Musings on new fangled equality

Just a thought. I’m not trying to be controversial or nuffing. But it did occur to me today that whilst the clamour for a presumption of equal parenting is all well and good (I agree its a solution that should be given serious consideration in most cases, but not that this should be elevated to a presumption) its something which is really completely novel as far as the history of the family is concerned. And I began to think about what equality really means in the context of parenting.

I’m all for equality of opportunity as far as parenting is concerned. It doesn’t matter to me whether its Mr Mom or Lady Cab Driver. Or a shared arrangement that defies the traditional homemaker / breadwinner paradigm.

However, whilst I’m no historian, I can’t think of any time in history or any culture where the role of primary carer is or has been generally  split equally between both parents. Aside from cultural norms and historical societal organisation into very gendered roles, there remain all sorts of practical and financial reasons why one parent most often carries out the bulk of the care of the children. It’s still most often the mother who performs this role, but there is no reason why it needs to be her as opposed to him.

I pause here to observe that even for topsy turvy families like mine where there is a gender role reversal from the traditional female carer : male breadwinner, it is quite often very hard for both of us to shed our guilt for not providing (him) or not being there to kiss it better (me): gendered expectations about our roles as parents are deeply ingrained in us all whatever our philosophy or intellectual belief. I go out to work: I feel like a bad mother, even though I know better. But there is no reason why the carer has to be the mother. And courts must ensure no prejudice in that respect.

But I want to draw out a distinction between avoiding discrimination in our attitudes to who should provide primary care and the quite distinct proposal that the primary care should be split equally between the two parents on separation. When families are together shared care and equal divisions of time are far from the norm, and I’m not sure why they should be the norm when they aren’t together.

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Fathers seek equality in matters of family justice. Equality to me means that each parent should have equal treatment from the courts, equal status as a parent, equal importance in the life of a child. It’s not a mathematical equation and it can’t be expressed in binary. What is legitimate to ask for is that the court, when faced with applications for residence from two parents, does not make its decision based on prejudice or gender stereotype. What is not legitimate is to prioritise a parent’s desire for recognition or affirmation over what is right for the child in any given case.

The complaint is often made that the overwhelming majority of residence orders are made to mothers, ergo discrimination. Well I don’t agree that this equals discrimination, because I don’t think you can tease out from that that brute fact that, in spite of big changes in society over recent decades, the way in which most families still continue to organise themselves is with mum as main carer, and that when most disputes come to court it is from the starting point that the children are used to being cared for by her. Which is not to say there isn’t discrimination in individual cases, but only that the statistics reflect the general trends in society that persist.

In private law disputes the title and status of ‘primary carer’ can become a much sought after prize, the symbol of victory in the battle for equality. The goal of 50% of a child’s time I think is often a symptom of competitiveness between parents, determined on securing a victory in their own conflict. Parents who count up how many nights a year they have and demand an extra 3 nights per annum to balance it out have really lost the wood for the trees – their kids aren’t counting. They are wondering why daddy / mummy is so angry all the time. The 50:50 approach fundamentally misunderstands the way in which our children see us as important figures in their lives. A breadwinner is no less of a parent than a homemaker / carer. My dad worked hard, he didn’t get home to put us to bed often and the patterns and nature of my relationship with him as a child was very different from that I had with my mother. But my parents are equally important to me, regardless of who bandaged my knee or made my sandwiches or who stumped up the pocket money. It is only adults who need to quantify their relationships in hours. Insistence on shared residence can be to impose the judgment of Solomon on children, if not tearing them limb from limb forcing them to be constantly moving from pillar to post in order to share themselves equally between their parents.

Shared parenting works well for some. Equal splits of time also for some. There are any number of combinations or arrangements. But, when there are two homes the practical and geographical problems can often make shared care stressful or impractical. For the bulk of families, whether separated or together the only practical solution is to take different but equal roles. Children understand that in their own way and think no less of us for it. Sometimes I think that the more parents try to demonstrate their equality through carving up the weeks into 50:50 shares, the more they force children to choose between them.

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I know that fathers rights / equality campaigners don’t think that the welfare checklist / best interests test achieves a non-discriminatory result, but I think a presumption of shared care would subjugate the welfare of the child to the straitjacket of dogma. But what if instead we were to legislate to remove any perceived discrimination by identifying what is impermissible for the court to take into account: a codification of the principle of non-discrimination by, say, a provision that the court must not make decisions about the care or residence of a child on grounds of gender.

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These are just my Friday night musings and I’ve had half a glass of wine (baby related abstinence means even this results in mild squiffiness). But I do think there are more creative ways to think about how we promote equality for mums and dads and I think that the debate about this needs to be both more rigorous and more innovative.

That harms report – part 2

PART 2

 

In Part 1 of this blog series, I talked about the broader context and scope of the review.

Here I pick out some specific aspects of the report which held particular resonance or interest for me. Of course, this is selective – the report is huge. I can’t possibly cover and comment on everything. It is also meandering and conversational. Do not expect a neat structure.

 

PERCEPTIONS ABOUT FALSE ALLEGATIONS

 

The report tells us that there is a perception amongst professionals that false allegations of abuse are made as a sort of game playing or to delay or frustrate applications for contact. It notes, correctly, that the proportion of false allegations is small. But we need to be a bit careful here about what is a ‘false allegation’? It’s difficult to tell because the report refers to a literature review, which refers back to two pieces of research from 2011 and 2013, which many will not have access to. When I think back over my years in practice I can think of many cases where I have successfully resisted the making of at least some findings on behalf of an alleged perpetrator, or where I have been unsuccessful in securing them on behalf of an alleged victim. True, courts do not often make positive findings that allegations have been fabricated, more often they are left in that hinterland of incompatible experiences and memories. But as a matter of law a non-finding means that the allegation was false – even though it may not have been dishonestly made – if I consider all these non-findings it is difficult to accept that the number of ‘false’ allegations (in its broadest sense) is small. BUT, as the literature review that accompanies the report makes clear, the proportion of allegations that are even tested by a fact finding hearing has historically been pretty low (meaning its hard for anyone to really assess the rate of false allegations), and of course the only cases I really see are those which fall within that minority. So here I can see I don’t hold experience that is necessarily representative.

 

The more important point perhaps, is that relating to the professional perceptions about false allegations. From my own experience I can vouch that these are made – both by mothers and fathers. I would suggest that entirely and intentionally false allegations are pretty rare, allegations that are false because exaggerated or inaccurately recalled are pretty common, and heightened anxiety about sexual misconduct can in some cases lead to frankly delusional but genuinely made allegations of sexually abusive behaviour. Whether rare or not, it is really important that in each case proper efforts are made to distinguish between accurate allegations and false ones (whatever sort of ‘false’ they may be). Acknowledgment that false allegations are a phenomenon is why we need trials. If we were to accept all allegations at face value we would have no need to test the evidence, and decisions about children would be made simply on the basis of who got in first with their allegations. Because if we abandon the need for scrutiny of allegations, we are not only reversing the presumption of innocence, but also would have to accept all allegations – whether of domestic abuse or of parental alienation.

 

There is a sense that there may be an implicit suggestion that there is something wrong with this systemic refusal to accept allegations as automatically fact. If that is so I disagree. That is the whole point of the system : to act as arbiter between two versions of the past in order to make sound decisions for the future.

 

If the complaint is that professionals are too ready to disbelieve allegations of abuse – that requires more thought. For we lawyers, on one level it is never our job to believe or disbelieve – that is the judge’s job. But, depending on who we are representing, it may be our role to think of all the reasons why a witness should be treated as reliable – or not. The corollary of the earlier point that false allegations are rare must be that judges do quite often accept allegations when made and make corresponding findings. But if judges are overly sceptical, that is likely to be manifested through case management – by diverting a case away from a fact finding at all. Which is of course one of the complaints often made, and backed up by such statistics as are available about the rate of fact finding hearings. And of course, if Cafcass officers also have a tendency in the same direction, their guidance to the court will be influential in nudging the court away form a fact finding hearing and away from proper scrutiny of domestic abuse allegations.

 

The report says :

 

Mothers and professionals and organisations supporting them perceived that the default position of many of the professionals, including children’s social care, Cafcass/Cymru and the courts in child arrangements proceedings, was to treat allegations with a high level of suspicion. Many of the mothers told the panel that it felt to them that they were being accused of lying. Allegations of child sexual abuse raised particular issues relating to suspicion and perceptions of disbelief.

 

The uncomfortable truth is that the necessary exploration and testing of allegations of abusive behaviour is difficult for victims. We can make it less difficult, but we can’t take away all the discomfort and we can’t abandon the exploration altogether. We cannot run a justice system on the basis of #webelieve. And nor can we protect children on that basis. We must respectfully, sensitively and carefully test the evidence and make good welfare decisions from a solid factual foundation. One of the reasons that The Transparency Project wrote our domestic abuse guidance note was to try and make the process of assessing allegations less dissonant for victims*, by managing their expectations. My sense is that the message that a victim is entitled to be believed without question can be unhelpful for victims when they find themselves thrust into a process that does not and cannot operate on this basis. We do victims a disservice in not preparing them for the challenges that a forensic process will unfortunately bring. That doesn’t mean we can’t work harder to make it less difficult, but we shouldn’t whitewash it. That is not fair – it is often left to lawyers (sometimes counsel at court, far too late in the process to be helpful) to explain the reality of the process to frightened clients. No wonder then that they report that their lawyer told them not to pursue the allegations. I am as supportive as I can be to clients who I am explaining the process and possible outcomes to, but it is my job to give them realistic expectations so that they can make their own informed decisions about how best to proceed – and I am frequently frustrated that they have not been given an explanation earlier in the process. My explanations are often a real shock – as is my explanation that there is a possibility that their evidence won’t be accepted, which is often interpreted as ‘you don’t believe me’. These are not conversations (about how lawyers, evidence and trials work) that victims of abuse should be having for the first time at court (or even in a conference a few days before a hearing).

 

*(I could say complainants but I am focusing here on the experience of those complainants who are truly victims)

 

 

WHY DIDN’T SHE LEAVE?

 

The submissions of professionals supporting abused women emphasised that staying with an abuser should not be considered as evidence that abuse did not happen, but in reality some professionals also perceived this to be the case. Again, the evidence submitted to the panel suggests that a better understanding of the dynamics of domestic abuse and the decisions victims make to try to protect their children is needed.

 

It is astonishing – and really worrying – that some professionals don’t understand why people stay in abusive relationships. I thought, mistakenly it appears, that this was domestic abuse 101. Who are the professionals who still don’t understand this? I knew that there were gaps in the understanding of many as to how domestic abuse, and particularly coercive control, works. I knew that there were weaknesses in professional appreciation of things like the escalation in risk after separation. I know that there are gaps in my own knowledge. But the idea that there are professionals in the system who don’t get that its really difficult to leave, and that the fact of their staying doesn’t mean it can’t have been that bad – that’s awful.

 

 

POLICE DISCLOSURE

 

Entirely unsurprisingly, problems with police disclosure were a big issue.

 

The report tells us that,

 

Professionals in different systems have divergent views as to the obstacles to information sharing. In judicial submissions to the panel it was noted that the length of time it takes to obtain disclosure from the police can add delay to a case and courts do not have the resources to regularly review files and chase outstanding disclosure between hearings. It may well be that this is a resource issue for both the criminal and family justice systems, as well as an issue relating to the themes of pro-contact culture and silo working.

 

For me this is basically a resource issue – and although the report talks a lot about silo working my observation is that the Family Court works pretty hard to obtain and incorporate police information and material from criminal proceedings – but is often not assisted by the agencies who are asked to provide it (mainly the relevant police force). I don’t think the problem is the Family Court not seeing the relevance of police disclosure. Any lawyer or judge will tell you that more often than not orders for police disclosure are just ignored, deadlines pass without so much as a request for an extension because the police are just too busy and its not their top priority. Some forces do write to the courts, usually telling the Family Court they can’t possibly comply rather than actually requesting an extension. And increasingly during covid, Family Court judges are in my experience very reluctant to get all shirty with the police and order attendance to explain non-compliance with an order. Even before covid-19 I have been trying to run cases about domestic abuse or suspected non-accidental injury where the police were failing to give full or any disclosure for upwards of six months (don’t forget care proceeding are supposed to be entirely concluded within that sort of time frame).

 

The second problem is that in private law proceedings, nobody has yet devised a system for sorting out police disclosure where the parties are unrepresented (as they very often are). Leaving it to the parties is hopeless – they will argue over splitting the fees, fail to make contact with the disclosure unit to serve the order, won’t have the facilities to securely share disclosure once received…Directing disclosure directly to the court is also problematic because in reality nobody has time to look at the file between hearings. Invariably the case will come back in for the next hearing with a raft of directions (that were based on the assumption that police disclosure would have been received) not complied with, and more often than not with an unshared letter from the police saying ‘oops sorry we need another x months’ or ‘oops we can’t comply because the parties haven’t paid the fee’ on the court file – or if you are lucky with police disclosure in but not sent out to the parties. And of course, as any lawyer will tell you, what comes in purporting to be full disclosure is very often, on a moment’s scrutiny, simply incomplete. Body worn video? Never provided without specific, repeat orders. Notebooks? Likewise. Interview recordings? Often not provided. Logs? Often not provided or incomplete or redacted to hell.

 

I know there are some moves to try and work with the police so that they stop charging unaffordable fees for disclosure, and I hope those are progressed swiftly – but the other issue that needs to be sorted out is enforcement. I sympathise with police forces who are under immense pressure themselves, but this is an important part of their function within a multi-agency child protection system – and if the police think that compliance with family court orders is optional then we have a big problem.

 

 

PARTICULARISING THE ABUSE ALLEGATIONS

 

The authors of the report are rightly critical of form C1A and of the way in which schedules are often limited to a maximum number of ‘incidents’, which makes it very difficult to properly capture coercive and controlling behaviour. They say :

 

The form contains five boxes requesting a short description of what happened, indicating (approximately) when the behaviour started and how long it continued and space on the form is limited. Whether this fairly captures the lived experiences of victims of abuse was raised as an issue in submissions. This overlaps with concerns mentioned about Scott Schedules … reducing a long and complicated history of abuse into neat and discrete descriptions is challenging and can itself result in minimisation of the abuse.

 

I’ve written before about form C1A, and in particular the tendency for it not to make it to CAFCASS before they complete safeguarding interviews (of which more below), and about schedules of allegations. I won’t repeat that here. Here are the links :

 

C1A : http://www.pinktape.co.uk/rants/little-things-sometimes-matter-yes-im-a-pedant/

Limitations on Schedules (amongst other things) :

http://www.pinktape.co.uk/equality/nineteen-child-homicides/

 

SAFEGUARDING CHECKS

 

Another issue that was consistently raised in submissions was the short amount of time that was given to obtaining an account of abuse in the Cafcass/Cymru safeguarding interview. Mothers’ submissions reported only having half an hour to talk to a complete stranger and being expected to give an account of abuse without having any support available in that process. Interviews sometimes took place over the telephone rather than face to face and victims of abuse found that approach was not conducive to giving a full account of their experiences and those of their children.

In one of the focus groups, mothers told of the difficulties they faced in being asked to ‘pull examples out of the air’ and in disclosing their fears and feelings without a familiar and trusted person to support them. They spoke of the approach being insensitive, inadequate and unethical. This perspective was backed up by some of the professionals working in the family justice system. For example, one of the judges at the judicial roundtable said that litigants do not necessarily want to tell Cafcass about the abuse over the phone as it is often serious and distressing experiences that they are required to talk about. Consequently, it comes out at court rather than in the paperwork.

 

I agree with all of this. Cold calling parents and expecting them to reel off a summary of abuse or safeguarding issues to a stranger in a short phone call is not a great way to get a good sense of what the safeguarding issues may be. Moreover, it creates a scenario where lawyers like me inevitably want to explore the inconsistency in accounts when a certain allegation wasn’t raised in the safeguarding interview.

 

I note also with alarm the apparently Covid-related practice in some areas of Cafcass not even bothering with a phone call – and simply sending a parent a written questionnaire asking a series of 9 questions that they are expected to fill in and send back. The numerous problems with this approach are, I hope, too obvious to need enumeration. Although not so obvious that they have prevented the practice emerging. I hope it is only temporary. It does not suggest that Cafcass has fully absorbed the criticism of its pre-Covid practice that this has been permitted at all.

 

 

CONCILIATION

 

The report rightly flags that the expectation of conciliation even where there has been abuse is problematic, particularly given that we know that C1As don’t always reach Cafcass and that safeguarding checks are often outstanding at the FHDRA stage. Personally, I don’t like the blurring of safeguarding interview and conciliation role that I think is risked here.

 

The report says,

 

Given that conciliation and mediation are usually considered – and para 9 of PD12J falls to be implemented – at the first hearing before allegations of domestic abuse have been determined, the court should take a precautionary approach unless there is positive evidence that alleged abuse has been acknowledged and addressed and that parties are able to speak and negotiate freely on their own behalf.

 

I agree. I also note that where conciliation is not appropriate or not attempted at a FHDRA i.e. in most domestic abuse cases, there should be no barrier to legal bloggers or journalists could not attend to observe how the hearing is conducted, including how PD12J is implemented (conciliation hearings are excluded from the list of hearings that journalists and legal bloggers may attend as of right and so far this has prevented the Transparency Project from observing much in the way of FHDRA lists – without justification, in my view).

 

 

FRAMING ABUSE AS ‘HIGH CONFLICT’

 

The report authors say :

 

However, despite the very clear difference between ‘high conflict’ relationships and domestic abuse, victims and professionals told the panel that they had experiences of domestic abuse being reframed into evidence of a ‘high conflict’ or mutually abusive relationship, for which the solution was considered to be mutual reduction of conflict and encouragement of cooperation rather than protection of the child and adult victim from the other parent’s abuse. As some of the victims feared, and were legally advised, raising any concerns about contact with an abusive partner, was perceived as evidence of hostility to co-parenting.

 

For my part, having worked with many parents over many years – I’m not sure that it IS always easy to tell which you are dealing with in practice. I wrote last year about the fact that the behaviour of the parties in a litigation context may make generate conflict and mutually controlling behaviour (which might or might not mask an underlying abusive dynamic).

 

I don’t doubt that abuse is often mis-described as high conflict – and that in doing so real and harmful abuse is minimised. That has been the general approach of governments through the years, who always seem to suggest that conflict is borne of mutual immaturity and animosity after the failure of a relationship, and that parents who can’t agree on arrangements just need their heads banging together. It isn’t always that simple. I’ve seen Cafcass reports which do seem intent on describing the situation as the mutual fault of both parents, and on the emotional harm that the parents inability or refusal to co-parent is causing. Those are frustrating – although they often relate to cases where there is no dispute that there is and should be ongoing contact, albeit that issues continue to arise. There is probably a real question to be explored here about how things can be structured in these sorts of cases to be both workable and physically / emotionally safe once the court has dropped out – I’m not sure there is a consensus on what co-parenting should look like here, or even whether it should be encouraged. I think that is a discussion we need to have. It is one thing for a victim of abuse to be arguing for no contact or highly restricted supervised contact, but in fact many mothers do want their kids to have a relationship with their fathers, but there are limited community structures to make that happen – and extended family are only sometimes able to offer a solution.

 

 

THE VIEWS AND EXPERIENCES OF LAWYERS

 

This sticks out for me.

 

The panel received a number of submissions from individual lawyers about their experiences in child contact cases. Some of these submissions indicated that lawyers have advised their clients not to raise domestic abuse because it would ‘anger’ the courts or be ‘counter-productive’. This evidence suggests that some lawyers do encourage their clients towards settlement in such a way that minimises or dismisses domestic abuse. For example one lawyer who made a submission to the panel said: ‘Victims are often persuaded by their lawyers not to mention abuse, being told the courts don’t like it and it will harm their case. If it is raised, victims are often told by the courts that it’s ‘all in the past’ or, in one case I had been ‘too confrontational’, or that it’s not relevant.

 

WHO has been bothered enough about this issue to submit evidence to the panel telling how they have advised their clients not to raise d.a. because it will ANGER the court?? Who is doing that? Whoever they are they should not be doing this work. If the panel tell us they received this submission I have to accept it was made, but I’m frankly shocked.

 

Equally, if anyone is giving their clients generic information that courts don’t like the mention of domestic abuse or that the mere mention of it will harm their case they should go and find a new job.

 

I agree with the lawyer who is quoted where s/he says that victims are often told allegations are ‘in the past’ or that it’s ‘not relevant’. These are known problems that it is no surprise to see featuring in this report. If advocates are still being told off for pressing these issues (whether by being told they are being ‘too confrontational’ or in some other way), then I hope there will be more appeals.

 

But let me tell you what my practice is, and I think the practice of most other half decent family barristers. In some cases I have advised a client that pursuing domestic abuse findings might be counterproductive – which is not the same as trying to frighten a client by telling them about ‘angry’ (male) judges. Because it’s my job to help them understand the process they will have to go through, and what may unfold if they make this decision or that. My clients are not children. They have to be empowered to make the choices that are right for them. They are entitled to know that they will be cross examined, that my professional assessment is that the evidence they are presenting is really weak, and if I think that they are highly likely to end up with no findings and LESS able to protect their children than if their credibility is preserved (I’m thinking here of the sort of case where a mother makes repeated, highly improbable allegations without cogent supporting evidence, perhaps where she has already been unable to prove earlier allegations – and where if the latest round of allegations are also unproved she is at risk of losing primary care). These are difficult conversations to have, and the last thing I want to do is frighten a client out of their wits. But it is my job to advise them. In my experience, most such clients will pursue those allegations anyway, but at least they do so with their eyes open. Such conversations are neither necessary nor appropriate in less clear cut cases.

 

What I don’t do is ‘persuade’ my client not to raise an issue that they feel in conscience they need to make to protect their children. I advise them of the risks, I try to reassure them about how we can make the process as manageable as possible, and then I support them in their decision whatever it is. It is fair to say that some clients, particularly those whose confidence in their own decision making has been undermined by years of abuse find this difficult. They may feel pressurised by what they are being told. But we cannot ethically keep them in the dark. It is also fair to say that the way in which a judge conducts him/herself can make a big difference to whether a victim feels able to pursue allegations of abuse. I can think of one case where a very stern s98 warning and clear statement of intention to make a perjury referral if the allegations were found to be fabricated from the judge case managing a proposed fact finding hearing was swiftly followed by the client deciding not to pursue very serious allegations. Great care is needed to ensure that potential victims are able to pursue relevant allegations and to engage with the process.

 

This passage is also striking. Note the choice of language.

 

The panel was told that perpetrators were sometimes allowed to raise counter allegations of parental alienation and that these were taken seriously, even when there was little or no supporting evidence. There was a perception that there is a lower threshold for raising allegations of parental alienation than there is for raising domestic abuse or child sexual abuse. As a matter of law, the burden of proof is on the person raising allegations and the standard of proof is the same regardless of the nature of the allegations or who makes them, but submissions indicated that victims did not perceive this to be the case in practice.

 

Is the implication that perpetrators (alleged perpetrators?) should not be allowed to raise allegations? Any allegation should be taken seriously, whether of abuse or alienation. It is in the nature of both sorts of allegation that there is little supporting evidence. I have been involved in cases where domestic abuse is not taken seriously and in cases where allegations of alienation has not been taken seriously. My firm view is that where these issues are raised the court often cannot fairly decide one without considering the alternative scenario – is the child refusing contact because of their experience of abuse or because of alienation in the context of false allegations of abuse? It can’t be both.

 

The problem is when the court attempts to deal with allegations of alienation having decided not to hold a fact finding hearing, or where allegations of abuse are floating around but not being actively pursued or grappled with. That places the court and the victim of abuse in a catch 22 situation : any refusal of contact cannot be justified by domestic abuse because it hasn’t been litigated / proved and thus as a matter of law did not happen. The court dealing with allegations of alienation does need to properly scrutinise why it is the allegedly alienating parent is saying there is a problem. If they are saying there is a background of abuse then the court is probably going to have to look at those allegations of abuse even if it initially looked like a fact finding hearing could be avoided.

 

Here again, look at the language :

 

Some of the fathers’ submissions stated that allegations of domestic abuse were made up or exaggerated by mothers who were trying to alienate their children from them and frustrate contact. They felt that the courts were not sufficiently robust in investigating allegations of domestic abuse which they said were untrue or exaggerated.

 

The report uses the terms victim and perpetrator regularly throughout the report, even when discussing the process prior to findings being made. This language assumes that allegations when made are factually accurate – that an alleged perpetrator is in fact a perpetrator, and an alleged victim is a victim. In the above passage father’s submissions are described as subjective accounts ‘father’s stated’ ‘said’ and ‘felt’. In the context of what I’ve said earlier about the essential need for a forensic process that is fair to all, this leaves me uncomfortable.

 

 

TO REVIEW OR NOT TO REVIEW?

 

I noticed also that the pendulum seems to be swinging back again in respect of this old chestnut – the review hearing.

 

Now the review panel complain that ‘reviews of child arrangements appear uncommon, even in domestic abuse cases. This is despite all the research that indicates that spending time with an abusive parent can result in the continuing abuse of children and/or their non-abusive parent.’

 

This is not a surprise. It is judicial policy : When CAP was brought in we were told to stop fixing reviews, to discourage parental dependence on court process, to make stepped final orders early doors and shoo them out into the big wide world. We know that has not always worked as well as we’d hoped and has resulted in a revolving door in some cases. There is probably a happy medium here – reviews will be helpful and appropriate in some cases but not all.

 

 

THE REPRESENTATION OF CHILDREN AND THEIR VOICES

 

I was surprised to read that guardians are appointed in only 7% of cases in 2018-19. Perhaps this is an illustration of the fact that someone at my level of call (18 years) has a caseload at the more complex end – I would say about half of my private law cases involve a guardian. A reminder that I need to be wary to equate what I see with what is more broadly typical.

 

Apparently,

 

Multiple submissions referred to the resource constraints that limited the involvement of Cafcass or Cafcass Cymru, in terms of how many children were seen, for how long and the lack of reviews after orders were made. They noted that Cafcass and Cafcass Cymru are usually only involved at the initial safeguarding stage where they do not meet or speak with children. Lawyers also raised concerns that so few children are separately represented. A LIP support service noted that courts would not appoint guardians unless they were specifically asked to do so, and LIPs had no idea they could make such a request.

 

I have to say that, following the guidance, I often ask for a guardian early on in proceedings and courts are often reluctant to grant my request. It is quite challenging to fit a case within the framework of PD16A until it is frankly too late to be useful. I think that the ability of courts to deal properly and robustly with cases would be significantly enhanced if guardians were more routinely appointed, but resource constraints make that seem highly unlikely. As the report says Cafcass officers are under significant pressure already and often do not see children as often or for as long as would be optimal. They either do not have time or are told they must not make more than a bare minimum of visits (proportionate working is still alive and kicking). In these circumstances is it any wonder that children and parents are reporting that Cafcass are not really getting a handle on their wishes and experiences or that they are not being heard? One interview does not equate to a relationship of trust and an open dialogue.

 

The report writers were unable to source any data on how often children are giving evidence or meeting judges. I’d say in private law cases (even that subsection that I see) both are relatively infrequent, though in my experience if children ask to meet the judge this is usually made to happen.

 

The report tells us that:

 

Cafcass has developed a number of digital apps for working with children and families, including Voice of the Child. This Much! and Backdrop are two other apps available to Cafcass officers for direct work with children. These have been rated as ‘outstanding’ by Ofsted, but none of the apps were mentioned in any of the submissions to the panel.

 

I’d say there’s a reason they weren’t mentioned : because they aren’t being used. I’ve never heard them referred to in my cases (although I have seen reports with childrens’ worksheets in them – I’m not clear to what extent these apps are simply a digital version of such worksheets).

 

The passages about childrens’ interviews are concerning but in some respects difficult to make sense of. For example :

 

Parents, too, gave accounts of children being too frightened to speak, especially in the presence of or in close proximity to the abusive parent, and reported that their children had found the interview process traumatic. The PSU submitted that Cafcass interviews exposed children to the risk of further abuse and invited them to relive previous trauma without specialist support. In addition, some mothers criticised what they perceived to be Cafcass’s generic approach of exploring children’s feelings indirectly through play, even when children were old enough to be asked and to answer direct questions.

This account was far from an isolated instance in the submissions, including submissions from child victims of domestic abuse, and is consistent with research findings that Cafcass officers can make considerable efforts to persuade children to spend time with a parent, or to increase the amount of time they are already spending with them.

 

The result, however, is that children’s experience of abuse can be ignored, dismissed or minimised.

 

I don’t quite understand the basis on which the PSU are able to comment on the interview process used by CAFCASS, and they are presumably reporting accounts given to them by resident parents at court. It is almost always the case that children are interviewed away from their parents, often at school or a Cafcass office rather than at home – precisely in order to avoid the sorts of difficulties outlined. There seems to be both criticism of Cafcass for asking direct questions (which might be traumatic) and for not doing so. What does come through clearly though is that a number of children were telling the panel that their experience was of Cafcass putting pressure on them to agree to contact. Whilst it is right that Cafcass officers explore why a child is refusing or expressing reluctance to have contact (because sometimes it is a result of coaching or other influence of the resident parent), it is self evident (or ought to be) that one understandable reason for reluctance is that the child has experienced domestic abuse – in which case their expressed wishes need to be afforded respect.

 

Whilst the FJYPB contains some impressive young people, some of whom I’ve met, I’m not convinced that it can ever be truly representative of the children whose cases are decided by the Family Court. However, this is important :

 

…research and the evidence of the Cafcass FJYPB focus group does suggest that children want to be consulted, and that their voices should not be dismissed as simply reflecting the views of their resident parent. A common response in the call for evidence was to highlight the need for skilled assessments that start with an open mind, rather than a fixed hypothesis of what is going on which may lead to entirely inappropriate conclusions. That skilled assessment should assess all the circumstances of an individual case to help the court to determine what is in the best welfare interests of the child, but this obviously has resource implications.

 

Somehow we need to find more time and space for Cafcass officers to build relationships with children and to form more nuanced and detailed understandings of their views and their experiences.

 

SILO WORKING

 

We are told that organisations including Barnardos, Safelives, Women’s Aid Federation of England and Welsh Women’s Aid noted that the court process, particularly in the preparation of Section 7 reports, failed to draw upon the expertise of their specialist children’s services staff who knew the family.

 

I think that this criticism may well be justified. I have often seen cases where the refuge or other agencies could probably provide helpful information that is not before the court – BUT there does need to be proper forensic scrutiny of such material, because of the way such services work – there are cases where the therapeutic work carried out by such agencies on the acceptance of allegations as truth can contaminate and develop the evidence in ways that actually make it harder to secure a finding (for example refuge workers asking repeated leading questions for therapeutic or evidential purposes). These forensic issues are a bit of a minefield for both the workers in question and for parents and judges dealing with the resulting records.

 

This passage highlights the forensic issues well I think :

 

Others noted that professionals were too ready to see signs of alienation, and so silencing children, rather than assessing further what the child may have witnessed or experienced. This was particularly evident where allegations of sexual abuse had been raised.

 

In cases where children have disclosed sexual abuse or displayed behaviour that might indicate sexual abuse by their father, there is very little focus on capturing children’s voices in family court proceedings. The primary focus seems to be on the parents, with often intense scrutiny of mother’s motivation for making allegations of sexual abuse. In cases we are aware of: Children have made clear, sometimes graphic, disclosures of sexual abuse to professionals and/or to parents and carers, but despite this, the Judge has ruled that the sexual abuse did not happen. CARA

 

This seems to be pretty clear evidence of the phenomenon whereby agencies accept and adopt allegations made (here referred to tellingly as ‘disclosures’), and do not accept the findings of a court following a trial. Many agencies work on this model – they understandably accept the self report of their clients and provide services accordingly. But problems arise when they are unwilling to accept the outcome of the forensic process, particularly where their influence on the child or adult continues to promote a refusal to accept the findings the court has made. Of course courts do get things wrong – but a parent who doesn’t accept findings either has to appeal them or accept that the court will go forward on a different basis. It’s really difficult, but that is the system. Although I accept the broad systemic issues raised by those who contributed to the report, I wonder how many of the accounts that were given were from this sort of scenario – still asserting that terrible abuse happened and that the court is ignoring it – even though that court has meticulously considered all the evidence and decided it didn’t occur?

 

The quote shows an agency apparently not accepting findings post trial – but consider the impact such agencies can have on the forensic value of a child’s account if they treat allegations as disclosures from the off – in cases I have worked on such mindsets have actively led to a court being unable to make findings – how does that protect a child?

 

 

PRO CONTACT? ALIENATION?

 

Following on from the above:

 

The most commonly cited reason for why children’s voices go unheard in domestic abuse cases is the ‘pro-contact culture’. Two specific factors were raised repeatedly in submissions: the idea that the court already knew what children needed and allegations of parental alienation. Both meant that children’s wishes and feelings were not elicited or were heard only if they expressed a wish for contact.

 

Notice the use of the term pro-contact here – the more contentious phrase ‘contact at all costs’ is often used elsewhere but does not appear in this report (except in one citation). For my part I agree there is a pro-contact culture, and I accept that does translate on occasion to contact orders being made that are inappropriate – but I’ve always struggled with the term ‘contact at all costs’, which I don’t think properly captures what is going on. Rights of Women told the panel that

 

We are informed [by service users] of Cafcass officers making recommendations for unsupervised contact with a perpetrator of abuse that they are unwilling to sit in a room with because they present a risk to the Cafcass officer.

 

My personal experience of cases where LA social workers or Cafcass officers will only interview a parent double handed are mainly in care cases where contact is supervised. I can’t think of any where that level of professional concern has been apparent and there has been any plan for unsupervised contact – but I have no reason to doubt what the clients of RoW are reporting. It’s difficult to get any sense of how often this sort of thing is happening or what the context in those cases really is. I suppose that in the individual case a careful risk assessment might demonstrate the risk to professionals is high whereas the risk to the other parent or the child is low, but it does seem inconsistent.

 

Interestingly, fathers’ groups (apart from Mankind) made similar generalisations about what children want and need, and preferred that children were not directly consulted. The reason behind this stance is concern about alienation. See here :

 

‘Parental alienation’ is based on an idea that children’s wishes and feelings have been influenced by the ‘alienating’ parent, and therefore should be discounted. Multiple submissions argued that the increasing use of the term ‘parental alienation’ could silence children. If children have been alienated, then their wishes and feelings are seen as contaminated. Submissions also observed that an allegation of ‘parental alienation’ meant that the parent who is the subject of the allegation will be treated as an ‘alienator’, rather than as a protective parent with well-founded fears around abduction or violence. This potentially leaves children who have experienced domestic abuse in a very vulnerable position, unless there is some ‘objective’ evidence of the abuse or an independent agency with influence.

 

A number of submissions raised concerns about professionals jumping to a conclusion that a child refusing to spend time with an abusive parent had been alienated, rather than considering the refusal to be a result of an abusive parent’s behaviour.

 

In very simplified terms there are two counter-factuals here. Either a child has been subjected to domestic abuse (directly or by exposure) and their wishes may be affected by those experiences. OR a child has not been subjected to the alleged domestic abuse and their expressed wishes and feelings may not represent either their true wishes, or may be the product of a deliberate or inadvertent negative influence from a parent who has made false allegations against the other. In the former those wishes and feelings ought probably to be given proper weight. In the latter, perhaps not so much. But before you can work out which is which you have to determine the facts. There should be no jumping to conclusions before a fact finding hearing. And if necessary a fact finding hearing will need to determine both allegations of abuse and allegations of alienation. It can rarely be both, though the mere presence of ANY abusive behaviour does not justify the child being exposed to a wholly hostile approach towards the other parent, and nor can it automatically mean no contact.

 

The problem here for me is that in many cases an early decision is taken (or has historically been taken perhaps) that no fact-finding hearing is needed – the allegations are minor, historic, the principle of contact is agreed, everyone wants to avoid delay expense and stress – whatever. And THEN allegations of alienation are made when things grind to a halt. In those circumstances the court may have to reconsider the question of whether findings on the abuse are required, in order to fairly work out how to respond to allegations of alienation. I think that many resident parents (often mothers) find themselves in a catch 22 situation when, having not pursued or been told they can’t pursue findings, they are told they are alienators – and the fatuous assertion is made that the allegations aren’t true because the court works on a binary system. If allegations which have been put to be later become relevant, the court may have to think again in order to avoid unfairness.

 

But the issues around ‘pro-contact’ culture are not just about the way the court deals with allegations of alienation – the family court is often criticised for being TOO pro-contact generally, not just as a result of minimising domestic abuse and not just as a result of too readily accepting allegations of alienation and push push pushing the reluctant child or resident parent to allow contact that may be risky or harmful. I’m not sure that in all its 200+ pages the report really interrogates whether or not there is a problem with being pro-contact per se.

 

There is some consideration of whether or not the presumption of parental contact has somehow led to an even greater emphasis on father’s rights (I don’t think it has, the report writers think otherwise) :

 

Overall, the evidence received by the panel suggests that the presumption is implemented inconsistently and is rarely disapplied. To the extent that the courts’ pro-contact culture operates as a barrier to addressing domestic abuse, it serves to reinforce that culture.

 

My question here is – what are the lawyers doing in these cases? I’ve never heard it referred to in legal submissions – and if it were I’d immediately flag to the court that it is easily rebutted by the mere making of an allegation and that its only a presumption of some contact – not even necessarily direct. It’s that easy to neutralise such allegations. Perhaps its deployed by litigants in person in cases where there are no lawyers, but even then a brief glance at the presumption as drafted by the judge should have a similar effect.

 

However, whilst the presumption is touched on as above, the tenor of much public debate in this area, including that which led to this review being launched, implies that the promotion of contact is objectionable in ALL cases involving domestic abuse – even perhaps that it is objectionable in all cases involving allegations of domestic abuse. That debate is not necessarily within the remit of the review group but I think it’s a debate we need to have. I don’t buy into the simplistic ideas such as : abuse that is ‘historic’ is irrelevant, or that non physical abuse is less serious – that tend to lead us towards minimising abuse, but I also know that there is such a vast spectrum of behaviour and experience in the cases that come before the family court, and that each needs its own tailored solution. For example many children who have been exposed to domestically abusive behaviour by one or both parents will have continued or gone on to have regular and valuable contact with the abusive parent for substantial periods – they will have established relationships – and so when the family court comes to evaluate contact it does not do so in a vacuum. Many children who have experienced abuse will reject contact, but others will actively want and need to continue a relationship with their flawed parent – that might not ultimately be safe or possible, but it does need to be considered? For some children a safely managed relationship with their other parent can build understanding of their parent’s failings, which can be important for identity and can help them to self-protect as adolescents and adults where children without any first hand knowledge of a parent can place them selves at risk when seeking out an idealised parent.

 

So, individualised solutions – proper consideration of the experience of the parent and child who have experienced abuse, the ongoing risks, and the potential advantages – with better awareness of when we may be minimising or muting, and without either a dogma that there should be no contact or that there must be contact? I don’t think that should be controversial but I think perhaps it is.

 

 

OPERATION OF PD12J

 

Concerns about resource constraints were particularly prominent in this regard. Judicial and practitioner respondents were unanimous in agreeing that resource constraints are a major impediment to the effective implementation of PD12J, including the inability to provide judicial continuity, and the large number of LIPs now appearing in private law children cases. Individual respondents also commented on courts having too little time for each case, just processing cases without engaging with the parties, insufficient time being allocated for hearings, judges and magistrates not having read documents filed before hearings, and difficulties of communication between the court and litigants. The evidence also showed how the court’s pro-contact culture, the adversarial process of fact-finding and the silo working of the family courts operate to limit the effectiveness of PD12J. Unless the problem of insufficient resources and the other underlying barriers are addressed, they will continue to have an adverse effect on the implementation of the Practice Direction.

 

I have nothing to say here but to agree! The family court can be pro-contact by the way, without making contact orders at a time when potentially serious allegations of domestic abuse are outstanding, and PD12J is right about that – the way to minimise the risk of children being harmed as a result of the cessation of contact where allegations later turn out to be false is to get fact finding hearings ordered early and heard promptly. Little hope of that in the current climate I suppose, but as a matter of principle that must be the right approach. You don’t know contact is safe until you know if the allegations are true.

 

The key theme of submissions was that there are serious shortcomings in the implementation of PD12J. Respondents perceive there to be a substantial gap between the ‘law in the books’ of the Practice Direction and the ‘law in action’ of how it operates on the ground.

 

I agree this gap is a big problem in some cases – as evidenced in the Sussex study last year even if it’s less visible in my own caseload. My observation of some Magistrates court hearings recently was encouraging, but it’s such a small number that it obviously isn’t necessarily representative.

 

Individual and some professional respondents identified a lack of awareness or familiarity with PD12J on the part of some Magistrates, Cafcass officers and local authority social workers in particular.

 

It is alarming to think that there are STILL Magistrates, Cafcass officers and LA Social workers who don’t know about PD12J. Where have they been burying their heads?

 

However we then get this :

 

Concerns about the non-application of PD12J appeared to relate less to lack of judicial or professional awareness and more to the respondent’s perception that the court had ignored, refused to listen to or dismissed allegations of domestic abuse they had raised, and refused to order a fact-finding hearing.

 

Mothers in one of the focus groups said they had been told by their lawyers that their abusers would be granted contact and there was nothing they could do about it.

 

I think what is important here is that this is about perceptions of parents about what their lawyers are saying or doing on their behalves. Lawyers do have a responsibility to advise their clients about the likely steps the court will take. It IS likely in many cases that notwithstanding domestic abuse some contact will be granted. It would be unfair and irresponsible to suggest to a client that they can expect to resist all contact if that is very unlikely. That does not mean that a lawyer should not then pursue all proper arguments as to why contact shouldn’t be ordered – and no doubt this report will be helpful in articulating and emphasising some of those arguments where the judge or magistrates don’t seem to get it – but a lawyer’s job in private is to advise on likelihood of success. Personally, reflecting over the years on how our advice is interpreted, I try really hard to explain that distinction in role – between what I advise you the risks are in private and the hard work and creativity I put in to achieve the outcome a client seeks to secure once that advice has been given and a decision has been made by the client as to their position. But what I can’t do is not give that advice.

 

Right. That’s Part 2. When you have had a lie down in a dark room, recovered and replenished your tea and biscuits here is Part 3.

Down at Heel

WhatsApp from my dad yesterday :

Hi Luce, I expect you’ve seen Baroness Hale’s views on compulsory high heels for women. She wants equality, high heels for men as well! 

It was followed by a cheeky nerdy face emoji so I think it was intended as a joke. Difficult to tell with my dad.

I was perplexed. I had not seen the interview. I’m still perplexed. Nobody has ever told me I *must* wear high heels. My now far more infrequent wearing of high heels is entirely self imposed (self imposed shackles borne of my conditioning since birth by the patriarchal system, natch). I am short. I prefer to be a bit taller. I think high heels look smart. That I’ve reached the age where the trade off is no longer worth the discomfort and irritation of constant reheeling (I wear boots to work and switch shoes only whilst at court), does not change the fact that I chose to wear high heels for much of my professional life, although I could never manage or carry off the full on six inch stilettos. Maybe I saw everyone else doing so and thought I ought to in order to look the part; maybe putting on the heels gave me that bit of confidence to stand up and be tall in court. And maybe my perspective has changed now I’m older and I realise my strength is not in my stilettos. But…

The idea that someone would TELL ME to wear heels is flipping outrageous. I wondered what on earth Baroness Hale was on about. But I am assured via twitter that there are solicitors’ firms where this is a THING.

https://twitter.com/avoidgravity/status/1216623793483001856?s=11

I have no reason to doubt that is so, but it is really shocking. Moreover apparently it isn’t limited to heels, but also extends to overt instructions regarding nail colour, and the colour of clothing. I had no idea this went on. I like to think I’d spit the dummy if anyone attempted to impose this on me, but who am I to say how difficult it would be for someone just trying to make their way as a junior employee in a competitive field?

I am confident that I would not last a moment in such an organisation, as much because of my basic level personal grooming skills as my feminist principles. By all means instruct me to attend court without a coating of dog hair, with vaguely clean nails, with the mud wet wiped efficiently from my boots and with my hair at least smoothed down to some sort of momentary calm, if not brushed and styled into submission. But ask me to waste my valuable time giving myself a flipping manicure when I should be thinking through my cross examination and there may well be a shoe throwing incident. And believe me, you don’t want to be on the wrong end of my shoes. They are flat but smelly.

I don’t know what support we boot wearing established women can offer to those in a more tricky / vulnerable position but I do hope this is called out. And that any firm (or chambers) who recognises that they do this is squirming. Take a look at yourselves! And stop it before you get caught out.