Thanks to Emily Ward for alerting us to this gem of a headline from Sky News : Man loses court fight over wife’s ‘flirtatious’ kisses on text messages.A family court judge has said a woman’s kisses on texts to her former husband are not proof he wasn’t abusing her.

It is yet another example of the media taking one point of detail contained in a judgment, and featuring it so to give the impression that it is a key factor in the decision.

What is particularly striking about this news item is that it gives absolutely no details at all about the abuse that was alleged by the mother, and which the judge found proved – facts which themselves would have made a perfectly newsworthy item. The judge found that :

  • the father had sex with the mother against her wishes on numerous occasions throughout the relationship. On one occasion before the marriage he did so intending to make her pregnant so that he would know whether she was able to produce children. She had an abortion because sex outside marriage was disapproved of in her parents’ culture.
  • Whilst on honeymoon, as a form of sadistic control, the father made the mother undress and sit naked on the bed with the cooling air conditioning on full while she ate her food. When the mother stopped eating the food he slapped the mother hard on the face, causing a red mark. 
  • On some occasions he had sex with the mother against her wishes whilst one of the children lay in a crib beside the bed. One of the children was conceived as a result of such an incident. The father told that child (when adult) that his mother had said that he was the result of father raping her.  
  • On one occasion the father shouted at the mother whilst drunk, smashed a drinking glass and pushed the broken glass into her face and cut her. The mother had to have stitches. The children were present.
  • From 2016, the father carried out a campaign to assault, emotionally harm and frighten the mother, including by throwing sausages containing razor blades over the fence so that her dog would be seriously injured and by killing her cat and leaving its dead body on her doorstep. The judge said these were acts of exceptional cruelty and intended to emotionally harm the mother. 
  • In March, 2018 the mother was seriously injured in an attack. She sustained extensive bruising, two cracked teeth and her migraines have become worse. She was kicked in the head several times and punched. The assailant used a weapon, namely a blade, which scratched her face. The judge found that the father had organised this attack on his behalf.

The full judgment in the case explaining why the judge believed those allegations and found them proved can be read here : TK v SK (Children: Fact finding: Serious Domestic Abuse) [2018] EWFC B81 (21 November 2018). In the course of his judgment the judge also set out some interesting details about the father’s attitude to the mother and the way in which he had responded to allegations and to her injuries following the assauIt is correct that part of the father’s defence was that the mother signing her texts with a kiss was evidence that he wasn’t an abuser. After taking into account the evidence given by both parties and the way they presented in evidence, the judge rejected that defence. Whilst this issue is covered in the judgment it is only a small part of it. It should have been absolutely clear to any journalist giving even the briefest consideration to the judgment that the court fight was not ‘over’ flirtatious text messages. The use of the word ‘over’ suggests that the texts were a central theme or issue, when in fact the judge evidently found this to be a weak defence and that other evidence was far more compelling. Whether or not you agree with the judge’s view on this, the text message point is marginal – and the judge had a wealth of other information that none of us have available to us. Reporting the text message aspect of the case without any of the other information makes Sky’s report basically meaningless.

We think that the fact that a judge was prepared to make such serious findings (including that the father had arranged a serious assault on the mother in the absence of any direct evidence linking him to the attack) would have made a legitimate and interesting news item, particularly in a climate where it is often said that Family Courts do not take women’s allegations of rape and abuse seriously, and that they are never believed (especially in the absence of independent evidence). We have seen a resurgence of such complaints on social media in the context of discussions about the missing mother Ellie Yarrow-Sanders. Clearly not all allegations of abuse result in findings, but in this particular case the judge did not shy away from the task, even though many of the events in question took place more than a decade ago and there was little more than ‘he said she said’ to go on. It should also not be forgotten that many fathers and father’s rights groups complain that judges are too ready to believe anything that a mother says, even where (as the father in this case complained) the allegations are made out of spite or just to stop contact.

A second potential point of public interest that Sky neglected to mention is that the judge had to pose questions to the mother on behalf of the father, because the father had no lawyer to do so on his behalf :

Questions were asked on father’s behalf by me, which he had prepared and sent me in advance. This was undesirable and unsatisfactory. The questioning could not be carried out with the same robustness and careful and thorough forensic preparation that a professional advocate acting on behalf for the father, with responsibility to him, would have done. I was not able to approach the questioning from the father’s perspective as I do not represent him and must maintain independence at all times. I was in no way able to take place of his own advocate, had he chosen to instruct such advocate. I did what I could to encourage him to be legally represented but he declined, as is his right.

It’s not completely clear from the judgment why the judge felt that he had to ask those questions rather than arranging for the lawyer representing the child to ask those questions instead (we know from experience this sometimes happens). This isn’t always possible as the child is not always represented, but in this case we know there was such a lawyer, and it is apparent from the judgment that they were proactive in asking questions, as the judge says both the child’s and mother’s lawyers :

demonstrated very considerable skill and carried out effective cross-examination of the father who therefore faced formidable challenge to his case.

In the last couple of years there has been real concern expressed about the potential unfairness that is caused by the fact that legal aid is not available for the person accused of abuse, and there was a push in the media to highlight and bring an end to the practice of allowing a potential abuser to directly question their victim when they had no lawyer. This led to the revision of PD12J, which sets out the way courts should approach cases involving allegations of domestic abuse and draft legislation, which would have provided legal aid, and thus a lawyer, for the purposes of such cross examination. Unfortunately that draft legislation was shelved as a result of the last general election. Although the government recently managed to pass a number of pieces of legislation reforming aspects of the court process, these new arrangements did not feature.

In this case it appears that the problem was not a lack of legal aid but a refusal by the father to instruct a lawyer (which implicitly he could afford). The shelved legislation would have imposed representation upon an accused who was either demanding to ask questions himself or refusing to instruct a lawyer – had it been in force the judge in this case would never have had to ask questions himself and the weaknesses in the process described by the judge would not have been a feature.

We will draw this blog post to the attention of Sky News and ask them to amend their article to link to the judgment and to include some more of the relevant key facts.

UPDATE 14 JAN 2019 :

Yesterday we attempted to complain to Sky News after our tweets were ignored. Our email bounced. So far efforts to get any response from Sky have failed.

Our attention was drawn today to a very similar news item in The Independent. On checking, we have now identified a large number of other, very similar pieces, apparently based on copy originally provided by the Press Association (although most of the coverage has a named writer and one is marked ‘exclusive’ they all share large tracts of identical text – and the Independent is the only one to acknowledge the source as PA).

The links to the articles we’ve found in the major newspapers are below, but you can also see the results of our google search here, which includes pieces on radio station websites and other smaller news sites.

Independent : Man wrong to think kisses in estranged wife’s texts were ‘flirtatious’, judge rules. This publication fails to specify the abuse, wrongly states that the unspecified abuse only took place during the relationship and then somewhat tacks on a couple of paragraphs about some legislation as if there is a direct connection :

The judge’s ruling comes ahead of the publication of the government’s draft Domestic Abuse Bill which is to include new domestic abuse protection notices and orders,

The bill will also lead to the creation a Domestic Abuse Commissioner responsible for monitoring services, raising awareness and making recommendations to authorities.

which makes the failure to spell out just how serious the proven abuse was even more weird.

Mail Online : Signing off text messages with a ‘x’ is NOT being flirtatious rules judge as he finds in favour of estranged wife in family case. In a masterful piece of understatement, the Mail say en passant at the end of the article, that ‘The judge said that the man had in fact been abusive.’ And of course the Mail’s headline generalises a finding about specific texts in a specific relationship to a general proposition that signing off texts with a kiss isn’t [ever] flirtatious (as do The Express below).

Sun : KISS OFF! Judge rules wife ending texts with kisses to estranged husband was not flirting. They get the prize for the most egregiously inappropriate headline, given that this case was about rape and extreme abuse.

Express : Signing off text messages with ‘X’ is NOT flirting rules judge during family court hearing. The Express get extra inaccuracy points for asserting that ‘Concluding the hearing, Judge Ahmed ruled the man had abused his wife during their marriage’, apparently having neglected to notice that the father was proved to have killed the family cat, tried to feed the dog razor blades and arranged for the mother to be beaten up with a man with a knife after the relationship came to an end.

The distinct impression that one gets from this raft of identikit reports is that none of the newspapers have even bothered to read the judgment the Press Association have written about before tweaking and publishing. We would suggest (again) that the PA ought to provide links to the judgments when circulating copy and that publications ought to check those judgments before regurgitating.

We will be complaining to each of the above publications and the relevant regulator where applicable / necessary in the coming days. Watch this space…. (further update – complaints now submitted…)

Feature pic : quilt by Heather Acton on Flickr – creative commons licence – thanks.