pic: sloth 33 (thanks)

Last week NAPO (The Trade Union and Professional Association for Family Court & Probation Staff) and PAS (Protection Against Stalking) published a “dossier” of 33 cases that “exposes shocking use by convicted murders, rapists and stalkers of family and civil court processes to continue to cause fear and alarm to their victims.  The briefing details cases of a convicted sex offender applying to the family courts for contact with his own children who he had abused and of convicted murderers also asking for contact orders with children of the mothers they had killed“. You can read the news item on the NAPO website here (where you can also download the dossier itself), or you can read it regurgitated lock-stock in last Sunday’s Observer: “Rapists abuse courts to harass victims”.

I first picked up on this when reading the Observer last Sunday. In essence the report is flagging the problem of how the court process itself can become simply a new forum for the continuation of a pattern of harassment. And it is quite right to do so. But (you knew there would be a but, right?) But…

The dossier is a compilation of 33 of the more extreme cases (rape, sexual abuse, murder of one parent by another) in which NAPO and PAS say this issue is most starkly demonstrated. I myself recall being involved in one case where the father who had murdered the children’s mother was highly obstructive in respect of plans for the children to be adopted by the maternal family, who insisted on being produced from prison for every hearing, resulting in much hanging around and anxiety – and it really was quite difficult for many of us (on all sides) not to simply tell him to wind his neck back in.

But I digress. As I read the Observer article something made me unsettled. How instructive are those extreme cases? And what is the “evidence” for the suggestion that “men convicted of serious offences…exploit…the legal system to instil fear in their victims” on a more regular basis rather than just at the extreme end of the scale? Initially my annoyance was at the newspaper for not explaining more thoroughly what this evidence was. When I read the example quoted from the dossier which had been cherry picked by the journalist I had to check I hadn’t inadvertently picked up the Daily Mail:

“In one case a convicted sex offender who was serving a long sentence for possessing thousands of images of him abusing children, including his own, applied to have contact with his children. According to Napo, the judge allowed the application, funded by legal aid, because he was worried that the offender would take his case to the European Court of Human Rights in Strasbourg if it was rejected. Only after repeated court hearings was the case thrown out, leaving the mother of the children traumatised.”

Verily unputdownable…”Ha”! I snorted, noting the reference to “vexatious applications”, slipped in so as to infer that all such applications must be de facto vexatious. “Next they’ll be suggesting that PR should be removed on conviction”….Oh. They ARE suggesting that. Crumbs.

And so it was not long before I thought, “I’d better go and read said dossier, to establish whether it is dodgy or kosher”. I hoped it was just a not massively illuminating article that had cherry picked from the 33 cherries (tripled hearsay with a cherry on top) and which had thereby inadvertently slightly undermined a probably very good point that needed to be made. I sort of wish I hadn’t read it. Because try as I might, I’ve not been able to get rid of the itch to write this post…

There are 33 cases cited. The source appears in almost all to be “a CAFCASS family court worker”, and there is no suggestion that any verification was sought from court files, judges, lawyers or parties involved. In one or two cases studies it is apparent there has been some input from the Mother’s lawyer. In none is there any indication that any other person has been consulted, including the judge (although there is some quite strong criticism of judicial attitudes and conduct). In essence, as far as one is able to tell, the dossier consists of the strongly held opinion of one ? or more ? CAFCASS family court workers. It is unclear whether or not they are private law Guardians, although it seems reasonable to assume that they may be.

The cases are not, and do not purport to be, representative of the daily practice of the courts. It is unclear how the cases were identified or selected, whether CAFCASS FCWs were invited to submit case studies that supported the general proposition, whether there was any weeding or vetting.

Many of the case studies give considerable amounts of details about the offences committed, the sentence, the initials of the parties and the sequence of events in the proceedings. I am concerned that some cases may be identifiable, if not to the public at large to the nosey parkers of the google generation or to those with local knowledge. It would have been sensible I think for the authors of the report to state what authorisation / permission has been granted both by CAFCASS and the Court for information to be disclosed or published (and what consent from the parties) to avoid concern or criticism about breach of privacy, identification of the parties or the child. I would have assumed that this had taken place were it not for some of the legal inaccuracies and confusions in the document and the curious criticisms of various judges.

It has been suggested to me that CAFCASS Family Court Workers would not have been permitted to participate in this project without undergoing an internal ethics process. But I don’t actually find that terribly reassuring – based on the information presently available. I don’t know anything about that aspect of the internal workings of CAFCASS, but it rather begs the question –  why was it considered appropriate for CAFCASS Family Court Workers to publish their very personal opinions about specific cases in a way which demonstrates that a number of CAFCASS family court workers struggle with the concepts of due process and the legal principles that most of us hold as central, and in a way which suggests that there are some parents whose applications should simply be binned on their say so?

The case studies and the body of the report are littered with gasps of horror at the notion that these men should ever be granted legal aid (they are all men – even the one example of a couple who were mutually violent describes the female as the victim), and almost as many gasps of horror at the proposition that these men should NOT be granted legal aid (in case they have to cross examine their victims), and then gasps of horror at the notion that these men should actually even be allowed to make an application, cross the threshold of the court even accompanied by Group 4’s finest chaperones, or that they should have any rights at all. I could write a long ranty essay on why they should stop hyperventilating but this will do the job as well: how do we know which of the nasty men we should write off as parents without allowing them to apply to court so that the court can investigate? Huh?

I’m not dismissive of how awful it can be to be on the receiving end of even one application from an abusive ex, let alone where applications are protracted or multiple. And it is plain that, even allowing for a certain amount of selection or artistic licence in the vignettes contained in the dossier, these are some pretty awful cases of violence and harassment. But actually, what I think a number of the case studies prayed in aid suggest is that the system is doing it’s best to strike a balance between the need to investigate the welfare issues, the need to protect the victim (or alleged victim) and the need to afford the perpetrator (or alleged perpetrator) his article 6 & 8 rights.

Let me give some examples. In fact, rather than cherry picking I’m just going to go through them. Got your cuppa beside you?

Take case study 1, the one quoted above as being a case where the judge was too weak to assert himself for fear of the wrath of the ECHR. More likely is that the judge quite properly applied the HRA to the facts of the case and determined it was not appropriate for the application to be determined summarily, and what is quoted is the CAFCASS Officer’s interpretation as a non-lawyer of what has happened. What is not apparent from the selected quote is that the application for contact was refused. Of what value is this piece of disembodied opinion without us being able to refer to the judgment?

Case study 2 is one which is in strikingly similar to the case of Re T (A child – murdered parent) [2011] EWHC B4 (Fam) (although it does not appear to be the same case if accurately reported) in which the court stated that:

“There was no presumption that when one parent murders the other, the offending parent has to surmount a prima facie barrier of no contact.”

Case study 3 is another parental murder case, where it is said that “CAFCASS took the view that it would not be proper to process the application. His lawyers have argued that failure for it to be considered would be against his rights. Nevertheless the judge let the matter run.” So CAFCASS appear to have attempted to stonewall the application, and appear to propose that there should be some kind of strike out approach. That is of course possible within the rules, but on the facts of this case (about which we know little) the judge evidently did not agree. There are no details of the outcome – the application may have succeeded or (more likely) failed. Or it may still be pending.

Case study 4 is another parental murder case. We are told that “Cost benefit analysis was found against the perpetrator. The judge is mindful to put a ban on any further applications until such time as the children are considerably older.” It is difficult to understand whether this reflects a judgment dismissing the application on proportionality grounds, and going on to make a s91(14) barring order or whether this is a record of some kind of informal discussion.

Case study 5 involves a father serving a sentence for offences but not against the mother, although the relationship was said to be violent to the extent that furniture was smashed.

“After years of harassment and extremely disturbed sexual offending and drug misuse history [CAFCASS] believe contact would be of high risk to the mother and child, and that therefore the contact applications were vexatious.”

I can see lots of reasons why an application might fail, why contact might be high risk and may need to therefore be very carefully managed and probably supervised, but there remains a non sequitur between the proposition that contact would be high risk and the proposition that this leads inexorably to the application being vexatious. That a case is weak on the merits does not mean it is vexatious.

Case study 6 is illustrative of the fact that this evidence is coming from individuals with limited grasp of the law: “It was decreed that he couldn’t be left alone with the children at any time.” Papal decree peut etre? It appears to be a case involving an extremely persistent offender who has been the subject of many attempts by the criminal courts to control his behaviour with limited success. In fact it appears that the Family Court’s involvement has been limited to a year, and that the traumatising effect of that process has been made worse by delay caused by the failure of the police to disclose material (or possibly the failure of the parties solicitors to obtain it promptly?) and by the abject failure of court staff and legal representatives to ensure proper protection in the form of a separate waiting area etc was made available for the mother.

Case study 7 – the court disagreed with a CAFCASS Officer who did not consider it appropriate to seek a child’s wishes and feelings. Insufficient information about the basis of this decision to make this informative as a case study. There is a complaint thrown in about the fact that the Father was eligible for legal aid whilst the Mother was not, owing to her income. In general it is probably marginally less awful for an individual facing their abusive ex without their own lawyer to at least have the buffer of another lawyer, and the advantage of the ex being given proper advice about the aspects of his case which are a waste of time.

Case study 8 – doesn’t really tell us anything other than that a Father objected to a CAFCASS recommendation and complained of bias, but subsequently relented and went with the recommendation.

Case study 9 – sets out a background of harassment and arson and goes on to say that “Astonishingly according to the Cafcass family court worker the application was taken seriously.” Sorry? Of course it should be treated seriously. It quite possibly shouldn’t ultimately be granted, but I don’t think we do justice in this country by literally laughing people out of court.

Case study 10 is another example of a perpetrator carrying out harassment and verbal abuse within the court building. This is grounds for the making of a non-molestation order or for the police to take some action, and will no doubt be relevant to the final outcome of the children case, but not in itself a reason for summary dismissal of it. Complaint is made that any hearing was afforded at all.

Case study 11 sounds thoroughly horrible.

Case study 12 appears to be sourced from a CAFCASS officer, and sets out her view of the Father’s motivation. We are of course in no position to judge the validity of that view one way or the other, particularly since the application has not yet been adjudicated on.

Case study 13 is a sorry tale of a household characterised by long term domestic violence. Whilst it sounds as if the father was habitually violent, the rigid use of the nomenclature “perpetrator” and “victim” is a little strained where the victim served a 4 year sentence for a serious assault on the perpetrator by running him over. This language used in this case study suggests that no lawyer has been involved in the process of compiling the case study, nor in reviewing the dossier: “Twice the courts have passed resolutions against him that he can’t continue to apply to the courts“. That is probably a reference to a s91(14) order, which a lawyer would be unlikely to describe as a “resolution”.

Case study 14 – striking for the following remark: “The Cafcass family court worker has stated that any parent serving a long term prison sentence must be regarded as unsafe and the presumption should always be against any contact. Nevertheless an application was allowed by the court, with legal aid.” We know from previous use of the phrase “application was allowed” that this may mean merely that the application was allowed to proceed to consideration, rather than that an order for contact was in fact made. No doubt the application was allowed to proceed because the CAFCASS family court worker offered a view which was not consistent with case law or statute.

Case study 15 – appears to be a case where there is a background of applications to court in relation to non-family matters that have been experienced as harassing, but that the application described is a first application for contact which has yet to reach a conclusion. There isn’t really enough information to be particularly illuminating.

Case study 16 –  although the Cafcass Officer who appears to be the source of the information is opposed to contact taking place, contact has “previously been allowed”. It is unclear if that is by way of a previous order for contact or by agreement. Based on the information provided, it is evident that the CAFCASS officer’s view is not shared by other professionals.

Case study 17 – notable for the invention of a new species of injunction: the ex-partite injunction, and a father who is rigorously pursuing an application for contact. If read carefully the case study does not suggest that there has been any physical violence between the parents, although there is mention of a conviction for unspecified violent behaviour. It reads very much as if there is a lot more going on than is apparent from the short summary provided.

Case study 18 – again a case where one has sympathy for the respondent to an unwelcome application after a very difficult history but simply an application of the law, which entitles a parent to make an application, even if he may ultimately fail to secure an order.

Case study 19 – a case of a determined Father refusing to take no for an answer. Very difficult to deal with. But primarily it is the Father we should be aggrieved at, rather than the system which appears to have made some effort to deal with the application and the conduct, ultimately refusing contact.

Case study 20 – unclear if the family court has “ordered he have no contact” or if perhaps this was a condition of bail or of a harassment order made on sentence. At any rate the case study really only tells us a father with a history of harassment and violence (but where there is a background of alleged mutual violence) has made an application for contact that has yet to be determined. In what sense is this evidence of a man “exploit[ing]…the legal system to instil fear in [his] victim”. Is any application by any violent / abusive parent necessarily to be seen as an extension of the harassment or abuse?

Case Study 21 – by this stage you will see a pattern emerging. I’m not going to repeat myself. See various comments above

Case Study 22 – “He continues to make applications for contact and residence despite receiving a custodial sentence for domestic violence.” Of course there are circumstances where it may be appropriate for contact or residence orders to be made in favour of a parent with such a background (for example where he has successfully undertaken perpetrators work and where the other parent is unable to provide good enough care), but we don’t know if any of those circumstances pertain.

Case study 23 – sounds like a case where a nasty piece of work has made a mother’s life hell. But I think that the force of this kind of example is rather undermined by the overuse of opinion. There is an anxiety provoking amount of detail considering the case is still live. As with several other case studies, I wonder if the parties are able to identify themselves?

Case study 24 – CAFCASS has recommended no contact and a s91(14) bar. Based on the information provided that sounds like a sensible position to have adopted and the court may well agree.

Cases study 25 – “Astonishingly legal aid was granted”. Not so astonishing if you know that a parent is entitled as of right to legal aid in adoption cases. Even rubbish parents. Are NAPO really suggesting that all parental rights should be forfeit without due process in a court that focuses on child welfare?

Case study 26 – relates to failings in the criminal justice system not family.

Case study 27 – difficult to understand whether the private law proceedings, said to have lasted 6 years, took place prior to conviction and incarceration as a schedule 1 offender, there is no mention of domestic abuse (except tangentially) or harassment in respect of this relationship (other than via the proceedings).

Case study 28 – again, serious issues and allegations (conviction for gang related activity but apparently allegations only of dv), but all this tells us is that the court is dealing with it and is quite appropriately bearing in mind information from the police and social services.

Case study 29 – a bit unclear. Sounds as if there has been an appeal? I agree that perpetrators cross examining victims is a difficult issue, but one we are all getting more used to. I have seen different approaches from different judges and legal advisers. It can be managed but it is a real challenge, and an additional stress for victims even when reasonably well handled.

Case study 30 – A rare example of reference being made to the opinion of anyone other than CAFCASS, although unclear whether this is directly reported or routed via CAFCASS.

Case study 31 – See earlier comments.

Cases study 32 – “There are real concerns in this cases that the courts do not seem to accept the views of the children because of their age. Cafcass has privately taken the view that the regular judge has not really understood the domestic violence issues, despite the fact that there has been abuse for many years.” Privately?? Surely Cafcass has acted on its view through the appropriate channels (“the appropriate channel” not being publication of anonymous criticism via a trade union)?

Case study 33 – “the paramount issue was whether contact should occur in the first place“. I must’ve missed that bit of s1 Children Act 1989….

I’m not out to have a pop at NAPO. In fact I agree with the vast majority of what is said in the Opinions section of the dossier (although I do take issue with the proposition that “too often staff feel courts ignore the other half of the equation i.e. that a father must demonstrate that he is a fit person to exercise contact” since it does not reflect the legal position). It seems clear from the wording and content of the case studies taken with the references only to the opinions of mother’s lawyers and CAFCASS that others involved in cases were not used as source material and were apparently not consulted on the summaries of their own case which has been published by NAPO. I may be wrong in this, but I’m doing the best I can with the material provided.

It is quite something to suggest that a parent’s PR should be suspended by a criminal court when sentencing on what may be an offence against someone other than the child in question. I don’t think that this document goes anywhere near presenting sufficiently robust evidence to support that draconian proposition, although it may remind us that courts need to be ever vigilant in their management of cases involving persistent abuse or harassment. Whats more, I don’t think that CAFCASS’ involvement in this document will assist in their battle to win hearts and minds. It hardly gives an impression to Fathers that they will get a fair shot, even for those who are not the kind of monster depicted in the case studies. If I were a father reading about how CAFCASS appear to operate on a presumption against contact in cases where there has been DV I would be pretty concerned.

The distinction which I think is lacking in this dossier is that between applications which are motivated by a desire to control or harass and which may use the court process as a device to achieve that aim, and those which nonetheless are experienced as further harassment even though they are not so motivated. There is lots of evidence that tends to support the proposition that many mothers experience applications as a form of harassment, particularly if  they are victims of domestic violence or harassment.

I remind myself at this point of the assertion at the start of the dossier that “PAS and Napo have now obtained 33 cases studies from family court staff and family lawyers detailing malicious claims for contact or event attempts to halt adoption proceedings in the courts.” In my view there is little evidence in this dossier that supports the proposition either that all of these applications are motivated by a desire to harass rather than a desire to maintain a relationship with a child (something this report seems scarcely unable to countenance), although from my own experience I accept that the court is susceptible to being manipulated in this way. Further, there is little evidence to support the accusation that the courts are somehow permitting this to happen. In my experience they are striving daily to avoid it, although of course sometimes they will inevitably fail to strike the balance.

I am mindful that the authors of the report are very experienced in the field of Domestic Violence (far more than myself). I am mindful that this document is probably intended to be utilised as a lobbying tool in advance of the report of the Independent Parliamentary Inquiry into Stalking. I don’t really want to be critical of a report that seeks to highlight an important point to which I am sympathetic, but I struggle with the practice of publishing soundbites or press friendly summaries that are too focused on appealing to some concept of newsworthiness than on the nuances and complexities of matters of public interest. I get that public sector workers and their trade unions are all jumping up and down to say “Look at us! We do really important essential stuff – please don’t cut our service or our pensions!!” By all means, do a punchy press release, exec summary etc. Knock yourself out with that (although possibly avoid using the word “Dramatic” in your headline – it sort of gives the game away). Razzle Dazzle ’em. But don’t forget your knickers.

Footnotes:

I have requested info from NAPO about what permissions / ethical approval processes were sought prior to publication of the case studies but at time of publishing have received no reply. I will publish any response if received.

The Family Courts regularly publish Practice Directions and Guidance Documents concerning the appropriate management of cases involving domestic violence, including one last year in respect of the murder of one parent by the other: Guidance was given in the case of In the Matter of A and B [2010] EWHC 3824.