The launch of a campaign
Today sees a coordinated media push in support of a public inquiry into the secret family courts and their handling of abuse. The campaign has been brewing for many months, if not years – but today brings the announcement that 120 MPs have signed a letter to the Justice Minister calling for this inquiry, and significant amounts of BBC coverage.
The Transparency Project welcomes the call for more scrutiny of family courts.
The immediate precursor to today’s coverage is that on 10 April Louise Haigh MP made a speech introducing her private members’ bill (The Parental Rights (Rapists) and Family Courts Bill) to Parliament (Unfortunately the draft bill is not yet available – we’ve requested a copy).
Over ensuing weeks there have been a string of questions in the house from Haigh and a raft of articles in the mainstream media, often explicitly offered as part of the campaign, which the newspaper in question is backing. Each such article contains quotes from an MP and reference to the campaign, and in turn the case studies are retweeted and relied upon by the MPs in a sort of perpetual motion campaigning machine. The headlines talk of paedophiles and rapists, of outrage and fury, of scandal and secrecy. The impression created is of many, many instances of these injustices – but in fact the vast majority of the stories are just different aspects or versions of the same three cases repeated again and again. I’ve not seen a single news report which offers a perspective from anyone else involved in the featured cases (father, agencies etc) or which suggests that the journalists in question have attempted to verify the accounts given by the mother – which may or may not have been accepted by the court. It is difficult but not impossible to report family court cases (journalists can attend hearings but rarely do), but these difficulties never justify the presentation of one subjective account without any attempt to fact check. These stories help nobody. They create fear and worry and may not be the full story.
The Victoria Derbyshire Show
Today the Victoria Derbyshire Show, which has had a long running interest in the stories of women who have been the victims of abuse, ran an hour-long special on the issue. They had an enormous and varied group of guests. They are running follow-ups tomorrow and Friday. It was in many respects a valuable debate, which managed to bring in a range of views and perspectives and to hold a discussion which is always made difficult by the privacy restrictions around such cases. It is rare to see a mainstream broadcaster successfully host guests with such widely polarised views, or even to place representatives of organisations such as Families Need Fathers and parental alienation proponents in a room with passionate domestic violence advocates.
The accompanying article to today’s show tells us that, based on a review of serious case reviews ‘at least four children have been killed by a parent in the past five years after a family court granted access’. This is awful. It is clearly essential to know whether anything could have been done to prevent such disasters – but it is important also that such statements need some context.
First of all, as the online piece acknowledges, Serious Case Reviews (SCRs) ‘do not investigate the family courts, so it is not possible to establish whether the courts’ decisions led directly to the deaths’.
The conclusion in the Throssel Serious Case Review was read out and critiqued in the course of the show. It said that ‘It is important to acknowledge that the children were killed before CAFCASS had completed the Section 7 report or the court had made a final order regarding contact so it is impossible to know what would have been ordered. Furthermore the catastrophic events of 22 October 2014 could not have been predicted.’From Claire’s account it is indeed difficult to understand how this holds up or why unsupervised contact was ordered, but it is completely impossible to draw any conclusions regarding the other case, about which no details are provided. We simply don’t know what the other Serious Case Review says about the role of the family court in the deaths of the other two siblings, and it would have aided transparency for the Victoria Derbyshire show to link to, or otherwise identify, the report so we could form a fair view rather than speculating. I’ve asked their producers for a link to the report.
Secondly, in the year ending March 2019, statistics show a total of 58,000 new applications being brought to the family court (Cafcass’ Sarah Parsons talked of 44,000 but that is the numbers of private law applications – another 13,500 were also brought by social services over the same period). It is impossible to extrapolate to the exact number of children involved, but each case involves at least one child, and many involve more than one. Over a period of five years that can be conservatively estimated at a quarter of a million children. The four children that the Victoria Derbyshire show’s researchers refer to includes the two sons of Claire Throssel, a mother who has previously featured on the show and who today gave a harrowing account of how her children were murdered by their father. From remarks made on the show we know that since Clare’s sons were killed two further children have died from one family.
A system run by humans
It is difficult to hear, but even in a system where all judges are fully trained, and safeguarding processes are rigorous, risk is something that can be managed but not eradicated. Risk is a spectrum and these decisions are ultimately judgment calls made by human beings. In any system dealing with such large numbers of cases it is inevitable that in a small number of cases something will go wrong – this should lead us to ask serious questions about what has gone wrong, but these are not necessarilyevidence that the system is broken. It is certainly the case that since 2014 the safeguarding processes in family courts have been improved and are now far more effective, and guidance has been improved to emphasise the importance of domestic abuse and the need to thoroughly assess risk before making orders for contact. In my view judges and magistrates could benefit from more regular and more in depth training on these issues too.
Therefore, to the extent that things are still going wrong that is likely to be because processes and guidance are not being followed consistently rather than a problem with the processes themselves. Getting an insight into how these processes are being administered would address this point precisely, but as Transparency Project member Louise Tickle points out, finding out from parties, and then explaining to the public, what happens in a family court is by default not allowed – and though there is a mechanism to relax those restrictions, it is still extremely hard to do so, and relies on an application to the judge who has presided over the process.
The problem with anecdotal evidence
One difficulty of relying on anecdotal accounts is that such accounts may be illustrative of how the system worked several years ago rather than what would now be likely to happen. Barrister Charlotte Proudman gave direct accounts of the types of arguments which are successfully used to push forward unsupervised contact where there is a background of domestic abuse and of dismissive attitudes to domestic abuse. I recognise her account from my own practice, and I’m sure such things still happen – though my impression is that things are improving. I would very much like to know how typical these observations are across a wider evidence base, because my own observation alone is not enough (not least because we barristers see far fewer of the cases going through the courts since legal aid was cut, and as such have far fewer opportunities to spot or challenge out of date attitudes or wrong views). These matters justify being looked at systematically and objectively so that a distinction can be drawn between cases where an aggrieved parent simply doesn’t agree with the court’s decision (there is always one of them in every case) and case where those grievances have some justification.
Today on the Victoria Derbyshire show Louise Haigh slipped back and forth from acknowledging that we simply don’t know the scale of the problem that is being anecdotally reported by women, to making definite assertions that appear to accept those anecdotal accounts at face value and asserting a systemic problem :
There is a culture of secrecy and judges, lawyers [etc] are all operating with impunity…I don’t know how bad the problem is, the minister doesn’t know how bad the problem is, I don’t think the President of the Family Court knows how bad the problem is. There is no independent research on contact orders being made, only stories that we’ve heard that suggests that things may be going wrong.
Later she described a
‘Kafkaesque system where nobody is helping [mothers], they have to jump through ridiculous hoops, their children are sent for unsupervised contact with men who are dangerous and we don’t know the scale it could be the tip of the iceberg.
Whilst Clare Throssel’s case study is a detailed and compelling example of something apparently going very wrong, in others, there may be layers of unrevealed complexity behind the decisions made in those cases – whether that be because allegations have not been raised or proved, or because the court has assessed the risk from proven abusive behaviour and has concluded it has reduced or can be managed before making an order for contact.
Some or all of these may be examples of wrong, inappropriately risky decisions – but neither Haigh nor I are in a position to say so without much more information.
The wrong target?
The campaign is a broad coalition and as such the way it’s aims have been expressed varies. It seems though that campaigners’ criticism is largely directed at courts and judges (especially male ones); but the actual source of some of the injustice complained of is not necessarily something a judge is able to change. Much of the difficulty arises from the fact that one or other party (victim or abuser) has no legal aid and is left unsupported, unrepresented, or fearful of being re-traumatized by direct questioning in court by an unrepresented abuser. The judiciary and legal professions were ignored when they told previous governments not to implement legal aid reform in 2013, they predicted exactly these problems. Where they can, they mitigate the effects of legal aid cuts. But they cannot change them. The judiciary and legal professions begged for the government to implement legislation to prevent cross examination of victims by abusers and to fund a scheme equivalent to the one operating in the criminal courts so that questions could be asked instead by a lawyer. That legislation fell with the last general election and this one has been too distracted to implement its replacement. What are the courts to do about this? A fair trial requires that when serious allegations are made there must be an opportunity for those allegations to be (appropriately) challenged before the court makes decisions based upon the disputed events having happened.
But it’s not just legal aid – there are other areas where the courts are criticized too – for allowing the rapist who has fathered a child to have notice of care proceedings, or any role in the child’s life. The courts must operate on the basis of the law given to them by Parliament, and the rules given to them by the Rules Committee (whose rules are also approved by Parliament). It is those laws and rules which determine who has parental rights and responsibilities, and who should be told about and participate in a court case. The court has limited powers to terminate parental responsibility and to dispense with the usual arrangement for a father to be notified of a court case (even a serious one that might lead to the child being adopted) – but it can only act when an application is before it and it has the information necessary to justify such steps. Criticism of a judge for wrongly exercising those powers it does have when an issue is raised is legitimately made – but in the case of Sammy Woodhouse it is unclear that the issue was ever raised with the judge. If fault lies anywhere in that particular case, it seems to lie elsewhere.
The tone and quality of public debate matters
Online today many lawyers working in the system are discussing the failures they see in the system – the inconsistent approach to domestic abuse, sometimes the minimisation of it or the prioritisation of cases where social services are involved over those which ‘just’ involve two warring parents… All sensible people would accept that these issues should be looked into, that such inconsistency may place children and adults at risk. But the coverage today is in entirely different terms.
On national radio today MP Louise Haigh went much, much further. She said that children are being put at risk and even murdered because of the complete lack of transparency and absence of scrutiny of the Family Courts. She said that as a result of this there is ‘a culture of impunity’. To draw a causal link between the lack of transparency and the murder of children is unhelpful at best, and less charitably expressed is highly irresponsible. And it perhaps weakens the stronger case: that the lack of transparency does make it really hard to report these stories and hold authorities to account.
If there were such a culture of impunity one might expect a far higher number of catastrophes than we hear reported – but I am absolutely prepared to accept that my belief that the problem is more likely inconsistency in the understanding and treatment of domestic abuse, rather than a consistent culture of impunity is also not the be all and end all. It should be laid alongside more objective evidence in the course of a full inquiry.
Whilst that takes place parents will be hearing and reading what is being said by their elected representatives about death and murder and courts not listening to allegations of domestic abuse and will react accordingly. We have seen a number of cases in the last couple of years where women complaining of domestic abuse have sought remedies outside the family court, by fleeing with their child or by taking to social media – rather than by engaging with a court process the media has taught them to mistrust. Those high profile cases themselves feed fear and distrust but the story often turns out to be far more complex than the headlines and tweets suggest.
A lack of data
Haigh is right when she says that :
I have sought to establish how widespread a problem the issue of convicted rapists gaining access to their children is, but no data is collected to allow scrutiny of the courts and their decisions. This is not the case in the criminal courts, where we know outcomes, we can scrutinise data and we can establish if legislation is being properly upheld, but we cannot know that in the family courts.(from the 10 April speech)
But while I acknowledge and sympathise with the real difficulties of reporting and scrutinizing the work of the family courts, the exclusive reliance upon anecdotal evidence from a small number of women is not a good foundation for some of the sweeping criticisms also made.
I too am concerned at the things that go wrong in the Family Court – at the injustices that arise from legal aid cuts and from an inconsistent or shallow understanding of the nature and mechanisms of domestic abuse – but what I am unable to do is work out whether or not the case studies I’ve read about in the national press truly represent examples of those injustices or whether something more complex and nuanced is not being revealed, and nor can I gain any sense of whether or not these examples are typical (though from my own experience it isn’t, I accept my experience is not the full picture either).
An independent inquiry must start with an open mind
It is worrying that the purpose of the inquiry is framed in this way :
‘It should not be down to charities to expose these issues at the heart of our justice system, so I believe we need an independent inquiry to establish the level of this discrimination in the courts and what needs to be done to address it.’(from the Speech on 10 April)
That to me sounds like a prior judgment. It is one I’m not prepared to make on the basis of what I’ve read in the press or even my own extensive experience. I agree we need to ask questions about these issues, and evidence and data will be critical to how far we can find answers. But what we must not do is start from the answer and work backwards, or recruit evidence only to prove our view is right.
So yes, let’s have an independent inquiry. Because for too long unverified case studies have been offered in place of objective evidence. That evidence is hard to gather, hard to report on publicly and hard to analyse in depth – but it is increasingly apparent to me that it is a task that needs to be carried out independently, thoroughly and somehow publicly if either women or men are to have confidence about the work of the family courts.
I would suggest that any inquiry must not just look at practice attitudes and behaviour of those working in courts (judges, cafcass and lawyers) and not just at the subjective experience of victims – but also at the law – the duties it places on judges to do justice to all parties, the powers it does and does not give them, and the tools the court is given.
An inquiry which simply describes accounts of the treatment of women and girls will be flawed – it must look at matters objectively and from a range of different perspectives to gain true independence from the narratives and counter narratives that plague the Family Court.
The Transparency Project have been working along with others within the family justice system to increase visibility of these issues. This has culminated recently in the launch of a pilot scheme is running that allows legal bloggers to attend private family court hearings and the President of the Family Division has recently announced a timely review of transparency issues. Journalist Louise Tickle, through her Open Family Court project has proposed an Open Family Court pilot allowing independent scrutiny of cases, and is going to be seeking funding for its design, implementation and evaluation. The Transparency Project has published a guidance note for parents, dedicated to the issue of domestic abuse and how it is dealt with in the Family Court. If there is a culture of secrecy, many of us within the system are working on finding ways to break that down.
Currently though, furthering public understanding of them is genuinely tough given the current rules – a public inquiry has potential to further public discussion and understanding, increase public confidence and form a sound basis for public policy changes if required. The current debate does not achieve any of those things. The issues are real, but the evidential base is weak. The case for more transparency is powerful.
Watch the Victoria Derbyshire Show tomorrow at 10am (Thurs 15 May) when Transparency Project Chair will be participating in a follow up discussion to today’s special. [Update : you can view that episode here]
[Updated 9.35pm to remove duplicate paragraph]
Feature pic by Bart Maguire on Flickr – creative commons. Thanks!