The politics of protection
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Louise Heath
Description: Children (iStock_Kontrec)
There’s a big change coming (to quote The Stranglers) that is going to herald a root-and-branch approach to private children’s family law cases in which domestic abuse is a feature, write Jenny Beck and Cris McCurley, looking at the expert panel’s final report on domestic abuse and the family courts.
In June, the Ministry of Justice’s (MoJ’s) expert panel report concluded a deep dive, nine months of intensive research into the private family law system; how and why it’s broken, and how children and victims of abuse are being failed by it. The resultant report, Assessing risk of harm to children and parents in private law children cases: final report (June 2020), is far-reaching, possibly even revolutionary. It heralds a new era of optimism for victims of abuse and all of us working in the sector. Above all, it is truth – a shocking glimpse under the bonnet, shining a light on what those working at the sharp end have known for decades but for a variety of reasons, including the absence of transparency and data, could not expose.
The triggers for change
It’s impossible to pinpoint the genesis of the movement for change because there has been no one single force driving it. The Women’s Aid (WA) 2004 report, Twenty-nine child homicides: lessons still to be learnt on domestic violence and child protection, which considered domestic homicide reviews of children murdered during, or as a result of, court-ordered or approved contact, together with the bravery of activists like Claire Throssell, who lost so much yet found the courage to stand up and speak out for those who can’t, sent shock waves through an established process. This led to the first version of Family Procedure Rules 2010 Practice Direction (PD) 12J (Child Arrangements & Contact Orders: Domestic Abuse and Harm) in 2010 under the presidency of the late Sir Nicholas Wall, who famously stated that we have to rid ourselves of the assumption that a man who is violent to his partners is nonetheless a good father who should have contact with his children.1See A report to the president of the Family Division on the publication by the Women’s Aid Federation of England entitled Twenty-nine child homicides: lessons still to be learnt on domestic violence and child protection with particular reference to the five cases in which there was judicial involvement, Nicholas Wall LJ, 14 February 2006.
This new era was quickly limited by the powerful voice of the fathers’ movement and the new battle cry of ‘parental alienation’, which didn’t just slam the breaks on change but threw it into reverse with the introduction of the presumption of parental involvement. This had the unintended consequence of the development of what the 2020 inquiry report calls the ‘pro-contact culture’. PD 12J, as revised by the implementation of the Children and Families Act 2014, introduced the overarching premise that it will almost always be to the benefit of a child to have contact with both parents. Claire Throssell and many others demonstrate how dangerous this presumption can be.
WA’s 2016 report, Nineteen child homicides, again highlighted the danger of contact with parents who are violent to their partners; 19 more children had died during contact with the abusive parent. It resulted in the third version of PD 12J, with Cobb J making wide-ranging recommendations about how private family law should address domestic abuse. The findings outlined in his 2017 report (Review of Practice Direction 12J FPR 2010 Child Arrangement and Contact Orders: Domestic Violence and Harm) about the need to fully assess and understand the impact of abuse not just on the child but on the other parent were promising, but when the new PD was issued, it had been watered down significantly.
Activists, including many lawyers and MPs, continued to seek a proper review of the impact of abuse on children and adult victims, how well we identify it, and how universally PD 12J is implemented and whether the other measures to protect victims through the court process allow justice to be upheld. Increasingly, reports of failure to recognise domestic abuse and implement measures to protect victims and their families across the country were raising serious concern.
Theresa May ushered in the Domestic Abuse Bill in 2017, but it was a far cry from what was needed and did not address the real problems at the coalface. Providing more remedies never fixes a problem if the existing solutions are already ignored or overlooked.
Labour MPs Louise Haigh, Gloria De Piero and Jess Phillips, in particular, supported the drive for a meaningful response to domestic abuse by the family courts, raising many parliamentary questions about the safety of victims and their children.
The publication of Sammy Woodhouse’s book, Just a child (2018), about her experience as a victim of the Rotherham grooming gang, added further impetus for change in how we view, understand and judge victims of abuse. Change was coming and it was palpable.
‘A full and comprehensive review’
No one who gave evidence to the expert panel of academics, lawyers and specialist interest groups had much optimism at the start of the process. The MoJ had promised a ‘three-month look’ at what was happening in private law cases involving children where there were allegations of abuse. The panel recognised that this look under the bonnet wasn’t going to be fixed by a quick oil change – the problems were much more far-reaching, the justice mechanism was broken. It actually took three times as long to complete what turned out to be a full and comprehensive review.
When the report itself was published, it came as both a surprise and a welcome relief. The panel identified four main barriers to achieving best practice in domestic abuse-related cases at every stage of the proceedings:
1 Resource constraints
The axing of legal aid following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in addition to cuts to the court estate, police budgets, children’s services and the funding for front-line abuse services, has deprived the sector of the machinery essential to make the system work. In particular, the closure and sale of courts, the reduction in sitting days and the cuts to court staff have meant that space in the court diary has become a precious commodity to be preserved for the most complex and significant cases. Inevitably, cases involving children being taken into the care system have had to take precedence. A terrifying hierarchy of risk has evolved. There simply isn’t enough actual time to hear private family law cases.
2 The adversarial system
The pressure of time and an adversarial system that doesn’t safeguard the ability to achieve best evidence has led to the minimisation of abuse, which is often ignored completely or written off as irrelevant or historical. The adversarial system pits parties against each other and invests in a culture where the parties’ positions can become entrenched. Abusive parents feel compelled to deny abuse for fear of not getting to see their children. A problem-solving approach is much better equipped to deal with cases at a point before they become beyond anything but a court resolution.
3 The pro-contact culture
When 1 and 2 are in place, then a pro-contact culture is almost inevitable. If there isn’t enough time to investigate properly, at any point in the process, then it is likely that victims’ experiences will be minimised (see, for example, pages 42 and 59 of the report). It becomes easy to see how a narrative that the mother is ‘just being difficult’, that ‘they both just need to move on for the children’s sake’ or, at worst, that the ‘mother is deliberately alienating the children’ (as opposed to trying to protect herself and them from further abuse) is all too often the conclusion.
This has led to PD 12J being deemed irrelevant in far too many cases. If not properly recognised and expertly assessed at the earliest stage, then PD 12J becomes meaningless. The risk is ignored, the protections denied. The rising number of unrepresented parties, coupled with the absence of a trauma-informed court space, has exacerbated the problem.
4 Silo working
With resources so stretched, different parts of the protective system are working in isolation from each other and vital information or evidence of abuse and its impact held by one section is not being made available to others. Significant decisions are made without essential evidence about safeguarding and risk being shared, placing children and the non-abusing party at risk.
The true impact of abuse is far more complex and nuanced, much more damaging and far-reaching, than it has been politically and procedurally convenient to recognise. If abuse and its impact are not understood and properly identified at the earliest point in the case, at the evidence-giving stage, there is a real risk of victims not being able to give best evidence or anything like it, due to their experience being minimised from the outset and their demeanour being misinterpreted.
Examples are cited in the report of judges being critical of a party’s evidence, saying (to paraphrase) things like: ‘Her evidence was all over the place. She kept jumping about in time, and it was confused and hard to follow. I find she lacks credibility and I preferred the evidence of the father, who was calm and clear’ (see, for example, pages 51–52). This, the inquiry concludes, is the crux of the problem as it does not consider the very real impact of trauma on memory and the ability to recollect incidents clearly and in a linear way. A traumatised witness is unlikely to remember dates and times, for example, seen as critical for ‘good evidence’. A complete rethink and a trauma-based approach is essential if we are serious about really tackling what is currently going so wrong.
Underpinning all of this is the adversarial system that sets parent against parent, as opposed to the panel’s recommendation of a problem-solving approach. If abusers cannot admit that they have behaved abusively, there is no hope of change for the better. If their abuse is minimised due to lack of court resources and lack of basic understanding of the risks involved, then the abuser has no need or incentive to change and no resources are put in place to help that change – the current system upholds their view of the world and who is to blame for their relationship breakdown.
So, is there a big change coming? While the MoJ has set out its implementation plan to put into action the recommendations of the report, little has happened to date. There is a feeling that it might quietly go away and that it’s impossible to fund. It is therefore up to us as concerned practitioners to make sure that this is fully implemented for a fairer, safer response to domestic abuse in our courts.

About the author(s)

Description: Jenny Beck - author
Jenny Beck is co-founder of Beck Fitzgerald.
Description: Cris McCurley
Cris McCurley is a partner at Ben Hoare Bell.