This has not been an easy post to write. I have hesitated over the ‘publish’ button even after sleeping on it.
It has been an uncomfortable week for those who work in the family court and who are proud of what it can be when at its best.
In late November last year the President of the Family Division gave a speech in which he talked about family court handling of domestic abuse and the evolution over recent decades of professional and social understanding of what it was and how it could affect adults and children (see here and Family Law January issue at  Fam Law 19). Having set out the history, Sir Andrew said :
‘I am confident that every judge and every magistrate undertaking family law proceedings now fully understands that the emotional and psychological harm to be inflicted by one adult in a close relationship upon the other and upon their children can be of far greater significance than any particular physical injury that any of them might sustain on one occasion or another, and that this significant harm can occur even where there has been no incident of violence at all. Living in close family circumstance with an individual who exhibits domineering, coercive or bullying behaviour is a 24/7 experience. Even when things may be relatively quiet within the household, needing to tread on eggshells at every turn and living on tenterhooks lest there may be a further eruption must be and is enormously damaging. Those in such families are ‘groomed’ by the abusive member to keep quiet and endure their behaviour, rather than leave or complain to outsiders. At every turn, what I am describing is a wholly negative and most harmful environment in which to live.’
Later in his speech, the President said he was not complacent. He talked about the campaigns and clamour of concern about these issues of how family courts deal with domestic abuse. He said then we need to know more, and proposed further research (the TP wrote about that here).
Only a couple of weeks later, news emerged of an appeal from His Honour Judge Tolson that Ms Justice Russell had allowed. It sounded dire, but details then were sketchy. Now we have seen her judgment, it is pretty clear that the President’s confidence about ALL his judges was misplaced. This was an example of an experienced senior leadership judge failing to follow clear guidance on the handling of domestic abuse and vulnerable witnesses, failing to understand the basics of consent and coercion and disregarding relevant historic abuse.
Discussion about the outdated attitude and failure to appreciate the insidious nature of domestic abuse (not just the failure to understand the basics of consent) revealed by the judgment has been full of shock, outrage, and concern across both legal circles and in the mainstream media (see here for a sample). Rightly so. It is inexcusable.
Skipping back a little, last May I wrote in The Times that
‘A system that operates in private is also highly vulnerable to a collapse in public trust. That vulnerability exists whether or not campaigns and anecdotal accounts are representative or accurate. A collapse is upon us, and we must do something about it.’
Surely that must be true ten-fold now?
At that time I doubted that the anecdotal reports of things going regularly wrong in family court cases involving domestic abuse were giving us a full or completely accurate picture, and suggested that none of us could see or offer more than a partial view of what was really going on system wide. My own experience suggested that whilst things did go wrong, and there was inconsistency, they were improving and the systemic problems felt overdone, or at any rate jarred with my overall impression from 17 years of doing this work. But of course, as I recognised even then, the cases I see are all ones where my own input is likely (I would hope) to steer the case away from disaster. That’s why I said we needed to find ways of looking at patterns and stop relying on anecdote, whether from professionals or litigants.
All can agree this is an egregious example of one judge getting it wrong in one case. The court in that case has done a poor job of protecting anyone, whether child or adult. That any one judge should get it this badly wrong in any single case is disastrous enough, but is there a bigger issue that goes beyond this single appeal? We’ve seen the full range of views expressed as to whether this is illustrative of a pattern seen in other judges and other cases (or in other cases decided by the same judge), whether it is typical or atypical, whether it proves the prior complaints of systemic failure. Again, anecdotal comparison only takes us so far.
Russell J’s judgment confirms that the President of the Family Division has made a formal request to the Judicial College to build consent training into the training of family judges (incidentally, this is a curious loop since the person responsible for family training at the Judicial College is none other than Russell J). That nobody has twigged before that this would have been a good idea is an illustration of how myopic a system that is closed to external feedback can be. It should not have taken such an obviously, offensively, wrong approach to these issues (which sadly are the stock-in-trade for the family judiciary) to realise this was a training gap. The task is now vast : Allegations of sexual assault are not uncommon in family court cases. The number of judges (and magistrates) who deal with fact finding hearings about domestic abuse is vast. Even if a decision is taken to limit the training to a sub-set of lawyers who will then be ‘ticketed’ to handle domestic abuse cases involving sexual assault / consent issues, it will take time to design and roll out this training.
And the truth is the campaigners have been telling us loudly this was a problem for years.
Our response – my response – has to date been ‘not all judges’, ‘not all lawyers’, ‘not all social workers’… Which is true, but which misses the point. It is a sub-conscious defence of our own professional identity and integrity. It doesn’t matter if it’s not all judges if YOUR judge does this, or if your worry this will happen to you means you can’t face pursuing an allegation.
This is not just about one case. As Russell J clearly appreciated, we need to deal with the systemic issue that this one case exposes.
That one family judge of many could think this way cannot, statistically speaking, be a surprise, given how many of them there are. I’ve suspected such attitudes before in a few of my cases, though have never seen them spelt out in this way (the stark, express remarks of the judge made it possible, unusually, for an appeal to be pursued here). And my wider experience has reassured me that most judges do have a better understanding of abuse and consent issues and that these uncomfortable cases have been aberrations – older judges on their way to retirement, for example.
But. That isn’t good enough, is it? As Russell J so witheringly points out, if a senior leadership judge could not only think this way (and be so wrong on the law) but could also articulate it so directly without appreciating its significance and wrongness, then it is really unarguable that there is a wider issue and an urgent training gap. Because the system should not have allowed ANY judge to have approached such a case without someone checking that they understood these issues.
The lack of trust doesn’t just derive from judges getting things wrong sometimes (something no system that relies on human beings can ever entirely eradicate), it’s borne of the increasingly apparent lack of insight that our system has into its own weakness and the way in which we struggle to sift the meritorious complaints from the tendentious discontent that will always surround family courts. Which makes it a very dangerous place for the vulnerable to come to.
One argument is that the way the judicial system learns and self-corrects is through appeals. This is attractive but flawed. That this case has been ‘fixed’ by a successful appeal doesn’t answer these wider problems (I’m damned sure it doesn’t feel fixed by the woman who has to go through it all again and well, we’ll see when the Judicial College manage to roll out the training). Why should it be down to one brave woman to go through this to fix a system that has treated her this way?
In my Times piece I ended by saying :
Privacy is of little use to children if the family court is making orders that do not protect them.
Last week a research study about parental alienation and abuse was published. It relies on a sample of 40 cases drawn from 54 judgments on the topic published since 2000. To contextualise this, there are over 40,000 new ‘private law’ cases every year, of which a significant proportion involve allegations of domestic abuse. That small sample size inevitably limits the utility of any such research, however thoroughly conducted (I haven’t read it yet, the point I make is a point of principle)(Although this new research is unfortunately not open access, the cases up to 2018 were summarised in a Cardiff University report, which is freely accessible).
If judgments from fact finding hearings were routinely and anonymously published as the President’s 2014 Guidance on the publication of judgments instructed they should be, these issues would have potentially been far more visible sooner (notwithstanding that the guidance applies directly only to judges above a certain rank). If ever there were a demonstration of why there is public interest in the publication of the bread-and-butter private law judgments where there is no particular legal novelty, it is this. Let’s see how many judges are out there who struggle with the basics of consent or who do not appreciate the insidious impact of coercive control. If it is few – thank goodness – if a more widespread pattern emerges, well thank goodness we know and can act.
Publication of judgments and media coverage won’t fix these problems, but it seems we need the sharp sting of the disinfectant of sunlight to shock or shame us into action. It’s uncomfortable, but maybe that is how it needs to be. There is much that is strong and true about the family court, and many skilful compassionate judges and professionals who keep it going and who keep families safe – notwithstanding the relentless and sometimes unfair criticism that comes our way – but our pride in what we do should never stop us from hearing and acting on feedback that might reveal real problem and opportunities for improvement.
All that is visible to the public at the moment is the ineptitude of a system which is deaf to the feedback that is so volubly given by the public.
Feature pic courtesy of Flood G. on flickr (creative commons – thanks)