Posted on | September 12, 2011 | 12 Comments
This post is a guest blog post written by Sarah Phillimore. Sarah is a family barrister with over 15 years of experience. She tweets as @SVPhillimore and this is her first foray into blogging. This post arose from a tweet from @change4victims calling for support for an e-petition entitled “review of access laws for domestic abusers”, subsequently retweeted by @womensaid.
The petition reads:
70% of cases in the family courts cite domestic abuse as a major concern yet only 1% are refused access. a review is required. Supervised access is the minimum that must be considered when an abuser scores low to moderate on the DASSH risk assessment. Supervision must be on a 1:1 basis. No access should be given where an abuser scores high risk on the DASSH, where a MARAC hearing is held or planned, Where target hardening is carried out on a victims property or where the abused has had to move to refuge, out of their hometown away from their support network. government should consult Women’s Aid, The Police and the Domestic Abuse helpline in reviewing this. Family law must consider children’s safety and not simply chase social ideals. A happy child with a lone parent will always make a more positive impact than an unhappy child brought up with abuse. Also where drug use is cited as a problem rehabilitation must take place before access can be considered.
It has to date achieved 35 signatures.
Over to Sarah…
What Kind of Debate Should We Be Having About Domestic Violence?
I do not believe that it is ok for people to abuse each other, with fists or with words. We all need to take responsibility for our own behaviour and not complain that we were ‘provoked’ by another person or situation into acting badly. I agree that men who expose their children or children’s mothers to violence should expect State intervention in their family life, which could mean they are prevented from having a relationship with their children as they grow.
Why do I even need to say this? Because sadly my experience of attempting to discuss violence in relationships has shown me that it is difficult to engage in useful debate. At times it seems that only one response is permitted – men are the perpetrators and women are the victims. Any deviation from that norm is met with accusations that I must be a supporter of violence against women and anything I say should be dismissed.
I have been a specialist family lawyer since 1999, acting for both mothers and fathers. Many parents who are separating make allegations about each other’s behaviour. Violence is often an issue. I do not use the term ‘domestic violence’ because that is a ludicrous term. ‘Domestic’ makes it all sound so lovely and cosy. I find the term ‘relationship violence’ more helpful as I think the context of the relationship in which such violence occurs is relevant – to how we blame, how we punish and how we move on.
I was prompted to write by the e petition ‘review of access laws for domestic abusers’. It says: ‘70% of cases in the family courts cite domestic abuse as a major concern yet only 1% are refused access. A review is required.’
I do not know where this statistic comes from or what is meant by ‘cases in the family courts’. I assume it must refer to applications for contact in private law proceedings as the word ‘access’ is used. I assume that means ‘direct contact’ and thus does not cover birthday cards etc.
I don’t know what is meant by ‘domestic abuse’ but I assume it must follow the definition in The Domestic Violence, Crime and Victims Act 2004 as:
‘ any act of violence, even if only verbal, perpetrated by a household member upon another household member and includes any omission which causes physical or moral harm to the other.’
That ‘violence’ goes beyond phsyical harm or threats of physical harm was confirmed by the the Supreme Court in Yemshaw v London Borough of Hounslow  UKSC 3 where in the context of section 177(1) of the Housing Act 1996, a husband shouting at his wife would be sufficient conduct to fall within that Act’s definition of ‘violence.
I don’t know what is meant by a ‘major concern’ as the petition seems to advocate two different kinds of approach to two different kinds of violence. Men who score ‘low to moderate’ on the DASSH (sic?) risk assessment should only be allowed to have direct contact with their children if subject to one on one supervision. Those who score highly on the risk assessment or where a MARAC hearing is held or planned get no direct contact at all.
‘the new Domestic Abuse, Stalking and Honour Based Violence (DASH 2009) Risk Identification, Assessment and Management Model means that for the first time all police services and a large number of partner agencies across the UK will be using a common checklist for identifying and assessing risk, which will save lives. ACPO Council accredited the DASH (2009) Model to be implemented across all police services in the UK from March 2009.’
A MARAC hearing is a multi agency risk assessment for the highest risk cases of abuse in order to create a safety plan for the victim.
I would think it highly unlikely that any individual who was subject to either a DASH assessment or a MARAC hearing would be out and about in the community freely making applications for contact orders. I would be very interested to know what the statistics are about this. All I can say is that in 13 years of practice I have only had a handful of cases where a father was making an application from prison or had come out of prison after serving more than six months for an offence of violence against a partner or others. Most fathers in those positions appear to drop out of their children’s lives. Those who did make applications from prison or after sentence were subject to pretty intensive risk assessments before even indirect contact commenced.
Therefore, the vast majority of cases I have dealt with are presumably ones where the father would score ‘low to moderate’ on the DASH assessment; violence is in issue, involving drunken arguments, mobile phones being thrown or smashed, threats made, doors kicked, police call outs which involve ‘advice given’ rather than arrest, and children present in the home throughout.
There was not a risk of serious physical injury to the mother or the children, but this of course does not make the behaviour trivial. Those at the receiving end of it cannot be expected to rationally assess their risk at the time; they are likely to be very frightened and may reasonably fear that the violence will escalate.
The court is then faced with parents who have split up in such circumstances, sometimes after complicated, messy and toxic relationships, often spanning many years and involving more than one child. The parents cannot agree post separation on how they manage contact, particularly if the non resident parent is continuing with a pattern of aggressive and unpleasant behaviour.
In order to determine the nature and extent of the risk posed by the non resident parent, the court is likely to need a fact finding. Once facts have been established on the balance of probabilities, the risk posed by the perpetrator can be assessed and consideration given to how to manage contact.
Again, the statistic that only 1% of violent parents are then refused ‘access’ simply reflects my experience of such cases and is proportionate to the facts of those cases. The most serious issues of violence are not going to be before a family court in the context of an application for contact. Rather, those cases go through the criminal courts or public law care proceedings where issues of risk of significant harm are debated. I would expect the percentage of men refused direct contact with their children in those circumstances to be considerably higher than 1%.
The fact that low level abusers are still allowed to see their children is in recognition of the clear principles of both domestic and international law of the child’s and parent’s right to have a relationship with one another.
Children generally love their parents, no matter how unworthy they might appear to an outsider. They are very likely to suffer harm if they are exposed to abuse within their parents’ relationship but the answer to this harm is unlikely to be to cut out of their lives one half of their genetic identity, particularly if the children are old enough and had spent enough time with their parents to form close attachments to both.
The authors of the petition assert that low scorers on the DASH risk assessment must nevertheless only be permitted 1:1 supervised contact.
Several things worry me about this. The first is practical. I doubt we are going to trip over any enormous pots of money any time soon to fund supervised 1:1 contact for all those assessed as a low risk. So the reality would be, if supervised contact is the automatic minimum, this will equate to no direct contact at all.
But I can’t let the financial tail wag the dog of principle. If the money were available, is it the right response to demand that people assessed as ‘low’ risk should only see their children in an environment of 1:1 supervision? I don’t agree. Children who grow up in abusive families are already damaged by constant exposure to a poor template of good parenting. I don’t see how that damage is undone by then demanding they can only see their non resident parent in the stressful and artificial environment of 1:1 supervision.
I agree that when parents separate, if the non resident parent has been abusive, a regime of free and easy contact is inappropriate; it creates further tension and makes arguments and unpleasant behaviour more likely. But when complaints of abuse do not attract charges under the criminal law or the abuser is assessed as ‘low risk’, a draconian demand for only 1:1 supervised contact is not proportionate to the harm caused or feared. Rather, there is a need to consider less invasive and expensive options, such as referral to counselling, anger management or parenting courses, supported contact at a centre, help from family or friends to arrange picking up and bringing back children and contact only as visits during the day, rather than longer periods and overnight.
However, there is another part to my objections to the petition. We are not only concerned about the need for a proportionate response to a low risk offender. What about the dynamic within the relationship itself and the role both parents play in creating a family life which can be unpleasant and unhappy for all concerned? Attempts to acknowledge and discuss this dynamic are often rejected in very aggressive terms, hence my disclaimer above.
To permit a women in a violent relationship only the role of ‘victim’ stifles any consideration or debate about how she got there and why she stays or what her own behaviour has been in the relationship.
When Erin Pizzey wrote Prone to Violence she reported that she had been the subject of death threats because she concluded that most domestic violence is reciprocal, and that women also have a capacity to be violent.
I agree with her conclusions, albeit to a more limited extent. I do not agree that most women have the physical or emotional capacity to be as violent as some men. However, with regard to the reciprocity of violence in relationship, at the lower end of the scale where neither the criminal courts or the Local Authority is involved, it is my experience that in many cases both parents are making allegations against each other about behaviour which falls clearly within a definition of either physical or emotional abuse. If we really do want to keep children safe we can’t ignore this reality or attempt to aggressively censor anyone who wants to discuss it.
Of course, most men are likely to be stronger than most women. If they react aggressively they are likely to do more immediate physical damage than a woman. Reported incidents of women being physically violent towards men in relationships are rare. This either reflects that it doesn’t happen often, or that it is under reported due to the shame and embarrassment felt by male victims – they can’t be a proper man if they let a woman hit them. These factors probably explain why the division between ‘female victim’ and ‘male perpetrator’ has become in certain circles such a self evident truth.
I am concerned that this clear cut division between men as the violent perpetrators and women as victims, promotes a simplistic clarity at the expense of proper analysis of what is really going on in these relationships. Relationship violence occurs within the dynamic of that relationship. I do not seek to blame women or demonise men when I say that what both people bring to the relationship can be relevant to understanding it.
Demonising violent men isn’t going to help our understanding about what we can do or should do as a society to intervene in obviously unhealthy relationships. If just from a cold hearted capitalist view we have to do something as even low levels of violence in relationships damages children. Damaged children may grow up to be damaged and unproductive adults who inflict harm on their own children in turn.
The increased understanding of the interplay between genes and environment has potential implications for cases of relationship violence and deciding issues of fault and blame. In the USA, Bradley Waldroup escaped the death penalty in 2009 for trying to murder his wife and successfully murdering her friend. It was argued during the trial that Waldroup was not responsible for first degree murder due to his possession of the (inaptly named) ‘warrior gene’ combined with a deprived and abusive childhood which triggered his propensity for extreme adult violence. The jury agreed and found him guilty of voluntary manslaughter. It appears that this was the first case of its kind where the impact of genes and environment was argued during the trial itself, rather than being put forward as mitigation in sentencing.
There is a legitimate argument that behaviour shown by Waldroup is so serious that we should put our need to be protected from him much higher than any consideration of how to help him. But the petition is not exclusively directed against these high risk men, It demands also that low risk offenders face significant disruption to their relationship with their children.
The real problem for society at large, is that toxic adult relationships often produce children. These relationships are likely to break down in great acrimony. The parents can’t negotiate how to parent now they are separated. The only agency they can reliably turn to is the family court which can only ever intervene by setting out a legal framework for the future, leaving the issues of past and present emotional dysfunction entirely untouched.
Children will generally love their parents and need to know them however unworthy the parents are by any objective standards. For a court to endorse refusal of all contact between a parent or child is deliberately a very rare step because we have been told so clearly and for so long by psychiatrists and psychologists that this risks causing significant emotional damage to children.
‘Family law must consider children’s safety and not simply chase social ideals’ complains the petition. The problem with this is that promoting a child’s relationship with both parents is not some woolly ‘social’ ideal; it is a legal obligation upon our courts, imposed by domestic and international law. The move away from this principle will require as a first step that we refuse to be subject to Article 8 of the European Convention of Human Rights and Fundamental Freedoms.
Further, if the aims of the petition are accepted by the Government, it is not just from international law that we will have to resile. Every decision any Judge makes about a child’s contact with his parents is made according to the central principle of the Children Act 1989 – the child’s welfare shall be the court’s paramount consideration. The problem with the petition is the attempt to impose blanket rules which over ride any fact specific analysis of what is best for this particular child in these particular circumstances. If this petition succeeds, the Children Act will have to be re-written and we say good bye to the welfare principle.
The petition concludes ‘a happy child with a lone parent will always make more positive impact than un unhappy child brought up with abuse’. I don’t argue much against that conclusion. But it is based on a false premise, that men are perpetrators and women are victims and once the men are removed all will be well. I hope I have made it clear why I don’t think this is a helpful assumption.
Men who present a moderate to high risk of killing or seriously injuring their partners are a danger to us all. I hope that most of them are in prison. I agree wholeheartedly that once they are out of prison they should not be having unsupervised contact with children unless they have shown insight into their behaviour and have completed treatment or therapy to successfully change their mindsets.
But men who score ‘low’ on a DASH assessment? Children born into relationships where both parents display abusive behaviour? What are the consequences for these children of then denying them any real relationship with their father?
If there is money to spend on supervised contact for low risk men, I hope there is money available to ensure early help and support offered to all who need it, to try to break the pattern of repeated dysfunctional behaviour in relationships.
We can’t usefully debate issues of violence in relationships and its impact on society if we are not prepared to consider the wider issues beyond the simple perpetrator/victim dichotomy. People and their lives can be messy and complicated. The Judges can’t help them with that, they can only apply the law. And before we petition to change the law to deal with a social problem, we have to be as sure and as honest as we can be about all the facts of the problem before us.