That harms report – Part 1

I’ve been chewing this one over for a while before commenting. Because it’s important. And because the report says some very uncomfortable things for family justice professionals, things that deserve and demand proper consideration. And because the report is a whopper, with so much to digest. So here goes. My take on the Spotlight report (Full title : Assessing risk of harm to children and parents in private law children cases).

Two things to say by way of preamble. Firstly, as chair of the Transparency Project I called for a review of the family courts’ handling of domestic abuse before this review was announced. It was necessary and important. Secondly, I raised concern about the set up of this review, wondering if it could ever hope to achieve its objectives through the gathering of unverified anecdotal evidence – large volumes of anecdotal evidence are still anecdotal even where they are gathered in bulk. Whilst we shouldn’t discount the voices of those impacted by the process we are scrutinising, we would be unwise to accept them all at face value without scrutiny.

But anecdotal evidence is not without value. Firstly, because it tells us about the experience of those subjected to a process, and secondly because it may lead us towards patterns that can be subsequently objectively verified through research. This review has not conducted its own research or attempted objective verification (that is not a criticism of the review team, it is just how the review was set up), but they have gathered a significant body of anecdotal evidence which is strongly suggesting some patterns some problems. And those are things all of us need to reflect seriously upon – even where the emergent patterns do not match our own direct experience.

 

It’s unsurprising that some things chime in with my experience, and also that some things really don’t. I expected from the outset that many of the individual accounts that would emerge through the review would be of behaviour and experiences I might struggle to match with what I see in practice (or have seen over my 18 years of work in the field), and that some might present an inadvertently distorted picture of what was really happening. We lawyers are used to advising our clients in very careful terms, only to hear that advice reported back to others in ways that are barely recognisable (my lawyer told me to do [insert improbable advice here]). Lawyers are also used to hearing apparently genuine and persuasive witnesses describe the same events in wholly incompatible terms : people hear and see what they want to, they persuade themselves unknowingly of what happened (in their relationship, in conference, in court), subconsciously adjusting memories as time passes and perspective changes. This is why we must be cautious of anecdotal accounts from one party involved in a multi-party process, especially one where the subject matter is highly emotive and traumatic, and where almost inevitably around half of the participants will come out the other end feeling like the process has reached the wrong answer.

 

And so we lawyers instinctively ask, if the Respondent says X happened : what does the Respondent’s lawyer say happened, what does the Applicant or their lawyer recall, what does the judge say – and what do the lawyer’s notes, the judgment, the court file or the audio recording of the hearing show? We have none of that here, just collections of accounts of negative experiences (because unsurprisingly most respondents to the review were clearly motivated to submit evidence as a result of negative experiences), disassociated from any alternative perspectives or from the contemporaneous records. They are highly consistent, which does add weight – but that consistency might arise from a number of factors, separate or combined.

 

And in broad terms we knew what those responses would say before they were even submitted. We know this because the reason the review was commissioned was that people have been making the same serious complaints for years. And because we could also see campaigning organisations (predominantly womens’ rights and domestic abuse organisations, but also to a lesser extent fathers’ rights organisations) marshalling their forces, encouraging their members to respond, reminding them what sort of evidence to submit, providing templates in order to make their collective point effectively. The submissions do need to be seen against that backdrop of a highly co-ordinated and persistent campaign to make precisely the point that the review has now made : in short, that the family court is pretty poor at dealing with domestic abuse.

 

But whilst this all raises some pretty big forensic questions, it doesn’t necessarily mean that the point is not well made. It seems unlikely that all these accounts are inaccurate, that there is no fire from which this huge smoke cloud is emanating. Even I, the handmaid of the system, am able to see the system is pretty poor at dealing with domestic abuse.

 

It’s worth noting too that the authors of the report themselves do confront and reflect on these limitations and they give, to my mind, a strong account of the high levels of consistency between the accounts received and of their reliance upon them. I don’t think this consistency can all be put down to the farming of accounts by campaigning organisations, particularly since those accounts appear in some aspects to be consistent with the worrying displays of poor appreciation of the complexity and working of domestic abuse apparent from the submissions of some professionals. And whilst I don’t recognise it all, some of what is complained of is far too easy to believe when I compare it to what I do see and hear on occasion. Nor can it be fairly said (as predictably it is) that this line is just coming from bitter mothers whose attempts to use false allegations to thwart contact had been rejected by the court – it is also coming from the mouths of professionals, on some occasions unwittingly exposing their own poor practice.

 

If the family justice system were the respondent to allegations at a fact finding hearing, it would have the benefit of the doubt (the burden of proof would be on those who accuse it of abusive behaviour towards victims). But there are good reasons why the Family Court adopts a flexible approach to evidence in ways that other courts do no – it does admit hearsay evidence, and, as we have recently been reminded by the case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, propensity / similar fact evidence can be relevant and admissible. Just as it is in the way of domestic abuse that there is rarely contemporaneous, independent evidence, making it quite tricky to prove abuse that takes place in private and leaves no visible bruises – so it is for victims of a poorly functioning justice system, where interactions also take place in private and where complaints may be assumed to be the result of sour grapes or discounted when made against a respectable, well-meaning institution.

 

Except of course, whilst it is very difficult for the victims of any system failure to produce direct contemporaneous evidence, in fact that evidence does exist – in the form of bundles, lawyers notes, court files, and court recordings. The system holds the answers to all this – though it holds them under lock and key because participants may not speak publicly of what took place nor access the records with ease. If we were running this trial of trials to the gold standard forensically, we’d track down these primary materials and test the testimony of those bringing allegations to see if it comes up to proof. When a litigant says the judge shouted, dismissed their allegations, failed to follow procedure – there is a way to check accuracy, to get to the bottom of whether experience narrated from memory matches with objective contemporaneous record.

 

But as is now becoming wearily familiar with everything in this justice system, we must make do with what we’ve got. Fairness and forensic rigour are all relative, moveable concepts (viz the shift from a firm view that a remote hearing could not be fair to the insistence only a few months later that it can – nothing has changed except what is possible).

 

And so, as with the advocate briefed just before at a fact finding hearing, who discovers that none of the potential primary material has been disclosed or placed in the bundle, we must just do the best we can with what we’ve got. Nobody is going to entertain an adjournment so we’d better crack on.

 

That’s part 1. In Part 2 I set out some specific observations I made as I read through the report, and thought about them in the context of my own direct experience. In due course in Part 3 I will round up with my conclusions.

 

7 thoughts on “That harms report – Part 1

  1. DV like many false allegations made in the family courts are one of the evils of a rotten syste. I’m surely not the only alienated father who is sick and tired of the ‘broken system’ making excuses after excuses to ignore the ‘elephant in the room’ the family courts and the judiciary continue to destroy thousands of lives on a daily basis. The elephant in the room is Parental Alienation. This form of child abuse is not only sanctioned by the courts but perversely encouraged. Its common knowledge the rights and wellbeing of the child/children are of no significance whatsoever to the court, CAFCASS or money grabbing lawyers who all work together to feather their own nests professionally and financially..The utter waste of tax payers money to fund another version of ‘war and peace’ is an example of how out of touch the whole rotten system is. Why is it so difficult for the players in this world of utter pain and massive financial gain to ignore what’s staring them right in the face…sadly, the prescription of rose tinted spectacles to all involved in the family courts needs reviewing with those who continue to destroy lives at will are held to account. Only then will alienated parents and children be free from the corrupt shackles of a rotten, corrupt broken system..

    • I’ve been running this blog for 13 years now and this sort of comment is so familiar. Domestic abuse and parental alienation are not mutually exclusive (apart from in any individual case). They can both be real, and dare I say it, they both are. This ‘but what about me’ approach lays bare the inability of some people to see the complexity that courts are faced with. Everyone who comes to the family court is right.
      Slagging of lawyers with facile suggestions that they are money grabbing doesn’t really advance matters a great deal. As it happens when I represent a legally aided alleged victim of domestic abuse I generally get paid a fraction of what I’d be paid for a privately paying parent complaining of alienation, so if there is any perverse incentive its running entirely in the opposite direction. For the record though, I do my job thoroughly regardless of the fee.

      • You seem to be missing the very important factor here – the family court should be about equality and fairness for all parties not about those lawyers or professionals who have serious egotistical issues the family court is about them. I’m sure you are an excellent lawyer who like many put the need of their clients before your own financial gain. Nevertheless, there are thousands who make a wonderful living out of destroying lives..I’ve witnessed first hand the corrupt practices of a large percentage of lawyers who display a disturbing arrogance towards the rule of law with the support of an equally arrogant magistrate. I dismay at the wanton protection of a rotten system by those who created the rotten system for their own ends and to keep the associated wheels of a broken social services ie. CAFCASS rolling along running over all in your way without care or concern..The family court system is complex because it’s not set up for justice, parents or children. It’s set up to keep the money pouring in in massive amounts..

        • Pete
          I’m sorry you have had a poor experience, but I think it is clouding your perspective. Even though much is wrong with the system and there are undoubtedly bad apples, most people are trying to do the right thing. If we were all financially motivated we’d be doing something else frankly. The idea that people are breaking families in order to secure some financial advantage just doesn’t stack up when you poke it at all – lawyers get paid regardless. Cafcass and social workers are salaried. Etc etc.

  2. In 2005 Women’s Aid produced a report entitled “29 Child Homicides” which claimed children were being killed during court ordered contact in what is now called the “pro-contact culture”. Nicholas Wall was tasked with looking into this report and found that few of the cases had had any involvement with the Family Court and none of the deaths could have been predicted.
    Fast forward 10 years and Women’s Aid produce a report entitled “19 Child Homicides”. Mr. Justice Stephen Cobb is tasked with addressing the report and produces a new draft of PD12J, which attempts to remove the statutory presumption of contact in the Children and Families Act 2014.
    Where is the evidence? Previously the cases where it was claimed the court had failed were looked at, the court file retrieved and a proper assessment was made. In this electronic age the court file is much easier to access, but no proper assessment is being done!
    As for that Harms Report, it’s quite simple, randomly select some of the people who gave evidence and do and audit! If you find their claims are reliable, you can generally accept the body of evidence provided. If you find it’s generally not reliable, then dump the whole report and do some proper research.
    Feelings and accounts of people with an axe to grind is not the way to form policy.

  3. A good assessment Familoo. Here in NZ things are much the same. Over the last 15 years when I’ve sat in on court hearings as a Mackenzie, the judges have almost always acted reasonably in what is inevitably an emotionally charged setting.
    The quality of other professionals involved on a journey to a hearing hasn’t always been up to the mark at the same rate.
    However I’ve noticed an improvement with less ‘dodgy practices’ now than I came across in the early years on some occasions.

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