The other day I was trawling back through very old Pink Tape posts looking for something I thought I’d written back in 2009. I was struck by how often I was writing on this blog, at at time when I was between babies and back at work. In one month there were about 20 posts. They were mostly short and sarcastic single issue observations on some piece of news, and many of them are difficult to understand as the linked material is no longer available, but it’s a reminder of how the rhythm of life changes over time.

Now, as I am on the last straights of my unhappy approach to my half centenial, and freshly back from yet another doctor’s appointment where I am poked and prodded and generally made to feel as if every ailment or ache is just an inevitable consequence of my near geriatric status, I write less often but (I hope) in a more considered way. At any rate my posts tend these days to be longer and more in depth. My lifelong struggle to live ‘less is more’ continues. I aspire to the discipline of concise prose and rarely achieve it. I dare say that today, I will fail in my aspirations yet again.

Today though, I thought I’d release into the wild a few unformed thoughts which are taking up vital space in my brain, rather than leaving them unthunk, unspoken and ultimately forgotten. Travel with me into the unstructured chaos of my brain.

Firstly, the contradictions in our approach to ‘public law’ children as compared to ‘private law’ children…this is a topic that has bothered me a lot of late.

On public law planet the statutory timescale is 26 weeks for the entire case. Of course, it isn’t actually achieved that often, but it is what we aspire to and reference continually, even as we pass the exit 26 and speed on down the litigation highway.

Meanwhile on the neighbouring private law planet, in some courts Cafcass are apparently taking 28 weeks just to write a s7 report. How is that so? Neither parenting assessments, nor even expert psychological or medical reports take such a length of time in care proceedings. Typically a report in care proceedings will take 12 weeks, at a push 16.

As noted by a family lawyer commenting on the 28 week timescales, it used to be said that Cafcass were the ‘eyes and ears of the court’. Extending the metaphor, this delay means that judges on private law planet are working blind for six whole months (bar a short safeguarding letter). In those cases where a s7 report has been directed post-findings, the court won’t exactly be working blind, but the family will have been in proceedings for probably 6 months already before the report is even directed. The pressure on families, and the impact of delay is huge.

Relatedly, I tweeted something the other day which didn’t go down well with those who subscribe to the view that domestic abuse should always mean the end of a relationship between child and perpetrating parent. My error was to use the word ‘flaw’ to encompass parents who perpetrate domestic abuse under that umbrella, which some thought was proof positive that I – and all lawyers – minimising abuse. Whilst people are entitled to their opinions, I think those conclusions were a product of the polarising, flattening medium of twitter, which doesn’t do nuance and constructive dialogue very well. There are plenty of examples out there (if anyone cares to look) of me banging on about how important it is NOT to minimise abuse, and raising concern that it is still happening. But it is also true that I don’t accept that any finding of domestic abuse should automatically result in the end of a relationship between child and parent without individualised consideration of the risks and benefits of it.

Anyway, more important than that explanation, is to try and articulate the unformed thought that was underlying what I was imperfectly expressing on X. When I used the term ‘flaws’ I was trying to find a phrase which captured all the various types of harm (intentional and unintentional, culpable and non-culpable, abusive and non-abusive) that we often see causing significant harm to children who are the subject of care proceedings. What I had in mind (and failed to articulate in a short tweet or three) was that on planet public law a local authority has a statutory duty to promote reasonable contact even where a parent (mother or father) is the perpetrator of abuse or has caused heinous harm in some other way. Even in cases where it is said a child has been the direct victim of physical or sexual abuse contact is often ongoing, albeit under supervision. If it is said that contact should not be promoted the local authority must seek the approval of the court under s34(4) Children Act. If a local authority wants to be authorised to permanently remove a child from the care of both parents, or to place a child for adoption they have to pass a very stringent legal test. It’s very much not a case of ‘domestic abuse = no contact’. Further, children are often rehabilitated to the care of fathers with a history of domestic abuse (often against the mother), sometimes where the parents are still in a relationship but the risk is thought to have reduced, and sometimes as an alternative to the mother caring (for example where a mother has an uncontrolled drug habit the children may be placed with a father notwithstanding strong evidence of a history of domestic abuse). Sometimes a mother, recognising she is unable to realistically persuade the court she can care safely, will accede to this plan because it’s better than foster care or adoption.

In public law proceedings one of the questions is often – ‘Can we keep these children safely in their family some how?’, whereas in private law proceedings, the context is always parental separation and dispute, and allegations of domestic abuse often result in a prolonged suspension of contact at least whilst allegations are investigated, and increasingly often no contact (or no direct contact) at the end of the case. However, in these cases, even where really serious domestic abuse is proved, a parent will more often be expected to manage contact after proceedings conclude entirely on their own, and without (in my view) proper regard to the ongoing impact and risks for both child and adult victims. Indeed, on planet private law a mother is often compelled to promote contact with a father that would lead to criticism for a failure to protect if she were to move to planet public law. On planet private law there is often a beauty contest between parents, where one parent complains of domestic abuse and the other counters with alienation – and bafflingly given their approach in care proceedings, local authority social workers drafted in to write s7 reports seem often ready and willing to reach conclusions that the problem is ‘alienation’. In public law the focus of the contest is between permanent removal (including adoption) by the big bad state – and keeping the kids with someone – anyone  – in the family network. The villain of the piece is the state not the other party. Courts are often reluctant to allow factual disputes about domestic abuse between parents to be fully litigated on planet public law (if its not the precipitating reason for issue) and the court may go no further than some bland finding of ‘abuse’ which does not clearly identify a single perpetrator, or than making findings against a mother that she has exposed the children to a risk of significant harm as a result of a pattern of entering relationships with abusive men (and failing to leave).

I’m talking generally, and anecdotally, of course. Each case is different and not all fit the above pattern. But those are the confusing patterns I see looking back over the last 20 odd years I have to draw on from experience.

How do we reconcile these differences in approach? I think they are irreconcilable. When I zoom out the common thread from my perspective is that the mechanisms and enduring impact of domestic abuse are better understood more often, but that the family court continues to act in contradictory ways, depending on the context.

However, that is merely an observation. What we do about it I don’t know. Discuss.

*goes off to do some work…wanders back*

What else is on my mind. Let’s see… *rummages*

This was a lovely, if depressing article in the Guardian: Chortle chortle, scribble scribble: inside the Old Bailey with Britain’s last court reporters 

There’s plenty more in there, but since embarking on this post I’ve developed a head full of cold and a scratchy throat, so I’m off for a lemsip before getting back to some proper work.