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.