System Error

pic courtesy of Flood G. on flickr (creative commons - thanks)

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 [2020] 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)

41 thoughts on “System Error

  1. This made me cry. And that is a luxury I have not been able to afford since our first foray of many, into FC in early 2013.

    You say:
    “ And the truth is the campaigners have been telling us loudly this was a problem for years.” Year after year after year after year ad infinitum, and yet, AND YET you and the profession ONLY start to own this, not because of us telling you for decades, (because we’re *only* parents) but because a [I’m lost for words to politely describe the paultry specimen of a human being which this man is] senior judge makes such a flagrant public ‘**** up” that the truth can no longer not be owned!!

    Can you imagine the ongoing parental and child grief as well as the fear and ongoing abuse that has now been unvielled before your eyes now that those opaque scales of justice are being lifted from your gaze which have hidden the truth from you all these decades?

    Where has been your basic humanity, let alone your understanding all these years? Buried underneath your *professionalism* and belief that you and you alone are right by virtue of your profession, along with all the others engaged in such ‘virtuous’ work.

    Let this teach you all, that commitment is NOTHING without humanity. Is NOTHING without understanding. Is NOTHING without the truth which is ignored for the sake of expediency, ego and reputation.

    So, the question remains: what IS in the best interests of the child?

    Is it, can it, EVER be fully served in a profession which lacks even the most basic understanding of abuse. Can it even be partially served under such circumstances, when you don’t even fully understand and accept what your shortcomings are let alone what to do about them?

    How now, will you [All] deal with the awful dawning realisation of this truth? the truth that so many parents are so terrified of what will happen, what does, what has been happening for years, when they report abuse, especially familial abuse to the LACS?

    Do you really REALLY understand the awfulness of the Catch 22 ‘damned if you do and damned if you don’t’ dilema facing the parent with residency? Having to make that child go to contact with an abusive other, just to comply with the court order, so they don’t end up getting accused of emotional and parental alienation, and the ultimate risk of that child being taken from them and residency given to the abusive parent?
    Do you know the figures on this? How many children this is affecting every single day of their little lives? Nope, you don’t. “Cos let’s face it, it’s case concluded and onto the next one, isn’t it? Do you really understand why self harm is rising, even amongst primary age children, many times because they are trapped into this exact scenario by the courts?!

    Do you even have a concept of how many children, right here, right now, this very weekend are enduring overnight unsupervised contact with the abusive parent not only with the consent of the court, but BECAUSE of the court. Can you really imagine that distress? That fear? And it’s regularity and frequency? How it is the Sword of Damacles over their entire life.

    You say:
    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.

    My God, don‘t make this about YOU, either individually or corporately. It’s about the children. Children and their mothers condemned to ongoing state/court instigated abuse which does not end when the child is 18. it NEVER ends. The experience ends. But the effects never end, as we see so clearly in Prince Harry

    NOW is the time to wake up! For pity’s sake. For the children’s sake. WAKE UP. Listen to the children. Let the children’s voices be heard directly in court. Re-educate and retrain the judiciary. And end the secrecy! How can parents and indeed the children prove their truth when they are silenced in favour of the protection of social workers, judges and other so called experts?

    What good are you doing, when the outcome is ongoing harm to the child?

    Is it any wonder that there is such a seismic loss of confidence and trust in both LACS and FC?

    I can have no sympathy for how you are feeling for it can never ever match what the children are feeling and enduring.

    BTW, the ‘you’ in above is you and the generic you.

    • I understand you are angry.

      FWIW the ‘you’ here “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.” isn’t me or lawyers. It’s the parties.

      • It’s grief mainly. It’s a grief that never leaves. A grief for children still suffering when FC was supposed to protect them. An anguish in knowing that their experiences will never leave them, and the mental health problems so many are suffering because of this ‘protection’ by the FC. An anguish that means that even when you start to talk even a bit about it to anyone, you can’t because despite your best self control, the tears start to flow and you have to try and choke them back down where they feed an inner rage about being so helpless to stop what’s still happening to the children, and impotent that you can’t even explain to anyone the full situation and circumstances to anyone because of the FC secrecy. I wonder what you would do if you were in this situation. Would you make your two boys go to court ordered contact with an abusive other? Or would you stop contact and tell the truth as to why you had stopped it, knowing that that truth had already been known to the court, yet they ordered the contact anyway? Knowing that there was a great possibility you’d get accused of parental alienation? Knowing that you’d more than likely then get accused of causing your sons emotional and psychological harm? Knowing the abusive other could then be given residency of your sons as a consequence, when all yopu had done was tell the truth because all you wanted to do was to protect them. And knowing how much worse abuse they would then suffer if they were living with that abuser 24/7? So yes, I am angry. I can’t deny it and wouldn’t try to. Angry that the system fails and the victims of that failure are the children. Grief stricken that those little voiceless victims grow up so scarred that they are affected for life. How much longer? How many more children when it has already been in the tens of thousands? Thousands of parents every day having to continue to pick up the pieces. Every day trying to ameliorate the pain and the anxiety and depression of the children. All because of the ‘protection’ afforded the children ‘in their best interests’ by the judgements of the family courts. I wouldn’t be a normal human being (let alone parent) if I wasn’t angry. And, if the judiciary aren’t likewise angry about this whole shambles which crucifies so many children, then I question their right to consider themselves human, let alone fit to make ‘in the best interests of the child’ judgements. Most of the time, I am very good at being controlled and expressing myself with moderation because that’s the way to get ppl to listen to you and to get your point across. However sometimes I have my bad days, when the pure frustration of not being able to back up your point with full details because of FC secrecy takes the lid off the anger. Would you like to live your life like this? It’s not beyond the realms of possibility that you could one day yourself even end up entangled on the other side of the FC debacle. You wouldn’t be the first barrister. Look at Natasha Phillips. FC doesn’t just happen to the children of uneducated, poor or vulnerable parents. And when you see how traumatic even educated and professional parents find their experience in FC, is it any wonder it crushes and even kills less able parents. Each FC case is truly a matter of life and death and after FC, for many participants and their children it is at best, living a half life somewhere between life and death, until you do die.

    • Pete Burtenshaw

      Excellent posts on this thread..really thought provoking posts..unfortunately the corrupt practices and lawyers, social workers, psychologists and judges are untouchable both in the UK and Guernsey..i know of one father spending £500,000 fighting to see his children here in Guernsey..thats the tip of the iceberg..lawyers regularly lie in court with the full backing of the judges..fpas staff regularly commit perjury but are just thanked by the judges..male suicide in Guernsey is higher then the UK per head capita.. nothing is done..apologies for my spelling and grammatical errors in my post..

  2. Could it be that familoo is beginning to believe that “justice must not only be done but MUST be seen to be done?”
    Miracles do happen……………………

    • Oh don’t be so supercilious Ian. As you well know that has been a drum I’ve been banging for years. I set up a charity to promote that specific aim! There is no change on that front.

      • Do you now say familoo that parents who have their children taken from them should now be able to protest in the press or on line naming themselves and their kids? Are you actually now all for free speech and freedom to protest against a perceived injustice???
        I have not seen the transparency project or any other charity advocate this………….

        • I don’t say that there should be a free for all without regard to childrens’ privacy, no. I never have. I have always said there needs to be greater transparency and sensible relaxation of the restrictions on what can and can’t be said or written about these cases. And the TP has taken a similar line.

      • Well as long as you support jailing mums who protest publicly when their babies are taken I cannot admire your transparency charity;Where is the democratic right to protest????
        Similarly as long as judges say in court (without being asked )that leave to appeal is refused without revealing that litigants in person can in fact ask for permission to appeal they are deceiving poor bereft parents by giving the wrong impression.
        Agreed these requests can now be summarily dismissed as being “entirely without merit” without any oral hearing but I certainly find that no improvement at all !

        • *Sigh*. I have not ever said such a thing. I’d rather nobody was jailed. However, some campaigning and protest is more responsible, child focused and fact based than others…
          As for the rest of your comment I’ve already dealt with this in a near identical comment from you earlier this week. If you keep posting the same comments I will just bin them. It clogs up the thread and is no use or advantage to anyone.

  3. Pete Burtenshaw

    My God, I have severe concerns with respects the gender based discrimination towards fathers in family courts especially in Guernsey..we are totally totally helpless in being victims of our human rights being abused and our childrens human rights being abused. 99 out of every 100 fathers who have to fight to see their children in the Guernsey family courts are alienated or worse face prison having Penal Orders found against them. You are very lucky in the UK. You have a judiciary who is headed by sensible people. In Guernsey our head of the judiciary soon to retire is the Bailiff [edited] our CAFCASS is called FPAS is so rotten and corrupt its scary we have UK psychologists paid hundreds of thousands to compile false reports again st the father, we clergyman in Guernsey who are doubling up as psychologists who also are paid thousands to write the same discriminationary reports..Fqthers in Guernsey need a life line..we have no recourse or fair and balanced system..its run by corrupt lawyers, fpas and judiciary…count yourselves lucky you dont live in Guernsey

  4. HHJ Toulson is an extremely experienced and capable Judge, not fallible of course, but its very concerning to read the High Court Russell LJ unleashing such inflammatory remarks. This is unfair and breeds disrespect for another Judge.

    Russell J was herself subject to criticism for gross errors for sending a father to prison for 18 months, the father who had been unrepresented in the circumstances. The father successfully won human rights damages against the Lord Chancellor following Russell Js judgement. The Father won in the court of appeal after losing in the high court regards the damages claim

    This is the Court of appeal decision, Cited as: [2017] EWCA Civ 237, [2017] 4 WLR 162, [2017] WLR(D) 259, [2017] 2 FLR 1429

    it was found by the court of appeal that the following mistakes made by Russell J were not only serious but gross errors entitling F to damages:

    1. Including the following recital (list of facts) in the 19th March order: “And upon the court repeating to Mr LL that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the respondent father to make application to the Singaporean court to ensure M is returned to this jurisdiction pursuant to this Court Order”.

    2. Failure to recuse herself on the grounds of apparent pre-determination.

    3. Requiring LL to give evidence, instead of warning him that he need not give evidence; then plunging straight in to cross-examination without permitting any evidence-in-chief.

    4. Conflating non-compliance with the orders of 14, 19 and 21 March with deliberate non-compliance; relying upon LL’s failure to secure M’s return to the UK by 28 March by means of proceedings in the Singapore courts, when that was not possible.

    5. Giving LL no opportunity to make submissions in mitigation before the judge passed sentence.
    But argyed that these errors did not cross the line. They were not “gross and obvious irregularities”. They did not give rise to a “flagrant denial of justice”. Nor was Father’s detention arbitrary.

    the Court of Appeal, Jackson LJ disagreeing with the Barrister for the Lord Chancellor and the earlier High Court judge who had refused father human rights damages following Russell J decision, said (see para 99-112):

    “For a judge to include a veiled instruction within a recital, which cannot be complied with, and then to commit the respondent to prison for non-compliance is a “gross irregularity”. All the more so, when one takes into account the other linked errors. The word “obvious” in this context means obvious to anyone familiar with normal court procedure. In that sense all five errors enumerated above were obvious.”

    He added:

    “Although I regret the need to make such a finding about any High Court judge, I consider that Russell J’s errors did amount to “gross and obvious irregularity”.

    I just thought this interesting about Russell J.

    Despite the CA findings and overturning Russel J’s decision, it was also acknowledged by the CA that

    “In this judgment, it will unfortunately be necessary to assess the consequences of what are agreed to be serious procedural errors by a Family Division judge. I should, therefore, acknowledge at the outset that the judges of that division undertake some of the most arduous and emotionally draining cases that come before the courts. Their task can be a lonely one. Feelings run high in many family cases. People who are otherwise entirely reasonable may become aggressive or obstructive litigants when contesting the future arrangements for their children. These are the conditions under which the judge in this case was seeking, in good faith, to discharge her duties.”

    Russell J could have therefore been less scathing of Toulson given the grace and benefit of doubt she was given by the CA. NO she couldn’t be gracious. She was clearly very angry in this decision against HHJ Toulsons judgement.

    I would need to see Hhj Toulsons judgement in full before commenting further. I would not be surprised if a retrial wd produce the same result.

    My worry is that emotions are running very high when it comes sexual assault allegations in the current climate.

    • “HHJ Toulson is an extremely experienced and capable Judge” – don’t agree with you there. He recently issued local guidance that the court day should not start before 10am and should end at 4:30, the court should rise for an hour at lunch and people shouldn’t send or answer emails before 8am or after 6pm and have the weekend off. This at a time when the Family Court is experiencing exceptional workloads and delays are mounting in cases involving children. He doesn’t suggest any approach to address the workload or reduce delays so the welfare of the children involved could be improved.
      This is a judge who earns over £150k/year, I would expect him to be willing to work slightly longer hours.

      • spectacularly missing a number of points again there. The problems are made worse when people are dropping like flies due to stress related illnesses. These sorts of measures are being introduced up and down the country to ensure that professional wellbeing is such that we can all keep going.

        • With all due respect, when Robin Tolson QC was working as a barrister he made hundreds of thousands of points a year from Legal Aid. One year he made £364k, another over £200k. If we paid these people a little less from taxpayer’s pockets, maybe we could afford more judges and court staff to clear the backlog (and it wouldn’t take much) and reduce the delays. Once we get on top of the problem, it’ll be much easier to manage.
          It’s also interesting to consider the effect of Sir James Munby’s reforms and the Child Arrangements Programme. The idea was to close down cases much quicker and get them out of court, in the vane hope that parents (particularly those who control the children) would understand their obligation to cooperate and co-parent. This has led to courts disposing of cases with poorly constructed orders which are deliberately non-prescriptive, leading to constant arguments over dates and times etc.
          Something like 25% of cases return to Family Court within 1 year for enforcement, but that “feedback” doesn’t seem to be understood. With enforcement of orders at a jaw dropping low of 0.5% (yes half of one percent of applications for enforcement actually lead to enforcement) and Mr. Justice Stephen Cobb (the author of the latest flawed and frankly discriminatory PD12J and his attempt to dis-apply the statutory presumption of involvement brought in by the Children and Families Act 2014) suggesting the C79 form should be abolished because people applying for enforcement actually want a variation (words fail me!) It’s not just one Family Judge we need to worry about, it’s the entire apparatus of the Family Judiciary.

          • Whilst I could make a response to all the (largely misplaced) points you raise above I think we are getting somewhat off topic and I have other things to do today, so I won’t.

  5. HHJ Robin Tolson QC is the same judge who refused Tini Owen’s a divorce because her grounds didn’t amount to unreasonable behaviour. That prompted a change in the law. Sadly not all HHJ Tolson’s mistakes end up making the headlines.
    Interestingly the Judicial College won’t disclose the contents of their training on domestic abuse because they claim not to be subject to Freedom of Information requests.
    Judges should be trained, but the public should also know how the are being trained and what they are learning. I would be particularly concerned if an organisation that denies men are victims, such as Women’s Aid, is engaged to provide any training what-so-ever.

  6. Obviously this is reliant on anecdotal evidence & that has its limits, but I have never heard anyone involved in social work or law sharing anything like the views of this judge. I am interested and confused about why this one case now has you thinking this is systemic and widespread?

    • Helen, I think the answer is in the piece if you read it carefully. But isn’t the fact that we have just discovered an experienced leadership judge responsible for a whole court area (covering half of London) has expressed these views a massive red flag? This is not some ancient, about-to-retire, lower tier judge in a backwater court. If this has slipped through the net in our leadership judges *without anyone noticing or acting*, there is a possibility that the problem is more widespread. I don’t think that the fact that neither you nor I have encountered anything this direct before (though I’ve met other judges who do seem to hold the same views but who express them more diplomatically or find ways to avoid expressing their views) is enough for us to all be able to say ‘It’s fine. It’s just one’. Because the truth is there is nothing built into the system to identify or deal with this stuff – apart from appeals. And we all know how hard it is to appeal a fact find.

      The point is Helen it might not be widespread. It’s probably not, based on what you and I see. But don’t you think we have a responsibility to make sure? And even if its not widespread, a responsibility to stamp it out entirely, as best as we are able at any rate?

  7. Isn’t part of the issue here that the law has become, and has been allowed to become, the instrument of a particular ideological faction? When the changes to the law on coercive control were made, some of the contributions to the consultation warned there would be cases like this, so we shouldn’t be surprised. Both the legislation and guidance such as PD 12J have been heavily influenced by a campaign which has at its heart the exclusion of men from family life and has relied heavily on dishonest, partisan and misrepresented evidence.
    There has been considerable criticism made both of the legislation and PD12J and much of it is very sober and entirely legitimate. Unfortunately, the pressure applied by campaigners has lacked balance: a large, powerful, well organised and well-funded campaign on one side and a poorly organised, largely inarticulate rabble on the other. This has led to committees and focus groups with no representation at all from large sections of the litigating public.
    The formulation “coercive control” is itself the product of a campaign and coined by Evan Stark; its incorporation into legislation sends a clear sign about which side in this debate has the ear of government. It is legislation designed to be abused.
    Imagine if things were the other way around, if the more extreme and ideological fathers’ groups had managed to dictate legislation, guidance and practice. There would inevitably be widespread abuse of the legislation, miscarriages of justice, and rogue judges – perhaps Alison Russell herself – refusing to follow official diktat.
    I have no idea if Tolson is a lone judge seeking to introduce some balance or if he is entirely incompetent, just as I don’t know to what extent the judgment by “Ms” Justice Russell is objective or clouded by her obvious ideological leanings which she seems to think are relevant to her job. What I do know is that allowing the law to be subverted by ideologues, while substantially conducted without scrutiny or accountability, will have results that have nothing to do with justice or with the protection of children.

    • You seem to leap from legitimate criticism about policy and institutional capture by certain organisations to the conclusion that coercive control isn’t real. It’s real. And its harmful. The way in which domestic abuse organisations go about pushing their agendas and the degree of success they have had does not undermine the very real and pernicious issues they are trying to tackle and protect people from. As I think you fully understand. There are important issues about how false allegations can adversely affect fathers and harm children, but that doesn’t make domestic abuse not a real thing. And nor do I think that it is really very grown up to try and undermine someone by their use of Ms. I’m a Ms btw. What assumptions do you make about me because of it? I think you should go back and read your comment – do you really mean to suggest Tolson is just ‘seeking to introduce balance’? Do you agree with his idea of what is acceptable within a relationship? That a man can crack on as long as she isn’t putting up a fight? There is no part of the toxic politics between fathers rights and feminist / womens rights groups that justifies that position if it is really one you hold.

      • Apart from the obvious mistake of HHJ Tolson QC providing detailed explanation of his decision on the matter of the allegation of rape, the real question in the case should have been does the alleged behaviour pose a risk to the child. As far as I understand from the appeal judgement the sex in question started as consensual, but the mother changed her mind part way through. She said she told the father to stop, the father suggested he wasn’t aware of this request, but it seems HHJ Tolson’s view was that, given the position she was in, she was able to move away and terminate the intercourse, which she did not do.
        Does this pose a risk to the child? Unless there’s allegations the father is going to sexually assault the child, then that is questionable.
        I’m going to go out on a limb here and guess that the allegation of rape was not made to the police. The mother stopped the father seeing the child and only when the father applied for contact did these allegations emerge.
        Even if HHJ Tolson made a finding in the allegation concerned, this does not prove an offence of rape. I suspect this is a case of her word against his, and the consequence is a child will lose a parent.

      • No, you’ve read too much into my post; I didn’t say I agree with Tolson, merely that he represents one extreme and I don’t believe either extreme is particularly helpful or constructive. For what it’s worth, I do think what he said needs to be read very carefully and in context. I doubt very much that he believes what he has been accused of believing. And of course the form of abuse referred to a “coercive control” is very real; I merely point out that that linguistic formulation is the product of a particular campaign which has its own agenda. To adopt the formula is potentially to align with the campaign.

        • The words attributed to Tolson are his own from the transcript.
          ‘I doubt very much that he believes what he has been accused of believing.’
          The appeal judge has summarised the logical import of his comments.
          Where is your beef – that she hasn’t accurately summarised his own words and their meaning, or that the transcript is inaccurate?

  8. It seems to assume that the victims of abuse are all women. My experience is the problem is Cafcass who enable abuse of children by taking at face value what a Mother says before any evidence is seen and then tell “recommend” to Judges what orders to make. Coercive control of children by vindictive Mothers or Mothers who just want to replace the Father with a new husband, and psychological abuse of a Father (which in itself is also abuse on the child) goes under the radar. It is absolutely heartbreaking. Evidence is the key. If the family court is overhauled it must start with Cafcass who it seems have a feminist model of social work and are blindfolded. False allegations of abuse by a Father are a crime – not only does it make a mockery of genuine abuse victims but it is far too easy to do with no consequences to the allegations, which muddy the waters and disempower a parent who then cannot protect their own child from further coercive abuse. Statistics apparently have it that more children are killed by Mothers than Fathers. It cannot be assumed that all Mothers are loving, kind and wouldn’t harm their children physically or emotionally. There are some evil monsters out there, both male and female and evil monsters are often quite clever and manipulate the system. Wishy washy platitudes are their best friend, enabling them to continue. While I am sure most Cafcass officers are well meaning, it is like employing a misguided person with immense power. What needs overhauling in the court system first – before anything else – is abolishing Cafcass and replacing them with trained psychologists who can weed out the liars and dangerous manipulators at first hearing. The other problem with the court system is Cafcass bullying parents into agreement – a completely pointless exercise when the only reason there is need for a court application is because agreements are not kept to. If the court wishes to cut the massive numbers of cases it needs to be law that both parents have equal and joint residency at separation and/or from the date of the child’s birth (many parents have never even lived together or married). Of course the big outcry against that is it wouldn’t protect children from abusive Fathers. Well at the moment it doesn’t protect them from abusive Mothers. “Parental alienation “ is bandied around as if it is a bit of dissing of the other parent and messing about with contact. It is far more serious than that and includes serious intimidation and fear of violence- that is how alienation is achieved. Equal joint residency would not stop allegations of abuse however, if one parent wants rid of the other completely. But it’s a start. Parents are dealt a huge disservice by not being able to bring up their own children without permission from the resident parent and only on their terms. Emasculating Fathers is not going to help children grow up healthy or protect them from emotional harm. I suspect many couples would stay together if both knew the other had equal residency.

    • I’m not sure what the ‘it’ is in your sentence ‘it seems to assume that the victims of abuse are all women’, but there is nothing in my article that suggests that. The only reference which is gender specific is a sentence about the individual woman appellant in the case in question. And the obvious fact of the matter is that the overwhelming majority of rape allegations made in the family court will be by women against men (not all, but most). That’s not to say that all allegations are true or that men are not also victims – but I think you are really complaining this piece isn’t about something you want to talk about.

  9. Judges and lawyers deliberately deceive parents !
    If at the conclusion of the case the family court judge says the usual “I refuse leave to appeal”that is not final at all though both the judge and the lawyers would like you to think it is .They rarely tell parents the truthful position and later judges remark that the parent FAILED TO APPEAL as though this mean’t they accepted the loss of their children.I say ” Do not hesitate therefore to ignore the judge’s initial refusal. Just go back to the court and apply for an oral hearing asking for permission to appeal !”

    • I think it is disingenuous to say that judges and lawyers deliberately deceive parents. A judge has to be very careful not to give a litigant in person legal advice. That said it would be far better if there were clear accessible information explaining to people what their appeal rights were, so that they can be sure not to miss out on an opportunity to appeal simply because they were unaware. Your advice to apply for an ordeal hearing isn’t quite right. What a parent would need to do if refused permission to appeal by the original judge is go to the appeal court / judge (ie the next one up the chain) and ask THEM for permission to appeal. The appeal court may deal with the matter on paper or by an oral hearing. Whilst an appellant used to be able to apply for an oral hearing as of right, that is no longer always the case.

  10. Apologies. I think the point I was trying to make – in between the emotion – was that Judges make orders based on what Cafcass recommend 99% of the time. That the problem is not with the Judges but with the system that relies so heavily on Cafcass recommendations to Judges.

  11. Sir Andrew’s words talk about emotional and psychological abuse, domestic violence, grooming and coercion. It is not gender specific or excluding abuse to children. It is interesting how people read different things into it. To me it read – abuse of children. However one problem is the term domestic violence is invariably associated with violence towards women. Abuse is abuse. And I think there are female as well as male perpetrators if emotional and psychological abuse. When it comes to “parental alienation” (or attempted parental alienation) it may well be there are more women committing abuse in this area (I don’t have the statistics). Tape is a terrible crime. A crime that can be dealt with in a criminal court. Children do not have the option to go to a criminal court.

    In terms of the family courts – a man claiming domestic violence and ongoing abuse does not receive legal aid in the family court, but has to continue being abused if they want to see their children. That is discrimination.

    I am not trying to start a sex war argument but one of the problems with Sir Andrew’s words is they are not specific and lead to assumptions that the only abuse is against women by men. Abuse against children is overlooked in family courts because the Mother is seen as the “safe” parent. Emotional and psychological abuse and bullying of men is perhaps under-reported. Male suicide is quite well reported though. And if it is a family court we are talking about, it is all about children and parents. I honestly cannot believe , with the amount Fathers have to go through to get a court order to see their child, that many can slip through the net.

    • Anonymous,
      You say ‘a man claiming domestic violence and ongoing abuse does not receive legal aid in the family court’. That is incorrect : anyone claiming domestic violence or ongoing abuse has the same entitlement to legal aid and is subject to the same evidence / means tests. The difference in entitlement is between those claiming to have been abused and those who are accused of abuse – those accused unfortunately don’t get legal aid (these are predominantly male).

    • Sir Andrew may not have stated it, but one of his predecessors, LJ Wall, did, in a speech to Resolution on 15th October, 2010, say:
      “Gone, I think, are the days when a man could be violent to the mother of his children and yet still be considered a good father.”
      Note the bias by the President of the Family Court. This was not long after the Equality Act 2010 became law, making it unlawful for a public authority (including courts) to discriminate on the basis of sex.

      • I think he was talking in a context whereby the overwhelming majority of such behaviour was in the context of (proven) domestic abuse by men towards women. As I suspect it still is (based on my anecdotal experience).

        • OK, so can a mother be violent to the father of her children and still be a good mother? Given he swore an oath to judge without “fear or favour” why didn’t he say “Gone, I think, are the days when a man or woman could be violent to the mother or father of their children and yet still be considered a good parent.”? Perhaps because he thought, as you do, that the overwhelming majority of domestic abuse was by men towards women and hence just assumed it was always like that?
          But stereotyping and profiling by the judiciary is not good enough really, they should decide the case on the facts before them, not their prejudices.

          • I think what he was challenging was the idea at that time (still not entirely dead) that domestic violence was irrelevant to or separate from parenting. It isn’t. It’s harmful to both parent victim and child. That is true regardless of whether the perpetrator is a man or a woman.
            None of that means that courts don’t consider the facts before them. For example, domestic abuse is a failure of parenting on the part of the parent who perpetrated it and it requires serious consideration. But it isn’t necessarily a failure that means that parent cannot change, reduce the risks and stop the ongoing harm or that they cannot offer something to the child in future. Understanding the context of abuse, what changes have been made since, assessing the current and future risks is what the court does and the task is the same whoever it is that has behaved abusively.

  12. Thank you. I did not know that men were equally entitled to legal aid if victims of abuse. I was misinformed. I think many men would be too scared to accuse a Mother of abuse in a family court or Cafcass would label them as aggressive towards the Mother. Complicated.

    • I can’t reply to your comment about LJ Wall directly, so I’m adding my response here. Before he became President of the Family Division, he wrote a response to the Women’s Aid report “29 Child Homicides” published in 2006. You can see the report here: .
      His recommendations at the end include these completely biased views:

      “Where a father is facing criminal proceedings
      “8.25 Where a father is facing criminal proceedings involving violence against the children’s mother which are outstanding at the date of the contact application, especial care it seems to me is required before an order is made. It is, in my view, impossible to be categorical and say that there
      should never be contact in such circumstances, since there may well be
      cases in which the seriousness of the criminal change is outweighed by the
      children’s need for contact with their non-residential parents.
      “8.26 Any order in these circumstances (whether by consent or otherwise)
      requires a rigorous examination of the risks posed by the father and
      should not be made unless the court is satisfied that the child can be fully
      protected against such risks.”

      “In addition, any investigation by the Family Justice Council could
      consider the allegation that parties (and particularly mothers) are
      sometimes pressurised by their lawyers into reaching agreements about
      contact which they do not believe to be safe.”

      “8.28 Reinforcement needs to be given to the lead provided by Drs Sturge and Glaser (and accepted by the Court of Appeal in Re L) that it is a nonsequitur to consider that a father who has a history of violence to the
      mother of his children is, at one and the same time, a good father. ”

      This followed on from the publication by the Children Act Sub-Committee of the Lord Chancellor’s Advisory Board on Family Law entitled “A Report to the Lord Chancellor on the Question of Parental Contact in Cases where there is Domestic Violence” which included guidelines for cases where there had been domestic violence, following pressure from women’s rights groups. These guidelines eventually became PD12J, but they have always assumed the only perpetrator of DV was the father and he was the one applying for contact.

      That’s why to this day PD12J acts to punish the person seeking contact and to protect the “child and the parent with whom the child is living”. This all came from LJ Wall’s biassed approach to Domestic Abuse and puts children directly at risk when the live with a violent or abusive parent. PD12J instructs the court to turn a blind eye to any abuse the “resident” parent has perpetrated and any risk they pose. There is no mechanism in PD12J for removing a child from an abusive parent, the assumption being they are living with a “protective mother”. You will see that term in social work frequently.

      The whole approach to domestic abuse in the family court is biassed and focused around protecting the parent with care. It is wrong and dangerous. The court must put the child first and cannot assume the parent they are living with is a victim and not a perpetrator. Very often the parent they are living with is causing them emotional and psychological harm by denying them a relationship with a perfectly safe and loving other parent, usually the father, but sometimes the mother.

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