This is Part 2. You can read Part 1 here.
A (A Child)  EWFC B16 (12 March 2019)
In this case, the court was making a final decision in care proceedings. The decision to be made was whether a child could be cared for by both of his parents, just his mother or whether his care had to be passed to the local authority with a plan for adoption. The mother had three other children, and their father was brother of the father in the case (the child’s uncle).
When making the decision, the court has to carry out a full analysis of all the realistic options for the child and weigh them against each other. The court can’t approve a plan for adoption unless satisfied that nothing else will do i.e. there is no other arrangement that can realistically be put in place that is in the child’s best interests.
The focus of the case was the issue of domestic abuse, its impact on the parental relationship and the consequential relevance for the child. Reassuringly, in paragraphs 3 to 5, the judge showed a thorough understanding of what domestic abuse is, and the impact it can have on children. He said:
“DV/domestic abuse(see Practice Direction 12J) is a broad concept including not only physical violence but also non-physical behaviour such as controlling and coercive behaviour (which may be physical, sexual, financial or emotional / psychological in nature). Ultimately domestic abuse is about control and the inappropriate misuse of an unequal power relationship:
DV has the potential to have profound impact upon any child experiencing life within such a setting. Whilst there are obvious physical risks attendant upon DV (directly or by being caught up in an incident of violence) of equal relevance is the impact at an emotional level. Any child living with DV is confronted by a myriad of emotional issues ranging from simple fear for their care giver subject to DV to more complex issues touching upon the predictability of care given by a parent who may at the personal level oscillate between focused care and angry/unpredictable presentation. It is for these reasons that the Court takes a sophisticated approach to DV and is wary about arguments which seek to minimise or downplay the significance of the same. A further complication is the often-intimate nature of the abuse. Played out in the private sphere there may be only the most limited available evidence as to what is taking place and the key participants may be unwilling or unable to be fully open in their disclosure.
As alluded to, this case had a complex family dynamic. Over a period of a few years, the mother had at different times been in a relationship with both the father and his brother and had children with them both. Unfortunately, both relationships were violent. This father had been a central figure within the previous proceedings concerning the older children and at the final hearing in that matter the mother and father presented as a couple seeking to care for the children.
Incidents of domestic abuse included:
- A violent incident where the father struck the mother whilst she was heavily pregnant with her third child
- The mother’s three older children were found with injuries and removed. The mother agreed she had struck them with an implement.
- The father of the older children is alleged to have hit the mother with a phone and strangled her
- During the parenting assessment of the mother, there was a suggestion that the father had attempted to strangle himself
- The mother alleged that the father of the older children had raped her but later withdrew the allegation whilst maintaining its truth
- There was an incident between the mother and the father of the older children which ended with each hitting the other
- The mother suffered a black eye at the hands of the father of the older children.
The findings made in the previous proceedings can be briefly summarised as:
- The triangular relationship between the adults was a standout feature and was toxic – it got in the way of their ability to prioritise the needs of the children
- The children were exhibiting problematic behaviour patterns deriving from the care they had received
- The adults had an unacceptable level of tolerance of domestic violence. Regarding the incident where the father struck the mother whilst she was pregnant, the judge found that the father had a very low threshold for resorting to violence and a very significant need for intervention work at an intensive level to correct his behaviour style
- The domestic abuse was not limited to violence alone and there was evidence of controlling behaviour
- There was minimisation on the part of the father
- The mother was a victim to the behaviour and the judge was concerned she accepted domestic abuse as the norm and minimised what had happened
- A year’s engagement with domestic abuse work and therapy would be required to correct the mother’s deep-rooted difficulties
- The father also needed to undertake work to support any progress made by the mother – due to the father’s evidence at the hearing, the judge was sceptical as to whether there was fertile territory for positive change in the relationship
- In the previous proceedings, the decision had been that the children’s needs could only be met by the making of both care and placement orders. In the present case, the judge decided that when considering domestic abuse now, he needed to look at the historic position found in the previous proceedings (set out above), the nature of the work undertaken since that date and factual developments since the last judgment which shed light on continuing concerns relating to domestic abuse.
- The work undertaken by the mother had been an assessment at a residential unit, the Freedom Programme, Domestic Violence Intervention Project (DVIP), couple counselling and individual counselling. The work undertaken by the father had been an assessment at the residential unit, a piece of work commissioned through DVIP and couple counselling.
Evidence was given by various professionals as to the work done. The overview of the evidence was that the father still has significant work to do and was at an early stage (pre-contemplation stage). Progress for him would be slow, over a period of 9-12 months and would require a professional who fully understands the issues confronting him.
The conclusions as to the mother were more positive but ultimately somewhat limited by her dependence on the relationship with the father. She was felt to be at the contemplation/action stage but this represented the start of a journey.
There were five new incidents which were said to be of relevance when considering actual progress in behaviour and attitudes. The judge commented:
I of course remind myself of the findings within the May judgment. In the context of a concerning relationship involving DV it is relevant to examine the available detail to understand how the relationship appears to be progressing.
The new incidents can be summarised as a verbal argument between the parents, a build up of tension prior to an incident (which professionals said shone a light on the insight, impulsiveness, aggression and other behaviour patterns of the father), the father kicked a child’s blanket after a disagreement with another resident at the unit (there was concern from professionals that the situation could have escalated had it not been for staff intervening) which resulted in his placement being terminated, the mother raised her voice to the father and said hurtful things and there was a stand-off at supervised contact whereby the father refused to hand the child over to the contact supervisor to allow them to accompany the mother out of the building. The stand-off lasted 45 minutes with the father calling the police.
Over the course of nine long paragraphs, the judge conducted a careful analysis specifically on the question of domestic abuse. He found that he interpreted the significance of the majority of the new incidents differently to the professionals and that the professionals had placed great weight on these incidents when forming their conclusions. He concluded:
The net effect is that I have been left with a distinctly different conclusion with respect to the period of the assessment insofar as it touches upon evidence of continuing DV in the adult relationship or indeed as to the father acting out concerning behaviour. I agree there has been evidence of problematic behaviour but this has at least to be considered in the context of the very challenging circumstances.
He was also concerned that there had been a failure to “reflect on features which point in the other direction” i.e. to suggest that things had actually improved.
The domestic abuse was considered as part of two aspects of the welfare checklist, namely, the child’s needs and any harm suffered/likely to be suffered. The judge considered all the realistic options in the case, and concluded that he wasn’t persuaded it was proportionate to make the care order. He considered the decision one of the harder decisions he has had to make. He thought there would be times when the father’s “rough side” shows and that on such occasions arguments may arise and become heated but that on balance it was less likely than not that his behaviour would be of the same level as had been found previously. The judge also did not favour the alternative plan of the mother separating from the father. The final order made was a supervision order for a period of 12 months.
It’s encouraging to see the careful consideration of domestic abuse as an issue in this case. The issue was dealt with head-on by the judge and was considered at every part of the decision-making process and in great detail. One of the issues raised by those calling for an inquiry into the treatment of domestic abuse in the Family Court is that “Both survivors and perpetrators spend too long waiting for support or change programs. This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.” In this case, had the judge sanctioned the local authority’s plan that the child should be adopted, then clearly the child would have been denied the chance to have that safe relationship and so the decision seems to be positive. However, the judgment may still be of concern to those who think that the judiciary need training to better understand the nuances and subtleties of abuse, as the judge had ended up disagreeing with the experts in the case about the significance or otherwise of recent incidents, as is in the ambit of his discretion – and, on one view, left the child in the care of an abusive and risky parent.
CommentIt’s encouraging to see the careful consideration of domestic abuse as an issue in this case. The issue was dealt with head-on by the judge and was considered at every part of the decision-making process and in great detail. One of the issues raised by those calling for an inquiry into the treatment of domestic abuse in the Family Court is that “Both survivors and perpetrators spend too long waiting for support or change programs. This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.” In this case, had the judge sanctioned the local authority’s plan that the child should be adopted, then clearly the child would have been denied the chance to have that safe relationship and so the decision seems to be positive. However, the judgment may still be of concern to those who think that the judiciary need training to better understand the nuances and subtleties of abuse, as the judge had ended up disagreeing with the experts in the case about the significance or otherwise of recent incidents, as is in the ambit of his discretion – and, on one view, left the child in the care of an abusive and risky parent.
Re N (Children)  EWCA Civ 903
This was a private law case between the parents of two children. The proceedings had been ongoing for around five years. After separation, the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. The father had pleaded guilty to an offence of harassment (sending abusive text messages to the mother).
A final child arrangements order was made that the children live with the mother and have overnight and holiday contact with the father. As the judgment relates to the appeal proceedings, there is little said about the court’s consideration of domestic abuse in reaching this decision, save it says that “…despite a number of court findings critical of the father, the evidence broadly suggests that the children enjoy and benefit from contact with him”.
The father later alleged that the mother’s partner had physically harmed the children and the local authority carried out an investigation but found no evidence of physical abuse. Meanwhile, the mother applied for a variation of the contact and the father’s contact was subsequently confined to visiting supervised contact. It is unclear from the judgment why she took this stance but the matter was listed for four days before a circuit judge and with a guardian appointed to represent the children, so it may be assumed that her reasons were serious. It seems likely too that the mother was alleging further domestic abuse of some sort as the final order made was for the children to have only supervised contact with the father and both a non-molestation order and prohibited steps order were made against the father too. It’s a shame we are having to rely upon assumptions here.
The father was granted permission to appeal this decision. The appeal was dismissed but the judge gave further case management directions concerning the issue of contact following the parties’ agreement to undergo a psychological assessment.
The psychologist’s report concluded that, in respect of the father, there was compelling evidence that during times of stress, and in particular when he felt slighted or wronged, the father has reacted with overwhelming levels of dysregulated emotion resulting in aggression and damage to property. There was extensive evidence of longstanding difficulties in anger management, volatility and aggression with dramatic acts and threats of self-harm. These were not thought to be indicative of an acute mental illness but essentially maladaptive coping strategies and other personality traits of fluctuating mood, wilfulness, egocentrism, and lack of remorse. The psychologist recommended that the father should consider treatment in the form of psychotherapy – either dialectical behaviour therapy or cognitive analytical therapy.
There was a directions hearing that the father did not attend. He filed a position statement asking the court to identify all the relevant information about the types of therapy recommended and once he has this information, arrangements will be made for him to undergo the necessary therapy, so unsupervised contact can take place. The hearing proceeded in the father’s absence. The judge expressed doubts about the prospect of the father engaging with therapy and expressed confidence that the mother would be able to manage contact in future. At the conclusion of the evidence heard, the judge handed “an element of discretion” to the mother’s counsel and solicitor for the guardian as to what would be included in the final order. He indicated he would not be ordering the father to do the therapy required as he considered that this was something he needed to do for himself and not because the court said so. Surprisingly, the judge then went onto say that he was going to make an order under s91(14) CA 1989 to prevent the case coming back without first making a permission application to him. The order was made against both parents for two years and to prevent them bringing any further application for a child arrangements order without permission as the court process was “ratcheting up the emotional anti”. The judge gave the father liberty to apply to vary the terms of this order.
The father applied to vary the order. He also undertook a course of psychotherapy with a psychologist qualified in various therapies, including those recommended. The psychologist’s report concluded that after 10 sessions of therapy she found no evidence that the father suffered from emotional distress outside the context of missing his children and frustration with the legal system.
The hearing of the father’s application took place and the mother was neither present nor represented. The judge did not have any papers from the proceedings and only had a copy of the order and a document/s from the psychologist. He considered the quality of the analysis in the report to be very poor. The judge seemed to recall that the previous hearing had resolved by agreement (this was wrong) and that the purpose of making the order under s91(14) was to “provide the mother and children with a period of respite from the intense and corrosive litigation”. He summarily dismissed the father’s application, stating that the psychologist’s report “provides no evidential basis which justifies re-opening the litigation at this stage”.
The father then appealed. The Court of Appeal allowed the appeal. The court confirmed that s91(14) orders should be made sparingly and they significantly impact upon a party’s ability to access justice. The court must be satisfied that the parties affected are fully aware that the court is dealing with an application and is considering making such an order, understand the meaning and effect of such an order, have full knowledge of the evidential basis on which such an order is sought, and have a proper opportunity to make representations. Further, it is even more critical to ensure that these requirements are observed when the affected party is unrepresented. These requirements were not complied with and the judge below seemed to mistakenly treat the hearing as permission to apply under the s91(14) order.
Unfortunately, due to the judgment being an appeal judgment the background information is incomplete – for example, we do not know whether any incidences of domestic abuse were alleged and/or found as part of the first set of the proceedings or whether the court was just working with the conviction of harassment for sending abusive messages. It may be reasonable to think not, as the mother did not seem to get the non-molestation order applied for and it was ordered that the father would have unsupervised contact with the children, including overnight. However, it might also be the case that allegations were raised but a fact-finding hearing was determined not to be necessary. This would be worrying if so, if the context was that something sufficiently serious happened soon after the decision was made which justified the mother requiring the contact to be supervised only four months after the final order. Without further detail, it is not possible to scrutinise this any further save to say that it raises concerns about whether proper thought was given to whether the order made would expose the children and/or the mother to an unmanageable risk of harm. The comment that the judge was confident that the mother would be able to manage contact in the future rings alarm bells. It may, of course, be that what happened subsequently simply could not have been predicted or expected and therefore protected against. It is right to acknowledge that inevitably the court making the decision will have had far more information than we have available to interpret, and so caution is required. The appeal judgment does not disclose any attempt by the mother to have appeal the decisions made (on the grounds that orders were not safe or did not comply with PD12J or otherwise)
What this snapshot review has demonstrated is that it is incredibly difficult to see what is happening on the ground by surveying reported cases only, because there is, understandably, a lack of detail in appellate judgments about how decisions were reached in the lower courts – and in private law cases it is typically only appeal judgments that are publicly available, in spite of guidance that suggests otherwise. However in two of the three cases I have looked at contact was ordered and then within a period of only four to six months the matter was back to court to suspend or drastically change the arrangements which does, possibly, raise a question as to whether the issue of domestic abuse was properly dealt with first time round. The suggestion of those in support of an independent inquiry that there should be a “robust recording of decision making” made by judges which are then collated by an appointed court recording officer “so that we can begin to assess the scale of the problem and so understand how we must deal with it” therefore seems entirely sensible.
One of the areas to be covered by the Ministry of Justice’s recently announced ‘spotlight’ review of the family court’s handling of domestic abuse is s91(14) ‘barring orders’, and of course the application of PD12J more generally is also due to be considered. At the time of writing there is no further information about who will be on the review panel or how it will conduct its business. See ‘Spotlight’ on Family Courts announced – but is it enough?.
Feature pic : Stephanie Lepoint on Flickr (creative commons – thanks)