Staying Sane in Family Law

The lovely people at Bath Publishing* are running a series of workshops to launch a new book they are publishing by Anne Marie Carvalho.

The book is called Staying Sane in Family Law – and the name Anne Marie Carvalho is one which often crops up in the context of wellbeing discussions.

For a fee of £150 you get to attend one of the workshops and your own copy of the book.

If I wasn’t in court elsewhere on the day of the one local to me I would be going.

For those interested details are here: https://bathpublishing.com/products/staying-sane-in-family-law-seminars

* Declaration of interest. They are lovely because they publish my book Family Court Without a Lawyer, so obviously have very good taste in authors. I haven’t read the book, but I do know that Anne Marie is highly respected in her field. And anything that can help us stay sane (or regain some sanity) in the crazy world of family law is A. Good. Thing.

Court Service Cover Up?

NB I think this post was accidentally published yesterday in half finished form, something that has never happened before. It probably didn’t make a lot of sense. However, this is now the tidied and completed version.

The BBC Headline reads:

Courts service ‘covered up’ IT bug that caused evidence to go missing

The report claims that the upshot is that ‘judges in civil, family and tribunal courts will have made rulings on cases when evidence was incomplete.’

This news is pretty alarming, isn’t it? But also somewhat impenetrable. What does it actually mean? What was missing? How often did it happen? How important was it and did judges know information was missing? Because all we have is a news report about a leaked internal report, the detail is pretty much absent.

The report tells us that the software concerned is ‘known variously as Judicial Case Manager, MyHMCTS or CCD – is used to manage evidence and track cases before the courts. It is used by judges, lawyers, case workers and members of the public.’ I *think* that this encompasses the ‘portal’ that lawyers and judges now use to upload and access documents in public law children cases (why the same system has to have a bunch of different names is anyone’s guess), but in any event the fact that there are bugs in this system is certainly NOT a revelation. There have always been bugs in the system. Even if a document IS on the portal it isn’t always easy to find (though this lack of navigability is somewhat reduced with recent updates). Even before the portal we had analogue version of ‘missing documents’ problems – witness bundles that had been delivered and signed for were forever disappearing in a black hole, never to be found again, and judges were often not provided with copies of documents filed by email to the required court inbox, because there were not enough staff to check the inbox and forward them to the judge in time for the hearing (actually these last two still happen).

So, to that extent this is not news. Twas ever thus.

Here though is what is said specifically about family courts:

In the family courts, a different IT flaw caused thousands of documents to go missing, sources say.

In one instance, it is claimed a fault caused more than 4,000 documents to go missing from hundreds of public family law cases – including child protection cases.

The BBC understands this bug was discovered in 2023 and may have been present for some years. We have been told it has since been resolved but that no investigation was carried out to establish potential impact on case outcomes.

We asked the MoJ if any emergency child protection cases had been affected.

It did not respond to this question.

I’d like an answer to this question. I hope one will be forthcoming, but other than the quotes in this piece (regurgitated in other papers and online sources) I haven’t seen any substantive response from the MOJ / HMCTS, and certainly no announcement of further enquiry (see MOJ page here, where press releases are usually found, and HMCTS here). The vibe is very much ‘nothing to see here!’…

Former President of the Family Division is alarmed though, saying:

These hearings often decide the fate of people’s lives…An error could mean the difference between a child being removed from an unsafe environment or a vulnerable person missing out on benefits.

I suppose that is true, but fortunately there are safeguards, at least in those cases involving lawyers – which is always the case in public law (Child protection) cases, where all the main players will be publicly funded. Those problems identified above were and are worked around by checking the judge has right documents and by forwarding those she does not. The lawyers will a) compile the bundle, making sure it has the key documents in it b) make sure the judge has it c) direct the judge to the key documents within it (in their case summary or reading list or orally at the start of the hearing and d) ensure that in the judge’s reasoned decision there is reference to those key documents, if not explicitly some indication that they have been read. In the course of a trial there are plenty of opportunities for a document that has gone astray or been missed by the judge to be identified as missing, provided to the judge and read. In cases where there are no lawyers (or where a key player doesn’t have a lawyer), or in urgent hearings there is a greater risk that a document is missing and this is not identified. Even then, if the document is obviously key to the decision the judge has to make, they are likely to identify that they need it and to ask for it it. So, whilst Sir James is right in principle – in practice, I am not so sure we should all panic and assume that many miscarriages of justice have flowed from this disastrous IT failure.
It is still obviously right to call it a disaster though, because the point is, even if I am pretty sanguine about it, we just don’t know. And individual litigants just don’t know. And will rightly be worried about it, fretting that it might have made all the difference to their family, their child. So too, they will understandably see this as more evidence of a system that is at best systemically broken and at worst corrupt and self serving. Why weren’t these issues identified and shared with stakeholders until a leak brought them to public attention with the help of the media? And why have HMCTS / MOJ not even considered the question about impact on individual child protection cases even been thought sufficiently serious to warrant an attempt at an answer?
That for me is almost the biggest worry. the lack of transparency and the failure of accountability, or of any recognition of how much impact these issues would have on public trust and confidence, mutliplied fourfold when they emerge through apparent whistleblowing rather than voluntarily. The passage in the BBC report about the ‘culture of cover up’ is most alarming:

The BBC has spoken to several separate sources within HMCTS who liken the situation to the Horizon Post Office scandal, where executives tried to suppress evidence of the system’s flaws.

One says there was “general horror” at the design of the software, introduced by HMCTS in 2018, which they claim was “not designed properly or robustly” and had a long history of data loss.

Another says there was a general reluctance from senior management to “acknowledge or face the reality” of the situation, despite repeated warnings from the agency’s IT staff.

“There is a culture of cover-ups,” one told the BBC. “They’re not worried about risk to the public, they’re worried about people finding out about the risk to the public. It’s terrifying to witness.”

When asked, the MoJ told us several organisations had been involved in the design and development of the software but did not supply a list.

I expect – hope – we may hear more about this in due course. I hope we do, if for no other reason than to provide some belated reassurance that the systems are now robust (or will be made so), and that the ‘cultural’ issues are being tackled.

When historically I have tried to get clarity from MOJ / HMCTS about how they handle data breaches relating to anonymisation errors in published judgments, the responses have been less than clear or reassuring – I was never able to establish that any such breaches had been logged internally or self reported to the ICO by HMCTS, even where they were the responsibility of HMCTS staff rather than individual judges (to whom exemptions in relation to data protection apply). There is no reference to the ICO in the BBC article, and I don’t know what approach has been or is being taken to those issues either by HMCTS or the ICO. But I would be very interested in finding out.

Must D.A.S.H.

The BBC ran a story this week wherein MP Jess Phillips complains that the DASH risk assessment has ‘obvious problems’ and ‘doesn’t work’. From a quick read the first impression is that the tool itself is deficient, but that isn’t the whole story. The piece also acknowledges that the problem is not so much the tool as the worker:

“Any risk assessment tool is only as good as the person who is using it,” she said, adding that practitioners needed to be trained to understand that risk was dynamic.

People were killed even when deemed to be at high risk, she added. “The grading system won’t immediately protect you… It is the systems that flow from those risk assessments that matter much, much, much more than the score.”

For those who don’t know, DASH stands for Domestic, Abuse, Stalking, Harassment and Honour-Based Violence assessment, and is described by the BBC as ‘a list of 27 questions put to victims, to 24 of which they answer yes, no or don’t know’. You can view the DASH and guidance here (although the version available online is said to be distinct from the one used by the police it does look almost identical if not identical). Family lawyers are very familiar with it – we see it almost every time we receive a bundle containing police disclosure, because almost all police forces use it as a tool when called out to domestic incidents or when dealing with complaints of domestic abuse. The familiar questions and answers appear in police log after police log, sometime repeatedly for one family, sometimes asked of both parties. Typically the responses are staccato responses, in a single yes / no format, or with a short descriptive phrase. Sometimes they are later interrogated when allegations of abuse are tried and tested by cross examination – why didn’t you mention the rape when you were asked questions by PC Plod? As recorded in the police logs we see there is often little to no analysis of the responses, although there is more often these days oversight of the logs by a second officer responsible for compliance, who may redirect the officers on the ground to go back and complete certain tasks before the matter can be filed or progressed. When a victim changes their mind and wishes to retract a complaint in the days after an arrest, or refuses to be safeguarded there may well be some brief analysis included in the log – but more often the yes/ no responses are simply followed by a recording that the case is ‘medium’ or ‘standard’ risk, and a referral is made to an external domestic abuse agency, which in practice probably means that the victim is given a web address or phone number to call, or that the agency is given their details. From what we see in the family court precious few of these referrals go anywhere, often because the victim doesn’t follow up or engage. Often we see a log closed due to ‘evidential difficulties’ with the victim signposted to organisations like NCDV to obtain a non-molestation order (in itself a limited form of protection since such organisations will typically not support victims to make non-emergency applications). It is only when a case is identified as ‘high risk’ that a referral to a MARAC is made (multi-agency risk assessment committee). It is surprisingly uncommon in the papers I read (given the gravity of alleged abuse described) for a family / victim to be referred to a MARAC.

It’s important to say that what I see is only a narrow window into the use of the DASH – and my overall impression is subjective, and based on police logs which may not be a representative sample. Plus, what is recorded in the log is not necessarily a complete record of all the events and analysis that has taken place. But I have seen a lot of DASH risk assessments, read a lot of police logs, and tracked through investigations from start to finish with an outsider’s after-the-event perspective as I go about my work preparing for a trial of who did what to whom – and I have to say that more often than I am comfortable with I am left wondering why the dots were never joined, and why the police didn’t see the case as high risk. Easy for me to say in the cold light of day, from the comfort of my office, with time to reflect and nothing else to focus on. I’ve seen the Body Worn Camera footage too, and I know its pressurised and fraught for officers at the scene, and how the demands of each shout compete with the requirements to log and deal with admin. But still, when I think about how effectively and reliably victims of abuse are identified, supported, protected in the cases I see – its a very mixed bag.

I’ve seen at least one post on LinkedIn from an IDVA or DA worker in response to the BBC piece complaining effectively that condemning DASH is throwing out the baby with the bathwater and that the problem is very much about a lack of training and the way the tool is used. I’m inclined to agree. Some officers really get it, but some really don’t – an understanding of domestic abuse and the dynamic nature of risk (it changes over time – and particularly that it increases at separation) is something that takes time, experience and training to grasp. So that is not a criticism of individual officers: it’s a training issue.

But its also a resource issue – sometimes victims of abuse are slow to help themselves, sometimes they don’t even see abuse as abuse, sometimes they find it hard to trust police, and sometimes they feel unable to be honest about what is happening to them. And the police are always overstretched, and usually firefighting to manage situations of acute and obvious risk. So it is easy to see why, when it becomes clear that a prosecution isn’t going anywhere (‘evidential difficulties’ etc), from a police perspective it’s job done. Over here in the family court though, we see what happens after the police / CPS decide to NFA – life goes on, abuse continues, often it escalates, sometimes a victim does manage to exit the relationship under their own steam, and sometimes social services intervene. The family lawyer looking in and looking back has the advantage of witness statements prepared in the victim’s own time, schedules of allegations, and a raft of other evidence not available to the police. It’s easy for us, from our privileged vantage point to see risk levels that the police perhaps did not.

So I am left with an uneasy sense that the way a DASH risk assessment often functions for overstretched police officers and forces is to give the police a green light to stop worrying and move on whenever the score tots up to ‘standard’ or ‘medium’ – like a sort of magic wand waved: ‘mischief managed’, ‘risk assessed’. If I’m right about that then DASH as currently implemented really isn’t effectively managing or reducing risk, and sometimes it may even be increasing it by providing false reassurance to those tasked with protecting the public. The idea that DASH is being used as the complete answer or shortcut to risk assessment rather than as part of a more holistic, ongoing consideration of risk, also features in the BBC piece, so it doesn’t seem that my hunch is completely without foundation.

It’s beyond my pay grade or expertise to know how to solve that, but it probably lies both in training about how domestic abuse operates and manifests, and in how to make good use of the DASH risk assessment (both of which themselves require resourcing) – and in the proper resourcing of the agencies to whom the police refer, many of whom operate on a shoestring and are themselves limited in the support they can offer.

It’s good that there is now a debate about this, and a review of the use of DASH – but I don’t think there is an obvious quick fix to issues which are probably systemic.