The question of how the family court deals with domestic abuse has had a huge amount of public and media attention recently. Concerns have been raised that the system is placing children and victims at unacceptable risk and that there is a ‘culture of contact at all costs’. Campaigners, including survivors and MPs, have described a disconnect between Practice Directions / best practice guidelines and what actually happens in practice at courts around the country. A government led review and ‘call for evidence‘ (limited to ‘private’ law cases) is currently underway.
A ‘snapshot’ look at recent published judgments featuring domestic abuse seemed timely, looking at the decisions made and how they were reached. (Since we are looking at published judgments, the majority of the cases are care proceedings rather than ‘private law’ disputes between parents, which are less often published). Earlier blogs in this ‘snapshot’ series can be read here, here, here, here and here.
This is a judgment from care proceedings brought in the wake of a tragic and abhorrent murder of the mother of two children, by their father (possibly witnessed by one of them). It’s upsetting and some may prefer not to read it.
An unnamed Local Authority (LA) applied for care orders in respect of A (aged 7) and B (aged 5) in accordance with guidance to local authorities where one parent kills another. In order to take control of the planning about where the children should live, who they should see, and what they should be told in the future, under the scrutiny of a High Court Judge.
Since the children could not be cared for by either parent, they were placed in foster care while careful assessments of those family members who sought to care for them were completed. Both their maternal grandmother (MGM) and their paternal aunt (PA) put themselves forward to care for the children (the former under a care order and the latter by way of a Special Guardianship Order). Each were maintaining their applications by the final hearing. The LA recommended that the MGM should care long term for the children in preference to the paternal aunt and also sought an order to prevent the father from having any contact with the children.
The Local Authority sought to rely on the murder conviction and other aspects of the criminal proceedings to satisfy the ‘gateway’ legal “threshold” (for state intervention into family life by way of care and supervision orders). The threshold wording is not set out here but is in the judgment at paragraph 33.
The father accepted the factual account set out but maintained that he did not intend to kill the mother (he said he would try to appeal his conviction when possible). The Judge therefore had to consider how to treat the conviction, the constituent factual elements of the conviction and other factual matters which initially the prosecution – and then the Local Authority in the family proceedings – sought to rely on.
The Judge explained that because the father had been convicted in criminal proceedings for murder, the appropriate test was that in the family proceedings he should be taken to have committed that offence unless the contrary is proved. So, whilst he maintained that he did not intend to kill the mother, he did not seek to positively argue against the decision and the Judge concluded that she was bound to find that he intended to kill or cause serious harm to the mother because the offence of murder requires this. This is the so-called principle of issue estoppel (explained more fully at paras 12-21 of the judgment).
As a decision in criminal proceedings is just “guilty” or “not guilty”, the Judge did not know what the jury thought about the evidence they heard and therefore which parts of it could be relied on in the children proceedings. The Judge thought about what to do with those “constituent factual elements of the conviction” – were they also to be accepted in the family proceedings like the headline of the conviction itself? She decided that the principle of issue estoppel must apply to the fundamental elements of the criminal conviction too because, in order for the jury to have decided that the father was guilty of murder, they had to find he intended to kill or cause very serious harm to the mother. Therefore, it followed that she must reject any suggestion that the father did not intend to harm her.
What about the criminal Judge’s sentencing remarks which the LA sought to rely on? She decided that as the Judge in criminal proceedings does not make the decision, any sentencing remarks made by that Judge could not just be accepted in the children proceedings like the conviction or offence elements, but that great weight should be attached to them. Examples of those powerful remarks are as follows:
“You could not let go of the Mother emotionally, you kept a close eye on other relationships which might be forming, on occasions interfering in order to frustrate her. What evidence showed clearly was that in the week before you killed her you became desperate to have her and, as it turned out, to ensure that no-one else could. [redacted for confidentiality] On [date redacted], as I find from the evidence of TL when you spent that evening with her, you told the Mother that you had been involved in a robbery and you would be going to prison for about two years, and asked that you be allowed to see as much of her and the children as possible before you did.[redactions here and throughout are the judge’s not ours]
That was a complete fabrication on your part. There had not been a robbery and there was no risk of your going to prison, but it achieved its purpose in that the Mother agreed to go with you and the children to a wildlife park for a family day out on that [date redacted], then join you and some friends at a local pub for a drink that evening, and finally to return with you and the children to your flat at about 8.00pm. Whether she had agreed to stay overnight is unclear, but she had brought with her a bag of personal items, such as make-up and the like. You both put the children to bed in a mattress in your bedroom and it was at some time between then and midnight that you strangled her to death with your hand or hands. You say she attacked you when you told her that you had lied about committing a robbery and going to prison and that you only put your hand around her neck to fend her off. You say that the scratch marks to your face which you undoubtedly sustained of course when she clawed at you with her fingernails, the pathologist said that they could either have been caused offensively in that way, but that such injuries are commonly the result of the victim trying to pull her assailant off. Once she was dead, you broke up her phone, moved the children into the sitting room and, at some point you undressed her and put the duvet over her, most likely to give the appearance that she may have died in her sleep. It is said that you took steps to prevent the children finding her body, but at around 2.15am you left them alone in the flat where her dead body lay while you went out to get some cash and buy some more cocaine.”
In particular the LA sought to rely on evidence that was presented to the jury by the prosecution about the father’s alleged controlling and jealous behaviour to the mother before her death. The Judge decided she was not bound by that evidence as presented, because she could not tell what role, if any, it played in the decision to convict i.e. whether the jury accepted it or gave it any weight. She decided that she needed to look at the evidence before her in respect of this and make her own findings on the degree to which the father had exercised controlling and abusive behaviour. For threshold and to inform the welfare decisions for the children, including the shared narrative going forward about the context of what had occurred, given the Father’s denials. The Judge said in relation to this:
“I should record here that in view of the father’s failure to accept any real responsibility for the mother’s death, and in view of his consistent portrayal of himself as the victim in the relationship, I do think this is a case where it is necessary for me to make detailed findings of fact about events earlier in the relationship. I fully appreciate what Sir James Munby, the then President, said in Re A (A Child)  EWFC 11 about findings of fact needing to be clear and based on evidence. However, in respect of some of the events referred to in the threshold document, there were only ever two witnesses – the mother and the father – and to put it somewhat brutally, the father has killed the mother. MGM’s written evidence was that the father had sought to control the mother throughout the relationship and had actively tried to cause problems between the mother and MGM, her mother. One of the witnesses at the criminal trial, Ms L, who was a friend of the mother’s, gave evidence that the mother had told her that the father had been controlling and aggressive to her both before and after the break-up. I have not heard this witness and the father’s evidence was that whatever physical violence occurred between the parents, it was the mother who was the instigator.
As I will set out in more detail below, the father showed an extreme lack of insight in his oral evidence and, in my view, lied to the court and to the criminal trial as to what happened on the night of the mother’s death. I therefore have little reason to accept his evidence about earlier events.
She made the following finding:
“In the light of all the evidence, I take the view, on the balance of probabilities, that he was controlling and abusive during the relationship, even before December 2016, but I do not make findings that he was physically violent to the mother at these earlier stages.”
Taking the above matters into account, she went on to make threshold findings that the father had been abusive, controlling, jealous and possessive. She noted that in his evidence, he appeared to take no responsibility for the mother’s death and still maintained a story that was not possible as it was wholly contrary to the forensic evidence. Because of this, she concluded that she struggled to see how the father would accept or be involved in creating a narrative for the children. She also determined that he was a long way off having anything other than minimal indirect contact with the children given his lack of acceptance of responsibility and his lack of insight into their needs.
Accordingly she made an order for no contact between the children and the father and for any future contact to be at the discretion of the LA.
When it comes to one parent making allegations of domestic abuse against the other in applications for contact, I am often asked by the bench / Judges: how is looking at these allegations going to help me with deciding the arrangements for the children? In my view, this case highlights the importance of allegations being properly explored and of careful consideration of the children’s best interests in doing so. Since there was no risk of continued abuse of a mother who had been tragically murdered here, it would have been easy for a Judge or representative to conclude that findings of coercive and controlling behaviour were not required since there was already a conviction for murder. Instead the local authority and Judge were alive to the need for findings in respect of controlling and coercive behaviour too, to decide the children’s welfare needs. To reach the right decision on whether the children should be placed with MGM or PA, on contact, and to inform the intended agreed narrative for the children going forward.
The Judge found PA’s evidence to be honest and straightforward. She told the court that she had not seen the problems in the parents’ marriage before the break-up, that she had been very close to the father as well as close to the mother and that it was extremely difficult for her and her sons to process what he had done. She said it was difficult to take in the fact that her brother, who she loved and had viewed as being kind and protective, had murdered his wife. There was a good deal of mention in court of the fact that PA – and she accepted this – lived her life in something of “a bubble”: in that she wants, and wanted, her family to be happy, and that sometimes did mean keeping out difficult or unpleasant aspects of life. The Judge found that this may have made coming to terms with the father’s crime more difficult, but it may also have made coming to terms with other parts of his behaviour, such as the drug taking and the abusive behaviour, also very difficult. The Judge noted that whilst all family members in the case were having to deal with their grief over the mother’s terrible death, the father’s family were also having to come to terms with the fact that their brother, son or uncle murdered his wife and this was a particularly hard thing to do when PA and most of the family had a positive view of the father up to the murder and (to varying degrees) still did. The Judge’s view was that if the children were placed within the environment of the paternal family, despite PA’s best efforts, it would be exceptionally hard for the children to have a consistent and comprehensible picture of what had happened. The Judge formed the impression that different members of the paternal family were at different stages of coming to terms with the murder. PA, for example was only beginning to see the full picture of the father’s actions. She, and the whole family, were not only having to come to terms with the fact the father murdered the mother, but also his behaviour before i.e. the controlling and abusive behaviour that was found by the Judge in the family case. In the circumstances, she was clear that the children were best placed with MGM. Thus, the findings made were central to the main welfare decision for the children.
It’s perhaps also worth noting the importance of the Judge’s discretion to give greater weight to some evidence than that of others (even that of experts) where warranted in making the right welfare decision for the children. The Judge here departed from expert evidence of GOSH practitioners consulted by the SW (who had expressed what she considered to be a vague and procedurally unsatisfactory preference for placement with the PA over MGM). Mrs Justice Lieven rejected their reasons in favour of the evidence of the MGM, the allocated SW who knew the children, and the Guardian, as well as conclusions she drew herself about the impact living with the paternal family would be likely to have on the children long term (paras 83-88):
There is a much better prospect, in my view, of the children being able to understand what happened, but have some positive memories and thoughts about their father if they live with MGM than to understand and have positive memories of their mother if they live with PA in the midst of the paternal family. No amount of Social Work or professional support can overcome those issues.
Two other judicial observations are of general interest (beyond the matter of how the family courts treat domestic abuse). We simply set them out below:
I want to say specifically to both MGM and PA – that they have both greatly impressed me through this hearing, by their conduct throughout must have been an incredibly difficult process for them. Litigation has an inevitable tendency to make those involved more adversarial, but I am happy to say that in this case, MGM and PA have used the hearings to speak to each other, spend time together and talk about how in the future they can support contact with each other. It has been completely obvious to me that both of them only want what is best for the children and will do their utmost to work together in the future for the children. The children are lucky – at least in this respect – that they have two adults who both want to love them and look after them and who I know will help them in the future.
I would like to record that the Local Authority in this case have, in my view, acted in an exemplary manner. In Re A and B (One Parent Killed by the Other)  EWHC 3824, Hogg J set out what process a Local Authority should follow when one parent kills another. The Local Authority has followed this advice; has put in place appropriate resources; and has supported the children, in my view, very well in the most difficult of circumstances. Ms A the allocated Social Worker, has not just been an excellent witness, with very clear written and oral evidence, but has also clearly been an enormous help to the children. Her commitment to the children has been truly admirable and I am going to send these introductory comments to the relevant judges in [geographic area redacted] as I think it is important that when a court thinks that local authorities and individual social workers have done a very good job, this is drawn attention to within the family justice system, and not just when the court criticises local authorities and social workers, as sadly it sometimes has to do.
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