Parliament on d.v. : turns out its not so easy to ask the right questions…

There was an important debate in Parliament today. The government was put on the spot about the scandalous cross examination of victims of rape by the perpetrators of such abuse. It is a shame that the video footage of the house shows so many MPs making a break for the cafe just as it started.

That this issue is being tackled (or is about to be tackled) is a good thing. It is unfortunate that it has taken so long for people to wake up to it. But I have to say that the framing and depth of the debate about this really important issue leaves something to be desired. And it does not give me great confidence that the solution will necessarily resolve the real issue.

There is some real flabbiness of definition here : There is (still) no delineation between complainant and victim, accused and perpetrator, alleged abuser / rapist and actual abuser / rapist. This should not be too hard to grasp. The presumption of innocence should not be a novel concept for our elected representatives to grasp.

Many, maybe most, of the (mainly) men accused of domestic abuse are responsible for some level of bad behaviour. Some will be guilty as charged by their ex. In other cases there is a much exaggerated grain of truth at the heart of a schedule of allegations. And some, we cannot say how many, will be innocent.

But in this really important debate about how we do justice in the family courts, this debate that has had the attention of Parliament as it rightly should – we have forgotten those victims. The victims of false or grossly exaggerated charges made wilfully or through confabulation. Maybe it’s easier to see things from only one perspective, but this isn’t about what’s easier. How can we talk about justice if we can only talk about justice for one party?

And so, the debate trundles on about why we ALLOW men to cross examine their VICTIMS. We shouldn’t allow such cross examination because we have to protect those complainants who ARE victims. But the corollary is : nor should we COMPEL victims of false allegations into having to cobble together their own cross examination, having to face a person determined to see them destroyed, having to do so without the legal aid that their accuser is entitled to. Because some of those “perpetrators” will be just that – victims who are struggling to fight off unjust allegations in order to preserve or establish a relationship with their child. Not all of them, some of them will be nasty, nasty pieces of work who (we will all agree with the benefit of hindsight after a thorough trial) did not deserve representation. But we will at least know that when the trial is over the decision is both fair and robust. And as good an approximation to “truth” as we can achieve.

I think we need to have this conversation – about the men who might not be abusers – before we rush headlong into solving this problem with the sticking plaster of appointing counsel to cross examine but not to conduct a trial or to advise an accused parent.

Not just for the sake of the innocent accused, but also for the sake of the genuine complainant. Because a family court is not like a criminal court. And a family case is not like a criminal case. Yes, it offers a whole arena in and through which a controlling man may continue to attempt to exert control. And yes, our haphazard system may inadvertently facilitate that in some cases. But there are other distinctions too.

Firstly, in the family court the parties are just that – parties. The complalnant is more than just a witness. They are a participant in the entire trial process. And as such the need for protection goes far broader than mere cross examination. The flip side is that the need for an accused to be protected against accusations that he has attempted to manipulate the trial process to exert continuing control over his victim runs throughout the litigation / trial process. An accused litigant in person can be very vulnerable indeed.

And secondly, that the parties do (usually) have a child together. This means that, however uncomfortable it may be, in all but the most exceptional of cases there will have to remain some connection between the parties for a long time – even if it is entirely indirectly through third parties.

And thirdly, because the family court can make very draconian orders – it can suspend or even terminate a relationship between child and parent – based only on evidence to the civil standard of proof. In brutal terms it is far easier for a person accused in the family court of some awful crime to be found to have perpetrated that act than in a criminal court. Again, the accused is vulnerable. And the consequences are different, but are potentially every bit as grave and lifelong as in the criminal court.

Finally, it is worth reflecting on the illuminating heading of the debate in Hansard : Domestic Violence Victims: Cross-Examination. It is broadly drawn. It is not just about rape victims any more. When ministers are reconsidering this issue and formulating proposals they need to take some real care to distinguish between the position in rape cases (specifically provided for in criminal courts) and the position in the spectrum of other cases of domestic abuse (again there are provisions in criminal courts but they only apply where the court considers that the quality of witness evidence is likely to be diminished by direct questioning). Any proposals need to distinguish between cross examination and broader participation in the trial process. They need to distinguish between : cross examination about alleged abuse (to prove or disprove it), cross examination about other matters in a case which involves (or has involved) allegations of abuse, and cross examination in a case which is nothing to do with domestic abuse but where, incidentally there is a background of domestic abuse between the parties or between a party and a witness (for example financial or civil matters between ex partners). The answers called for in each scenario might be rather different. I’m not sure the debate so far has teased any of that out.

It is really encouraging to see Parliament taking an interest in these important issues. But it is profoundly depressing to see the massive blind spot that our Parliamentarians seem to have to one whole side of the discussion – and one whole half of their constituents: the accused, who we insist on calling perpetrators as if we have entirely forgotten about the purpose of the trial in the first place – to establish guilt. Not once in the debate did anyone use the proper terms complainant and accused. Not once did anyone avert to the possibility that an allegation might not be true. It is this one eyed perspective on family courts that got us into this post-LASPO mess in the first place.

And it is profoundly depressing to see it now enter into the Hansard records as fact that “a quarter of domestic violence victims face cross-examination by their abusers.” And not just because of the use of those terms victim and abusers :

Women’s Aid have done valuable work on this topic, and it is largely thanks to their massive campaign that people seem to be sitting up and listening. They deserve credit for it, although I do not always agree with their methods or adopt unquestioningly all of their bold assertions. But the 25% statistic used by Oliver Heald does not come from court statistics, not from any proper research and it is unverified. It comes from a Women’s Aid survey of their own service users, which they have yet to answer questions about (see my previous posts about that here) [update 11 Jan 17 – they have now answered, see here]. The danger in such concerning but basically anecdotal and subjective evidence is that it may not be reliable or may become distorted by the process of stripping out important context. A striking example of this is the account given by an MP in the course of debate today that a “convicted murderer…sued for custody of their child from the prison where he was serving a life sentence for murder”. It seems highly unlikely that a person serving a life sentence for murder would be pursuing an application for a child to live with him. Instead it is far more likely that he was asking questions in the context of pursuing contact or was responding to an application made by extended family wishing to care for the child in light of the mother’s murder. Although it will have undoubtedly been very difficult for the witness, whose sister had been murdered by her questioner, it is of course not an example of a perpetrator cross examining his victim at all. We don’t know the details, and it must be right to expect the court dealing with such an application to control the court process very carefully – but it is difficult to draw conclusions from such snippets – for me this is a powerful illustration of the danger of anecdote.

That the minister for courts and justice Oliver Heald is happy to simply adopt the Women’s Aid guesstimate as fact is an indication of the real depth of consideration here. The minister needs to ensure that the government’s response is to the problem not to the publicity campaign. It all makes me concerned that we will be presented with a quick fix that in fact fixes very little. Let us suppose that a quarter of all victims of domestic abuse are cross examined by their perp (this would be a significant number as it is not limited to rape or serious physical abuse – and thus if we want to ban ALL of it a significant fix would be required). It would be unsurprising if a quarter of all those accused of domestic abuse would also express concern at their vulnerability in having to try and defend themselves against false allegations without help and against a state funded lawyer if asked to complete a survey on the topic. Who is to say which is the greater injustice when we have no proper research on either proposition,  and when our system depends upon us holding in mind the possibility of two alternate versions of reality until after the evidence has been heard?

In saying all of this I don’t minimise the legitimate concerns raised by campaigners and MPs about what is going wrong. But it isn’t the whole story and it isn’t the whole problem. And a mere BAN on cross examination by men who – in the main – aren’t terribly keen on enforced DIY cross examination in the first place is not the whole fix either.

Cross Examination of Complainants – why on earth is it happening?

NB I’ve updated this post since publication – see foot.

There has been a lot of coverage of this issue in the media in the last couple of weeks, most recently here :

There was also some coverage last week which led to a significant response in the letters section of the Guardian here (which links to earlier articles in the sequence).

I don’t think anyone would argue that perpetrators of sexual assaults or serious domestic abuse ought to be able to re-traumatise their victims by direct cross examination of the in court (I suspect there may be less of a consensus if you asked whether ALL alleged perpetrators of ANY type or degree of domestic abuse should be so prohibited). Anyone who has represented parties in these cases knows how taxing the court process is even when conducted well and when everything goes smoothly from a procedural point of view. But current criticism of judges for allowing cross examination by alleged or proven perpetrators on occasion, is somewhat missing the point. In my view it should never happen – we can and should find alternative ways of doing things that are fair to both parties. I don’t in fact think it happens very often in cases where the violence is serious*, and even less often in cases of sexual assault or r*pe, but we all have to acknowledge that the jury is still out on quite how often it happens because all we have at present is anecdotal evidence that it is happening to some extent (and that anecdotal evidence makes pretty depressing reading).

But I think it’s important that people understand why this issue is an issue at all. From the outside it probably seems a total no brainer, and its easy to criticise crusty old judges (always male in the mind’s eye of the media / campaigners of course) who just don’t “get it”. Based on my own direct experience, I think most emphatically DO get it, but I also have direct experience that a few emphatically do not. That is really worrying and it is no comfort for the individuals interviewed by the Guardian or those like them to be told that most judges are okay.

But. We do need to make attempts to distinguish between a system which is cavalier about this issue, and a system which is cornered into doing things in a profoundly unsatisfactory way. It is inevitably the case that some individual judges, magistrates or legal advisers need a crash course in domestic abuse and coercive control, but there are also many other factors at work here – and I think it is probably in addressing those other factors that the greatest potential to achieve real justice for complainants lies.

You are probably wondering why this isn’t a problem in the criminal courts. The answer is simple : Parliament recognised the issue and stepped in with Section 34 of the Youth Justice and Criminal Evidence Act 1999 :

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either – 

(a) in connection with that offence, or 

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings…

the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused…

If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

That section banned the direct cross examination of a complainant in cases of sexual offences. And, to ensure that a defendant still had an opportunity to challenge the evidence, Parliament also made legal aid available as of right for the purposes of cross examining the complainant. That isn’t a perfect solution because the legal aid doesn’t extend to the running of the case or even advocacy for the whole trial, but it’s better than nothing. And of course in most criminal cases legal aid is still available for the rest of the trial – so this provision really only kicks in in the case of a defendant who eschews legal representation and positively wants to represent himself – it’s designed to restrain that sort of cross examination that a perpetrator might get a kick out of or use to intimidate a victim.

In criminal domestic abuse cases that don’t involve a sexual assault charge there is a slightly different scheme set out in s 36 YJ&CEA 1999 :

(1)     …(a)    [where] the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b)     the court of its own motion raises the issue whether such a direction should be given.
(2)     If it appears to the court—
(a)     that the quality of evidence given by the witness on cross-examination—
(i)     is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and(ii)     would be likely to be improved if a direction were given under this section, and
(b)     that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person…

The distinction here is that there is not an automatic prohibition, but the prosecution may apply for a direction if direct cross examination is likely to prejudice the quality of evidence – or indeed the judge may make such a direction if he thinks it appropriate even if not applied for. In such a case the court is given a discretion.

So, what is different in the Family Court?

As in the criminal court, the Family Court has to ensure fairness for both parties (Article 6 European Convention on Human Rights, Overriding Objective Family Procedure Rules), but here also in the context of prioritising the welfare of any child involved (section 1 Children Act 1989). The child too has an Article 6 right to a fair trial in relation to allegations of domestic abuse that might lead to a restriction on their Article 8 ECHR right to family life with one or other parent. And that means that the court has a duty to make sure that the person accused of abuse (remember, they might be innocent) is given a proper opportunity to challenge the allegations and evidence. In a family case, if the accused is lucky they will have a lawyer to do that for them, but if they don’t (and many don’t) they still have an entitlement to challenge that evidence if they wish. The court can to some extent control how that happens but it isn’t presently empowered to bar a person facing allegations from asking questions.

The relevant law here is section 31G(6) of the Matrimonial and Family Proceedings Act 1984 (inserted in 2014 when the Family Court was created but drawn from earlier legislation), which says :

Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a)     ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b)     put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

At first blush this seems to be a rough parallel with s34 YJ&CEA 99 but it’s really quite different. It does empower the court to take over the questioning or to get someone else to do it (for example the solicitor for the child), but each of these “solutions” has it’s own difficulty. But read more closely s31G(6) only gives the court this power where a litigant in person is UNABLE to cross examine effectively – which of course does not always apply, and in particular doesn’t empower the court to stop the cross examination of a litigant in person who thinks he is doing fine thank you very much, but who may be traumatising a vulnerable witness. And unlike the situation in the criminal courts the Judge is not able to grant legal aid to facilitate the conduct of cross examination by a professional. So, whilst the judge has a general power to limit cross examination (Family Procedure Rules 22.1), for example by imposing time limits or restricting questions which are irrelevant or inappropriate, this does not equate to a power to prohibit it entirely.

In cases where a judge has decided it would be inappropriate for questioning of a vulnerable witness to be carried out directly or by the judge (who has to maintain impartiality), and has attempted to order the court service to fund an advocate that has been roundly overturned on appeal (Re K and H (Children ) [2015] EWCA Civ 543), so it is now clear this is not currently an option for those trying cases in the Family Court. In K and H the Court of Appeal effectively squashed judicial attempts to find a way out of this mess by saying that Parliament knew exactly what it was doing when it decided to go ahead with LASPO and the court had no power to order the expenditure of public funds in this way. But the Court of Appeal were also surprisingly dismissive of arguments made in Q v Q : Re B : Re C (Private Law : Public Funding) [2015] 1 FLR 324 and other cases that a fair trial would be compromised without legal representation of an accused – they thought that questioning by the judge or by a justice’s clerk or through the appointment of a guardian for the children would be an adequate solution in many cases. Many judges and advocates raised an eyebrow at that, but there we are, that was the clear view of the Court of Appeal, although they did acknowledge that questioning of a witness by a judge could involve treading a difficult tight rope, saying however that the judge must just do his or her best. That of course shouldn’t translate into the cross examination of complainants by those they say have abused them where a court has decided that would be inappropriate, but whatever the Court of Appeal say (the Court of Appeal have the luxury of not having to deal with the practical reality of a trial) the options available to a judge are all rather unsatisfactory (See Q v Q and below for a summary of why).

The President of the Family Division, Lord Justice Munby

The President of the Family Division, Lord Justice Munby

The report of the Vulnerable Witnesses and Children Working Group (Feb 2015) raised this and other pressing issues, but did not provide any answers. Since K and H in May of that year little has happened and no particular solution has emerged :

  • Guardians are rarely appointed so they can’t often help with the asking of questions through their lawyer (and they are in the same bind as a judge as they are supposed to be neutral too – I have been in cases where counsel has refused to do it and I don’t think a judge can force them to conduct a case in a particular way, that is a matter for their client and their professional ethics).
  • Magistrates are ill equipped to be asking questions directly – unlike a judge they are neither lawyers nor have a background as advocates, and the process is simply unworkable when magistrates operate by committee.
  • I have been involved in a case where a Legal Adviser asked questions on behalf of a father. It was profoundly unsatisfactory in that it was neither effective cross examination nor any less awful for the witness (since the questions were audibly asked by the father in court and re-spoken by the legal adviser, subject only to modification where they were unclear or inappropriate. It wasn’t a particularly forensically taxing or grave case of violence but I can only imagine how much more awful it would have been if it were)
  • I’ve seen judges in a range of cases (civil and family) give general assistance in the framing of questions to a litigant in person (often to both parties in a small claim or family case where there are no lawyers), but that is to help them put their case / elicit evidence helpful to the court, and NOT taking over the job and carrying it out for them for the protection of the witness. That’s a completely different task – and even the general assistance model can be quite difficult to pull off without giving an impression of bias to one side or another.
  • The Bar Pro Bono Unit are overwhelmed. I’ve been involved in many cases where a case is delayed to see if a pro bono lawyer can be found. This helps in some cases but isn’t really a viable solution, and it is inevitably the case that advocates are more likely to be willing to take on a case that has some hope of career advancement (some novel legal issue) rather than one which is just a lot of work but not legally interesting. So in many of these cases this isn’t a solution at all (and the BPBU don’t take cases at all of more than 3 days so complex fact finding hearings are ruled out).

The issue of perpetrator cross examination was always a potential problem in family cases (and probably always happened in a small number of such cases but with less fanfare) because there were always some alleged perpetrators who didn’t qualify for legal aid. But it became much more acute when legal aid was slashed by The Legal Aid Sentencing and Punishment of Offenders Act (LASPO) in 2013. A combination of the intensification and greater frequency of the issue arising where there are no lawyers, and an increasing understanding of and concern about the retraumatising effect that the court process can have has probably led to this issue coming to the fore now.

Whilst the President says he welcomes this spotlight being shone on the issue and that he will prioritise it in 2017, it is important to recognise that there are limits to what the judges, even the President himself, can do to fix this problem without the assistance of Parliament. As the article notes,

Munby “would welcome a bar” on the practice but [said] that it was down to primary legislation in parliament to do this.

Munby and others have been saying this since 2014 (and indeed said it before LASPO was implemented. Parliament and parliamentarians ignored us).

Whilst there are a number of MPs taking up the issue of the treatment of domestic abuse victims in Family Courts, none has yet put before Parliament any bill that would assist the judges by outlawing the cross examination they complain of, and by giving them a feasible alternative.

The article also says that :

The spokesman said Munby welcomed the fact that Women’s Aid had raised the issues and that he was considering a review of the rules supposed to protect victims of domestic violence within the family courts and stop direct cross examination.

Although The President has some influence over the Family Procedure Rules Committee he cannot unilaterally or immediately change those rules (the reforms proposed by the Working Group in 2015 have been stuck in a tangle of red tape since 2015, it is rumoured because there are difficulties with securing ministerial approval with regard to the resource implications of those rules. The FPR Committee has no power to amend primary legislation, and it is clear from Re K and H that it is primary legislation that would be needed to secure the funding that would be required to enable a judge to appoint an advocate to cross examine on behalf of a litigant in person. There is no doubt however that the President is, like many of us, genuinely frustrated at the mess we are in, and that this press coverage may happily provide useful political leverage for those who hope to persuade Parliament to find a real fix. It is just a shame that the campaigners are aiming perhaps at the wrong target. We all agree on the problem but the solution lies with Parliament.

 

*I have known it happen without objection in cases where violence is not recent and where a survivor is ready to look her abuser in the eye, and feels that is part of her journey. Not all survivors want to be wrapped in cotton wool, some ask for special measures to be removed as their strength grows.

UPDATE :

I have just listened to the podcast of this morning’s Womans Hour with Elspeth Thompson (solicitor) and Polly Neate, featuring more details of the press release apparently made available to the Guardian as the basis for the article I’ve linked to above. You can listen here. I don’t think I can pass without comment the remarks made by Polly Neate, CEO of Women’s Aid makes in the course of that segment.

As best as I can get it down Polly said this in response to the question why is cross examination of victims still happening in the family court :

Because professionals in the Family Court – in the main judges – actually don’t understand whats going on in domestic abuse. So, they don’t understand that domestic abuse is very commonly – in fact routinely – continues after separation. So, if the last violent incident was a few months ago and they’ve separated they just don’t it see as abusive, they just don’t understand the impact on children and just don’t understand coercive control – and this behaviour we’re talking about is coercive control. It’s really a lack of understanding on the part of many judges and that’s why they allow it….it’s appalling that the level of understanding is so weak. That being said there are of course some brilliiant judges and examples where this doesn’t happen…all that goes to show is that its perfectly straightforward for a judge not to allow this if he or she doesn’t want to. So it has to stop…solicitors and judges say its incredibly uncommon but we found 1 in 4 survivors of domestic violence with experience of family court had been directly questioned. That’s not “hardly ever happens”.

I have asked Women’s Aid about the detail of their evidence base for this sort of assertion – because it is a really serious allegation and has a very different solution to the problem as I see it (as set out above), and therefore affects where we ought to be directing our energies (it’s the difference between culture and resources). Women’s Aid recently agreed to answer my questions about their evidence base. See here on The Transparency Project blog, for the background to that. I will update that and this post if and when answers are forthcoming [Update : Answers from Women’s Aid here]. I think it is critically important that they do so, particularly now it appears (as of today’s unpublished press release) that there has already been a review of PD12J conducted with the help of Women’s Aid that is coming to its conclusion. I’m not saying that Women’s Aid are wrong necessarily, my own experience may not in fact be representative – but I am asking for us to move forward on the basis of proper, balanced evidence rather than on the basis of who shouts loudest.

APPG Report on DV (finally)

The All Party Parliamentary Group on Domestic Violence published a Briefing Paper in April. Finally, I’ve had a chance to deal with it. You can read the report here.

The report and evidence session appears to have had a heavy input from Womens’ Aid (in fact they are the Secretariat for the group) and to have relied heavily upon the cases studies in the Homicides report published by them in January this year (which I’ve previously critiqued here – I won’t repeat myself, but merely suggest you read that post before proceeding).

By way of overview to my response : I recognise many of the concerns flagged in this report, and have some experience of them from my own caseload over the last 14 years (including in recent years). Everything is not fine in the Family Courts, but those working in it are by and large doing their very best with inadequate tools and resources – there is generally a pretty good understanding of domestic abuse (less so with coercive control), but the many pressures on individual practitioners, judges and lawyers make it hard to consistently apply what we know. Some outliers I come across occasionally do demonstrate a poor understanding of domestic abuse and controlling behaviour.

What I don’t recognise is the regularity with which it is suggested some of these issues are occurring. And I’m afraid I don’t accept that the evidence base which the report relies upon (which is largely anecdotal and subjective, and statistically quite limited) is sufficient. It is a matter of some concern that we don’t have better sources of evidence about the extent of the problems – we should not have to rely upon surveys conducted by pressure groups like Womens’ Aid, the government should ensure that independent research is conducted and published.

Finally, I recognise that my experience may not be representative, but I’m confident it broadly is. And I think my anecdote is as good as anyones, and that it has a different (not greater) value than that of victims of abuse because I have a more objective perspective (even if you subscribe to the view that self-interest prevents me from being completely objective, I have the advantage of professional distance), and a good understanding of the legal framework and what is likely to be going on around the subjective experience of the women who are reporting what has happened to them.

So, with that context in mind, on to the report. I’m going to comment in the order in which issues are presented in the paper, but I don’t pretend to comment on every issue – only those that seem to me to require response.

The foreword (written by the CEO of Womens’ Aid) says this :

…as this report and the Women’s Aid report ‘Nineteen Child Homicides’ show, without a vastly improved understanding of the experiences and needs of victims of domestic abuse, the family courts are unable to follow the principle which should guide all their decisions: that the best interests of children are paramount in every situation.

They are failing in their primary duty.

A recent survey by Women’s Aid of domestic abuse survivors with experience of the family courts found that three quarters described the experience as “traumatic”, and a quarter had been questioned directly by the perpetrator. In many cases, these were men with convictions for violence against their former partner – surely an even stronger case for protection measures than the criminal courts where, rightly, the accused is innocent until proven guilty. More than half had no protection measures at all, not even a separate waiting room or being permitted to wait until after the perpetrator had left, to avoid being followed or harassed.

Domestic abuse is an issue in at least 70% of cases in the family courts. They must adapt to this reality.

What is needed right now is a strong message from government and the senior judiciary that the safety and wellbeing of children demands urgent change.

This is starkly critical of the Family Courts, although it is not as strident as much of the Womens’ Aid PR material accompanying its Homicides report and since, which often suggests that the Family Courts (through the judges) are wilfully ignoring their own guidance, and the needs of victims of domestic violence and their children (who it seems from this and Womens’ Aid reports are always female). But it is fair to say that the APPG report subsequently acknowledges that :

The Government, family court judiciary and related statutory agencies take domestic abuse seriously, and are committed to working towards protecting children in these families. However, this Hearing has highlighted key areas of concern relating to the experiences of survivors of domestic abuse in the family courts,

The report makes some sensible recommendations, most of which I suspect family judges and practitioners would wholeheartedly endorse, even if they are mainly (for resource reasons outside their control) complete pie in the sky (better special measures, no cross examination of victim by perpetrator etc). So, we see MPs recommending separate waiting areas and private rooms in apparently oblivious parallel to the fast moving proposals to sell off the court estate and conduct hearings virtually (I do hope Womens’ Aid and / or the APPG are going to respond to the current consultation on “Briggs” court modernisation).

The last recommendation I don’t much like (The President of the Family Division must ensure family court judges never order child contact in supported contact centres where a risk assessment has found that the abusive parent still poses a risk to the child or non-abusive parent) but only because of its absolute terms – in a discretionary jurisdiction where families and children are all unique, one never says never. Sadly, the world of domestic violence campaigning likes the simplicity of black and white.

I’d disagree with the proposition that is made that “The introduction of the Shared Parenting legislation, through the Children and Families Act 2014, has led to an increased emphasis in the family courts on the importance of children having contact with both parents.” I’ve seen no evidence it has led to any change in behaviour whatsoever (quite as predicted) since, as we all said at the time, the statutory presumption is merely a convoluted rehash of what was the law already – contact if it is safe). In any event, the approach adopted by courts in this area follows the pre-existing law. It is notable that where the report sets out a list of the government’s domestic and international obligations in this field it neglects to mention articles 6 and 8 ECHR or the Human Rights Act, which underpin the courts’ approach to dealing with these difficult cases.

The report includes this particular piece of legally inaccurate gibberish :

Where there is not evidence in a particular case that the perpetrator of domestic abuse has posed, or continues to pose, a threat to their child, this does not mean the courts should disregard the Paramountcy Principle, which stipulates the courts must put the rights of the child first.

Having carried out the verbal algebra to decipher the double negative I suspect this means that even if there is no evidence of ongoing risk the court should apply the paramountcy principle (which is NOT about the rights of the child incidentally, but her welfare). This is an uncontroversial proposition, but I think it may be intended to mean something more controversial. What I very much hope it doesn’t imply is that : even where abuse has not been proved the court should still use the paramountcy principle to prevent contact. Because that really would be legal gibberish. And utterly unlawful. And it is what is at the root of so much of the silliness that sadly surrounds this issue. The court (all courts) operates on a binary system. We cannot expect the court to work on the basis that a child right to a relationship with his parent should be cut off or diminished just because someone asserts domestic abuse (except pending a trial of an issue when safe temporary measures are put in place). Something is proved or it isn’t. If it isn’t proven, we move on. So it is important to prove, not merely to assert and complain. This I acknowledge is very hard on victims, but it is the law.

This is important, because much of the material upon which this report is reliant is the account of victims (complainants?). Or to be precise the direct account of a single anonymous victim and the indirect parsed accounts of respondents to various surveys carried out by Womens’ Aid. What is less clear is whether they are people who have proved the abusive behaviour or who merely assert it. Whilst twitter may operate on the basis of #webelieve it would be quite wrong for the courts to do so. None of which is to say that complainants should not be treated with respect, as should those accused of abuse.

I agree with the proposition in the report that there is a presumption of contact in the family court and that in most cases some contact is ordered (the law reports tell us as much and have done for years). However this does not mean contact is ordered willy nilly, unfettered, in cases where there is a proven history of domestic abuse. I don’t accept the proposition that there is a “desire by the family courts to treat parents equally in a push towards shared parenting” – on the contrary I would say that the judiciary are generally – increasingly – skeptical about the benefits of shared parenting in cases where there is acrimony or a less than good working relationship (which would include previously abusive relationships). I’ve tried and failed to argue for shared parenting on many occasions (perhaps this says something about the quality of my advocacy, but I like to think not – and I do seem to fare rather better when arguing the opposite).

The report borrows phrases and adopts assertions from the Homicides report (unsurprising since several of those associated with it or the research underpinning it are represented on the APPG Panel), such as the alleged “contact at all costs” culture that operates in the family courts (it doesn’t – it’s contact where safe). It is said that :

The contact order often happens without any assessment of the capacity of the abusive parent to provide safe and appropriate care for the children.

Again, this is just not my experience. It’s up to you I suppose to weigh my anecdote against theirs – its a pretty invidious position for you to be in I accept. But I do this stuff every day. I see it first hand. The APPG report is largely based on responses to surveys which we haven’t seen, which have been selectively passed on to the APPG via Womens’ Aid’s evidence and filtered again before reaching the report. Presumably therefore, what you see in the report is the most egregious few examples of poor practice (and I do accept they are poor practice).

I suspect the context to this is that many of the victims of domestic abuse who have fed into the APPG evidence session via Womens’ Aid through the surveys, will be women who have suffered domestic abuse but who have not pursued or not raised / proven those allegations in the family court proceedings, or who have not articulated their experiences in a way which has led the court to see the case as a case with live domestic abuse issues (this may happen because someone is in person, is not competently represented, or decides not to pursue allegations for a number of reasons from vulnerability to pragmatism. It does sometimes happen because the court doesn’t “get it”, for example rigidly seeing matters simplistically as “historic” domestic violence or non-physical behaviour which is thus “not relevant”). Where a court has identified issued of domestic abuse and they have been proven, there would in my (14years) experience always be an assessment of the capacity of the abusive parent. But where domestic abuse is either not pursued / relied upon or not proven, the courts quite properly proceed on a different basis. The problem with surveys of this sort is that they represent the subjective experience of a self-selecting class of people – and may not always help us to identify what has really gone on. (I think it is reasonable to assume that Womens’ Aid circulated these surveys by email to all their partner organisations encouraging them to get service users to respond. This is how such things usually work, and unless robust safeguards are in place they can produce a highly selective sample). My supposition may be wrong, but the point is we don’t really know.

The #webelieve hashtag has been around for a while, in a number of contexts. We see in this report echoes of the #webelieve mindset :

Concerns were also raised at the Hearing that when survivors of domestic abuse open up about their experiences of domestic abuse in the family court setting, they do not always feel believed….When survivors of domestic abuse are already faced with the trauma of going to the family courts or contact visits, it is imperative they feel supported and believed.

I deprecate the remark attributed to a barrister for a victim of abuse that “it was a shame I didn’t have a couple of black eyes…”, but what is lacking from this report is any acknowledgment of the requirement for a fair trial (for both parties) and the need for evidence. A part of our job as barristers is to tell a client when the evidence is weak and we think it is unlikely we will be able to prove a particular allegation. Another part of course is to do our best to prove such allegations and to develop skills and expertise to enable us better to prove those more intangible types of allegations, such as coercive control. So, whilst the black eye quote is not appropriate, I am sure I have used the presence or absence of physical marks as a way to explain to clients why some allegations are more difficult to prove than others. We do victims of abuse a disservice if we set them up to go through the trauma of cross examination without them being properly informed about the likely difficulties and risks. And I say this loud and clear : whilst it is absolutely my job to represent and support my clients on the basis of the account they give me it is no part of my job to BELIEVE my clients. It is a demand many clients make (both complainants and alleged perpetrators) but we do our best job when we maintain objectivity – and I politely explain this to any client who expresses the view that I don’t believe them. Lawyers who believe because of the mere fact of allegation are poor advocates and poor advisers. So whilst I wholeheartedly agree with the APPG report’s concerns about the limitations on legal aid in this area (to some extent remedied since then) let’s be clear – legal aid is not about #webelieve. It’s about giving a recipient a fair trial so that she may have a proper chance to persuade the judge to #believe her. Of course the maintenance of professional objectivity and distance does not mean one can’t be compassionate, or kind, and does not mean that I don’t in fact often believe my clients. I do. But experience has taught me it is dangerous to do so and I put it to one side – because sometimes the most compelling clients (both alleged victim and perpetrator) turns out in fact to be unreliable.

It is also no part of a court’s role to indicate that it believes a victim before hearing the evidence, in order to make her feel comfortable with the process, or for any other reason. What a victim can expect is scrupulous impartiality and a non-judgmental approach for her and for the person she is accusing, and a thorough consideration of the evidence she wishes to present.

Of course, one of the consequences of LASPO was the increase in the numbers of those accused of abuse being unrepresented, and having to cross examine their alleged victims. I agree with APPG that this should not happen (sadly my attempt to find a work around in Q v Q (HMCTS should pay for representation) was foiled by the Court of Appeal. Rats.). The report says :

The APPG was alarmed to hear that if a survivor of domestic abuse is a litigant in person, it is far from unusual for them to be cross-examined by their perpetrator or in turn have to cross-examine their abuser. Women’s Aid’s 2015 survey of survivors of domestic abuse found that a quarter of women had been directly questioned by the perpetrator. This practice is unheard of in the criminal courts and as already noted, family court cases involving child contact can be used by the perpetrator as an opportunity to continue persistent, coercive and controlling behaviour – so it is wholly inappropriate in the family courts too.

But that survey is of 91 women, so about 20 respondents said they were cross examined. It’s 20 too many, but again, this is at odds with my experience – I don’t think cross examination by an accused is “far from unusual” (sorry, I’ve created another double negative – I think it is unusual – and I think where it does happen it probably happens where the abuse is historic or on the less serious end of the spectrum (tar and feather me for saying it, but not all violence is the same)). I think judges strive to work around and avoid it. I may be wrong, but I’m not really satisfied that a survey on this scale, the methodology of which is unclear, is a good enough basis from which to extrapolate as to the general position. There is no note of concern in this report on behalf of any falsely accused man that he may have to fend for himself against allegations that could prevent him from seeing his child or result in his imprisonment if pursued by the police.

The report contrasts the special measures in place in the criminal courts with those in the family courts. The CEO of Womens’ Aid is reported as saying :

“We found that over half of women that we surveyed who had experiences of domestic abuse and experiences of the family court had no special protection measures available at all.”

Special Measures provision is far from universally perfect in the Family Court (the regularity with which the video links fail would be funny if it weren’t so serious) – but the biggest problem is the court estate, which is not a problem likely to be solved any time soon. But I doubt that over half of all victims of domestic abuse are without special measures, where those measures have been requested. Wherever I have made a properly constituted application for special measures it has been granted, even if it has worked imperfectly. I have had a number of clients who have positively refused special measures because they feel it is important to confront their abuser. If the family courts are behind the criminal courts it is because the resources are not there and the legislation is not there. In the absence of provisions prohibiting cross examination of a complainant by the accused, and in the absence of provisions specifically requiring special measures, family judges and lawyers have for several years now done their best to provide special measures anyway. There is now a significant body of guidance about vulnerable witnesses, of whom victims of abuse are but one subset. It’s also worth asking whether or not the respondents to this survey are talking about experiences of more than a few years ago, when special measures practice was I think significantly less developed.

It is said (fairly I think) that Practice Direction 12J is not routinely implemented. The report says that

If Practice Direction 12J was always put into practice and strictly followed rather than being trumped by a culture of ‘contact at all costs’, a number of the pressing concerns raised in the Parliamentary Hearing would automatically be addressed, and the safety and well-being of women and children would be far better protected. The APPG would be eager to see Practice Direction 12J effectively implemented across the country and better data collected on its implementation.

I don’t accept that “contact at all costs” is the problem here (It is right that the senior courts have often said (following the ECHR) that all efforts must be made to re-establish or maintain a relationship where that can be safely achieved, before writing it off, but that is not equivalent to “contact at all costs”). The problem is the constant drive to move cases on and get them to a final outcome swiftly and efficiently, the constant pressure on resources and time. Fact finding hearings are an inconvenience. The Child Arrangements Programme, whilst it clearly flags PD12J and the need for it to be followed, coupled with the continuous reminders from the senior judiciary about the need for robust case management has in my experience, tended to foster a conveyor belt mentality of pushing cases through, with an unhealthy reluctance to properly explore potential risk issues fully. I think also that the policy of the push towards mediation has tended to overemphasise the narrative that private law disputes are a collective parental failure, where in cases of domestic abuse one party may not be in a position to safely resolve a dispute and is stuck.

I was alarmed to read that:

…anecdotal concerns were raised by the expert witnesses that domestic abuse against a mother is not seen by the judiciary and other professionals in the family courts as an issue affecting the child(ren) involved in child contact cases if there has not been any direct violence towards the child(ren). These concerns only confirm the current lack of understanding about the impact of witnessing or hearing domestic abuse has on a child.

I say without hesitation that if a mother is represented through legal aid or otherwise and a judge or magistrate indicates that domestic violence is not relevant because it was not been directed towards the child I would expect that to be robustly and immediately challenged. It is wrong. If this is regularly happening I would expect to see appeals. If it is happening and not being challenged then people are not being properly represented. Whilst I have seen some gaps in the knowledge of judges and magistrates, for example about the pernicious effect of controlling non-violent behaviour, it is very well established that the witnessing or hearing of domestic abuse is harmful to children.

It is worth noting at this point that I am meeting an increasing number of colleagues at the bar who are refusing to take on this work any more because it is simply not financially viable. I have not had to make that decision myself yet, because the proportion of this work I am doing these days is far outweighed by other types of work – and so I can absorb the loss. It was always poorly paid, but since LASPO it has become more demanding due to the fact that ALL the cases are complex as they involve DV and mostly involve LiP on the other side which means more work for the single advocate involved. I worry that the seniority, experience and expertise of advocates appearing at these hearings may be dropping and that this may be or may in due course affect the quality of representation and the ability of the court to do justice.

It is said there is unsafe supervision ordered. However, there is a single (very worrying) example given. There doesn’t seem to be evidence of that being a more widespread problem. The courts are often reliant upon family members to supervise or support contact because they have no other options available. Particularly where older children are not engaged well in a contact centre environment and are asking to see a parent, this may be the only viable alternative.

The report seems to operate on the assumption that the judiciary do not get specialist training in domestic abuse. They do. This is not to say however, that it could not be improved – in particular in the areas of non-physical abuse. I also wonder to what extent judicial training extends to or trickles down to the Lay Magistracy and legal advisers.

A lack of risk assessments and problems with funding these is a problem rightly identified.

And finally we get to the conclusions. I don’t think sweeping comments like this, with a limited evidence base, are helpful :

At present, women survivors of domestic abuse face a number of unacceptable challenges when in the family court. Their own and their children’s safety is frequently being compromised…whilst there is some good practice, the family court is regularly failing to ensure the protection of women and children’s safety and well-being through allowing the cross-examination of victims by perpetrators, and the lack of available special measures.

The use of regularly and frequently is problematic. I’d certainly go with sometimes – and that of course is too often.

I am not aware of any of the recommendations being actioned since April (the minutes of the July 2016 AGM don’t really touch on the report at all). I am doubtful that they will be in the current context of a wild panic about the increase in care cases and a prioritisation of public law and de-prioritisation of private law, and in the context of the court modernisation programme and the move to virtual courts. I am not sure that these various debates are linking up. They should be.