong, years down the line. Or how we could even begin to unpick things in the cases which we do identify.

 

I do know that there are lots and lots of parents (mostly but not exclusively mothers, in my experience – both actual clients and other parents I encounter on social media or elsewhere) who say that their experiences of domestic abuse have been disregarded or never really ‘heard’ by the court, and who say that they have been penalised for attempting to act protectively. Some of them will be in denial, malicious or misguided or over-anxious etc etc. But in some cases a read back over historic papers to see how allegations of domestic abuse were (or weren’t) dealt with is, frankly, alarming. So, whilst I’ve never deluded myself by thinking that the courts are infallible, I have less faith than I once did about the low frequency of error. I don’t assume here that what is said by an aggrieved parent is necessarily accurate, or that the court is incompetent and often wrong. Family Court judges do their best with the knowledge and resources they have, but we simply understand so much now that we just didn’t take into account before. Here when I say ‘we’ I mean judges, and social workers and advocates – including myself in years gone by.

 

Nor am I suggesting in this logic experiment that we should (or could) rush off to reopen lots of cases. Apart from the huge practical, resource and evidential difficulties, legal certainty is important. There are good reasons why the process constrains second bites of the cherry.

 

In many cases, as it happens, families have moved beyond their fact finding decisions (even if it was ‘wrong’) and found an accommodation of sorts. I dare say many would not be enthusiastic about a re-run of their family court experience (even with special measures many are reluctant to go through it a first time). But I do see cases from time to time where the ramifications of a decision years ago that looks (with the benefit of hindsight) somewhat questionable, are still very much alive. They resurface again and again, and in some abusive behaviour appears to be continuing unseen, both through and beyond proceedings.

 

It’s a comforting conceit, that the court is almost always right, that we can’t do better than balance of probabilities as a proxy for truth. It makes us feel better about the job we do. But as the process improves it inevitably exposes how imperfect it was before. And that is, quite rightly, very uncomfortable – if you are brave enough to confront it. We should not close our minds to the possibility that in some cases the court didn’t get it right, and in those cases the system must be prepared to look again – or at least to consider it with an eye on the fact that our continual improvement is evidence of our past imperfection.

 

I don’t have any answers to this conundrum. Only questions.

 

P.S. I have some other posts on related topics in the pipeline, but am struggling to find time to get them all up and out. Watch this space.

6 thoughts on “Logically speaking

  1. If you are thinking of reopening cases, begin with those where one party (guess which) was legally aided and the other (guess which) was ineligible – and was not allowed to cross-examine in person. Most of the victims of that abominable practice wouldn’t bother – they’ve lost contact with their children – but where money is also concerned they might, and with a lawyer to cross-examine on their behalf the result may be very different.

  2. The general problem (see below) is wider than just a problem with DV-related findings of fact. And, even when the problem is manifested in the making of findings of fact concerning alleged DV, it cuts both ways. It is a great deal more distressing and damaging to one’s interests and reputation to have been found in court to have perpetrated DV when one hasn’t (and perhaps was a victim who chose not to complain of the DV one suffered, for the greater good), when one knows that one wasn’t a perpetrator of DV and had watched an adversary, a former or present loved-one, commit perjury, than it is to be a victim of DV who is lumbered with a finding of fact one knows was mistaken that one wasn’t a victim. And, because of widespread faith in the feminist doctrine that DV is something predominantly inflicted by males on females, even though this is dscredited by studies, a woman who has wrongly been found not to have been a victim of DV will find plenty of support from new friends who are willing to believe her allegations despite a finding of fact that the allegations weren’t true. I imagine even you would do that for a client in tears, rightly so.

    This is the general problem: For any finding of fact “on the balance of probabilities”, the court implicitly finds that there may be a significant probability (albeit less than a half) that the opposite fact from the fact it has found may be the truth. But typically a court will promptly forget that, and proceed to make orders based upon a certainty it knows it doesn’t have.

    The court sometimes even makes further, contingent findings of fact, assuming that an earlier finding of fact is correct, even though it should remember that it might only have as little as a 51% probability (subjectively assessed, not objectively measured) of being correct.

    Mathematicians and statisticians simply have to calculate the probability that both A and B are true according to a formula proven to be correct in theorems, which involves multiplying the probabilities, without first rounding them up to one whenever they are more than a half, or down to zero when they are less than a half, as judges do.

    Judges don’t correctly manipulate arithmetically their made-up or guessed-at probabilities, in the accurate way in which mathematicians and statisticians must manipulate their empirical probabilities lest their work be in vain. They find that A is true “on the balance of probabilities”, and then proceed to consider whether B is true too, in the light of A being incontrovertibly true, which they have already admitted it isn’t.

    That is the general problem with civil and family “justice”, and it affects far more than just DV findings of fact. The problem is institutional. Most judges need remedial maths lessons before they are allowed to use the word “probability” again.

    A related problem seems to be that in their judgments judges try to avoid giving grounds for appeal. Consequently, they never say, softly, to anybody, no matter how much is at stake emotionally for them, “I’m sorry if I’ve got this wrong, but I am forced to make a bit of a guess, on the balance of probabilities. I was sure one of you was lying, because your evidence contradicted one another’s. I couldn’t be sure which of you was lying, but I don’t have to be sure to reach a conclusion. I estimated that it was slightly more likely to be you that was lying, sir, than her. Please don’t take it to heart.” A bit more of that sort of humility would make family court judges less unpopular, and would demonstrate due regard to the need to foster good relations between men and women, an aspect of the courts’ Public Sector Equality Duty. Instead, judges are routinely offensive towards litigants, as a crude means of being defensive of themselves.

    I hope that was logical enough for you. I’m sorry I don’t have much in the way of answers either.

  3. Im very grateful for this inspirational post. Im also a father and very grateful that t you also acknowledged that i could be a victim. My judge refused point blank any of my evidence that detailed mine and my sons terrible abuse and the judge even criticised me claiming victim status. If the lady judge had just watched one of my film of abuse it would make her understand the years of savage abuse that me and my son continue to suffer. The judge simply empowered an abuser with the process and the outcome. Btw one of the orders was that i must not discuss my case with anyone. Verbatim. Im a tough chap and ive seen many things. Ive been to war and seen death and destruction and lost freinds and bodyparts. Nothing ive seen damaged me like that inhumane living hell of the court process.

    • I can’t remember where I read this, but I read not log ago that there had once been a Parliamentary question as to how many parents had been imprisoned for discussing their family court cases in a particular twelve-month period, and the answer given was a little over 200. I simply don’t understand the rationale for such unrealistic orders. Whom do they benefit? Certainly not children.

      • I doubt it is anything like 200. I can think of a couple of contempt hearings on this topic and they rarely result in prison. All the judgments are available on judiciary website (Though they are quite hard to navigate/search) as these are public hearings. It is possible there were 200 cases in which it was *alleged* there was a breach of privacy rules, but even that seems higher than I’d expect. I’m sure it is happening quite often (one only has to scroll through twitter or facebook) – more than 200 x a year for sure – but it is enforced far less often than it is happening.

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