Twitter commentators asked questions last week of a BBC headline:
Thousands misusing abuse orders to get legal aid, says parenting charity
And the ‘click-bait’ opening sentence of the story itself:
Families Need Fathers says parents are being encouraged by some solicitors to file for non-molestation orders – injunctions used in urgent abuse cases.
Some of the twitter comments are shown at the end of this blog post.
BBC News attribute both the headline and the opening line directly to Families Need Fathers (FNF) though neither quite match the detail of what the FNF spokesperson is quoted as saying in the body of the report. At other points, it’s hard to pin down quite what FNF say and what the BBC say, and where these views start and end.
But, essentially, BBC News set out a series of contentious claims that FNF do seem to have made; fail to interrogate the factual basis for them whatsoever (we’re not counting the ‘balancing’ quotes from Women’s Aid and the MOJ tacked on the end); and don’t specify the evidential basis, let alone provide links.
Nor for that matter do the BBC link to either the speech by Sir James Munby or the Court of Appeal judgment by the incoming President that are cited. The former is hardly relevant because it was a comment on applications heard without notice to the other side. The latter was a call for speedier court hearnings to adjudicate on disputed facts, with which no one would disagree.
What FNF did say (according to the fuller text) was:
- New figures show a 30% rise in [Non-Molestation] Orders made after legal aid was axed in everything but abuse cases in family courts in 2012. In some regions…as much as 900%.
- That the rises are the result of the government’s well-intentioned but ill conceived changes [legal aid being axed in all but abuse cases]
- That FNF get thousands of (mostly) men telling them they have had NMO’s made against them on grounds that those men considered to be either fabricated or grossly exaggerated.
- And that FNF suspect solicitor’s are talking clients into making injunction applications that serve the interests of applican parents and their legal firm
So do new figures show a 30% rise in orders made after legal aid was axed in everything but abuse cases in family courts in 2012?
We don’t think so. (And it’s no good looking at rises from 2012 anyway, because the changes in legislation in 2012 didn’t take effect until April 2013).
BBC News don’t specify the “new statistics” FNF refer to, let alone link, or explain how they interpreted them to reach their 30% figure, which makes commenting unnecessarily difficult. There’s no sign of a published press release at the FNF site. A Telegraph piece we stumbled across later, that was written on the same day .says (wrongly we think) that they came from a freedom of information request by FNF. (The ‘men’ have also morphed into ‘husbands’ in that piece).
We think the source of FNF’s 30% claim is probably the new Family Court Quarterly figures (January to March 2018) published on 28thJune. The accessible MOJ bulletin of headline features here doesn’t cover NMO orders made but Table 7 at page 9 and the easy read graph we’ve copied above shows applications made figures. (These should also show rises from April 2013 from the legal aid changes). Table 7 shows applications for NMO’s across England and Wales rose around 20%, (not 30%), between April 2013, when the new rules took effect and March 2018 (latest available figures).
We can also calculate orders made from the accompanying Quarter 1 2018 Family Data available here. Again the rise from Quarter 2 of year 2013 (when the changes took effect) to now, looks more like 20%.
The BBC report FNF claiming the 30% rise from 2012, while the Telegraph say they claim the rise from 2011. And indeed the only way to show a 30% rise to now seems to be by calculating from an all time low in the figures in late 2011. That doesn’t seem a reliable way of calculating the rises given the rule changes only came into effect from April 2013.
We also suspect there’s been no new FOI request. Rather a re-hashing and blending of old data that Custody Minefield analysed back in 2015, on odd local spikes in NMO’s (see later). And re casting them as ‘news’ by way of the newly published quarterly family court figures.
(Civil Legal Aid quarterly legal aid figures also show expected and intended rises in legal aid granted as a result of the government widening the prescribed forms of evidence of domestic abuse accepted by the LAA in January 2018, to include statements from domestic violence support organisations and housing support officers and ending the time limit of 5 years. But FNF aren’t referring to this)
Can we assume such rises as there have been are the result of the legal aid changes?
Well not from these statistics on the national trend frankly. They tend to indicate the opposite. Because they also show that numbers of NMO applications were rising, not from April 2013 (when we’d expect them to start rising if the FNF claim that they’ve shot up since the new legal aid rules axed legal aid other than in abuse claims. were true), but from the back end of 2011 when they hit an all time low. And are still rising now. (There was a steady decline in applications from their highest in 2009 to their lowest at the end of 2011 (with peaks and troughs in between), followed by a steady rise from late 2011 continuing to 2018 (again with peaks and troughs along the way – including a sharp rise at the end of 2012 just ahead the new rules, and another slightly sharper rise of about 500 applications at the second quarter of 2013. The impact of the new rules might well be reflected in that last rise but we can only logically attribute, say, 10% of that rise to the new rules (maybe 100 applications across England and Wales) – because the graph plainly shows the numbers were rising regardless, with that rise just becoming slightly steeper. And as FNF acknowledge, private law applications are generally rising anyway, with a 20% rise in the last 2 years.
Does even a 20% rise since early 2013, in part reflecting legal aid rule changes, tell us anything about whether (mainly) women are making exaggerated or false claims of abuse for legal aid?
No factual basis is provided for this claim, implied by FNF and ramped up by BBC (and Telegraph) headlines. Obvious alternative reasons for the national rises include the police recording record numbers of domestic abuse-related incidents and offences and greater confidence in reporting (as Women’s Aid suggested); and greater awareness of domestic abuse and how to tackle it (as the MOJ suggested). To which we would add the likelihood that genuine victims of abuse are legitimately motivated to apply for NMOs and see them through by the (again legitimate) wish not to be self represented in proceedings involving the person they say was abusive, now legal aid depends on it.
Anything else from which to conclude that (mainly) women are making thousands of false claims of abuse for legal aid?
The thousands of men?
Charity case-workers say they are seeing “thousands” of parents, mainly fathers, who have been made subject to these orders for things that they do not consider to be domestic abuse. These could be angry comments thrown in the midst of the break-up or dealing with child access arrangements or unpleasant text messages, they say.
It isn’t FNF who say this shows that thousands of false claims of abuse for legal aid are being made. The BBC headline makes the claim. But the implication seems to be swilling around in what FNF do say. We think it’s self evident that what thousands of men are telling case workers at FNF might tell us as much about some (mainly) men’s lack of insight into the impact of their abuse on (mainly) women and children, as it does about what actually happened as a matter of fact in (some) other men’s proceedings. It’s information that warrants questions or research, but not an evidential basis for claims that thousands of women make false claims for injunctions merely to obtain legal aid.
Families Need Fathers says parents are being encouraged by some solicitors to file for non-molestation orders – injunctions used in urgent abuse cases
This morphs further down the article into:
The charity suspects [our emphasis] that solicitors’ firms are talking parents into seeking such orders because it enables them to qualify for legal aid, from which both the legal profession and the complainant could benefit.
It’s not possible for us to show this doesn’t happen and nor are we seeking to. We know unintended perverse effects from legislation and policy can play out in subtle but important ways. What we think is much less likely is that there are many, if any, rogue firms of solicitors acting in the sort of intentional, corrupt way implied. It’s not a solicitors job to persuade clients to do anything. It is their job to advise on the risks and advantages of possible courses of action on the basis of the instructions they are given. It’s also their job to certify to the legal aid agency that each legal aid certificate they apply for on behalf of a client has a reasonable prospect of success based on the facts as instructed and the evidence available to corroborate them.
The claim seems to emanate from FNF’s 2015 freedom of information data that isn’t published anywhere that we’ve seen. In stark contrast to the BBC and Telegraph ‘stories’, the authors of this Custody Minefield blog do seem to have genuinely interrogated the FNF data on regional spikes in the numbers of NMO’s made, before offering a view. They say:
something very odd is happening across the Midlands. We’re making no allegation that firms are abusing the system, however the stark difference between the two regions seems worthy of detailed investigation.W
Which is a far cry from the BBC headline or the FNF comments.
We also make no assumption about possible reasons behind any local spikes but did wonder if changes in a large firm in the area (a new solicitor with specialist interest/ a business decision) might have meant an untapped but legitimate need for NMO applications in the area had begun to be met (See ONS evidence that domestic abuse remains underreported if anything).
An accurate, balanced news report?
We doubt the BBC News article offends the Broadcasting Code that requires due accuracy in reporting and due balance in presentation (save perhaps the headline and opening line). The BBC are careful to say little distinctly in their own voice, and have ensured comments from Women’s Aid and the MOJ, offering alternative perspectives on the statistics, their meaning and the schemes priorities.
It’s more that it’s depressingly insubstantial and feels more like the BBC accepting easy clickbait column inches, in exchange for an FNF platform to make un-evidenced and quite serious assertions, that the BBC make no attempt to research or interrogate. And the children on the wrong end of conflicted or abusive parental relationships and the sometimes polarised agendas of adult campaign groups, deserve so much better.
Nor are we suggesting that FNF should not ask questions, including in national media. What might be behind any national rises or local larger spikes? Are we yet doing all that is reasonable to reduce instances of false allegations that can have a devastating impact on some (mainly) men and their children, and any other unintended perverse consequences* (see @SandreJ tweets below), without undermining the need to ensure that legal aid is actually reasonably accessible to the (mainly) women who are genuine victims of abuse and violence? Why has the MOJ only now published their 2016 research that presumably informed the January 2018 widening of the gateway evidence for evidencing domestic abuse for legal aid? Is further research required?
The problem is that FNF (as reported here by the BBC) don’t ask questions. Or explain their calculations. Or locate their views in the context of a statutory scheme that parliament intended to prioritise the protection of children and parents from harm over other considerations, including the inevitable consequence of some false allegations/claims, in the absence of a better alternative. Nor in the context of alternative perspectives. Or evidence that domestic violence and abuse are under-reported. Or that (mainly) women were struggling to meet the evidential requirements to obtain legal aid ahead of the January 2018 widening of the evidential rules. Sadly nor do the BBC or Telegraph.
The real news
The real news here may be the state of UK journalism. And the symbiotic relationship between journalists under pressure to churn out content that readers will click on, and the organisations keen to prioritise public exposure for their arguments, over collaboration and research to achieve genuine change for children.
Twitter Comments (with thanks):
— Julia Belyavin (@juliabelyavin) July 3, 2018
This could provoke debate. Is Transparency Project @seethrujustice reading this? "Thousands misusing abuse orders to get legal aid, says parenting charity" The piece shouldn't discourage true abuse allegations oft under-reported. https://t.co/lH3hbq3A9Z https://t.co/cmTPIFs4Fj
— Tony Roe Solicitors (@TonyRoeDivorce) July 3, 2018
One is the drafting that implies Munby and Macfarlane have endorsed the ‘claims’ made when nothing of the sort. The claims of ’thousands’ of misused NMOs. The lawyers talking clients parents into seeking NMOs. ‘Parenting’ charity …. The BBC gets worse and worse.
— Liz Trinder (@LizTrinder1) July 3, 2018
1/n I know you will know about template letters for legal aid, posting link for medical proof for those who may not be familiar w/content – https://t.co/K0aEjnJi0d. Note that letter asks health professional to confirm presentation *and examination*
— SandreJ (@_SandreJ) July 3, 2018
2/n GPs charge for provision of letters, so my experience was that health visitors would frequently be asked to provide a letter. HVs generally do *not* physically examine individuals, so I used to insist that standard wording was changed.
— SandreJ (@_SandreJ) July 3, 2018
3/n to read something like "The records show that X alleged on Y date that s/he (usually she, it has to be said) had experienced Z.". As a result, I sometimes came under considerable pressure from solicitors representing individuals looking for legal aid.
— SandreJ (@_SandreJ) July 3, 2018
4/n i.e. they wanted the wording exactly as template. I refused, as this would, essentially, be asking professionals to sign off on a lie. I wonder how many well-meaning and experienced healthcare professionals don't recognise the nuances in this letter ..
— SandreJ (@_SandreJ) July 3, 2018
5/n … and just sign it, as presented to them, in the interests of helping their patient. The https://t.co/hL8qPReGtF website wording is inappropriate in my view: should be limited to professionals who do examine patients rather than providing other types of support /ends.
— SandreJ (@_SandreJ) July 3, 2018