The Transparency Project was pleased to receive an invitation to this seminar hosted by Rights of Women, which took place on 3rd September in London. I popped along on their behalf.

Dashed hopes 

My hope was that we might glean something of the progress and research base of the Government-led spotlight review into how family courts treat domestic abuse and whether guidance (Practice Direction 12J) is working. Perhaps even some clarity about how that will integrate with other things also underway – on PD12J itself, and on wider reform of the private law family court ‘system’.  

Rosemary Hunter, Professor of Law and Socio-legal Studies at the University of Kent, is the one common element to the three major current work strands:

  • She is one of three academic experts to the Government-led ‘Spotlight Review’ into how family courts deal with allegations of domestic & other abuse, including PD12J
  • She is the only academic member to the Family Justice Council* looking to capture best practice on implementing PD 12J, within a wider remit of practice guidance on cases involving domestic abuse
  • She is also the sole academic member of the President’s Private Law Working Group, due to make concrete proposals in autumn about wider reform of the private law family courts following an ongoing consultation / interim report.

Mr Justice Cobb is the other work-stream straddler. He chairs the working group charged with reforming the private family courts and sits on the advisory panel to the government Spotlight review. 

In fact my hopes were quickly dashed. Hunter was not to be drawn on any of those work strands or their integration. She was there to talk about her own view that we need to take a step back, in order to effectively tackle problems with how the private law family courts deal with domestic abuse / operate PD12J – by analysing the ideologies underpinning the recent direction of travel for private law reform, two in particular.

More on this theory below, but first a few other points of interest to us, and (we think) some of those who read our blog posts.

The research base for reviewing the way the family courts treat domestic abuse and operate PD12J

Of particular interest to the Transparency Project was confirmation that Professor Hunter shares the view that ‘systematic’ research about how PD12J is operating across the family courts now is ‘outstanding’ (i.e. absent rather than brilliant). The Transparency Project have written about that here. She was equally clear that this is the currently accepted view. 

Nevertheless, she and others consider that, notwithstanding that deficit, it’s reasonable, necessary even, to crack on anyway. The thinking behind this position wasn’t articulated but seems to extend beyond pragmatism to the assumption that we know enough to go forward. 

Hunter told us that the barrier to outstanding systematic research is funding, particularly in light of the size of the research task required. 

We asked what that outstanding systematic research base would look like if it could be funded in future. She identified the following key research questions:

  • How often are finding of fact hearings being held?
  • How often are alleged victims of abuse being cross-examined by their perpetrators? 
  • How many decisions are being made by consent rather than adjudicated on? 

And made the following helpful observations:

  • Family court datasets currently have no markers for domestic abuse. As such the systematic research needed would require a large file sample across England and Wales. This is a very big research task;
  • With the Nuffield Observatory focused on public law and the current financial and political climate affecting the MOJ, there doesn’t appear to be any appetite for funding this from any quarter;
  • The Spotlight Review itself (with a wider remit) couldn’t possibly do that research within their narrow three month window, as she and others have rightly identified from the outset.

Back to Professor Hunter’s ‘ideologies analysis’

(Disclaimer: This is far from a verbatim account. Rather it represents my best attempt to explain Hunter’s analysis as I understood it at the time, from my hand-written notes.)

Professor Hunter reminded us that private law was ‘cooking away’ at the moment. 

In her view, we should take a step back to reconsider the direction of travel in respect of domestic abuse, with reference to two dominant ideologies that have underpinned the last 10 years of reform of the private family law courts and continue to do so:

  • That children’s welfare is best served by ongoing contact with both parents; and
  • That after separation it’s better for parents to sort out their own arrangements without the court being involved (the idea of the ‘good post-separation’ parents, if you will).

(Hunter defined an ‘ideology’ as an idea that serves powerful interests, takes on the mantle of ‘common sense’ and won’t be easily, if at all, dislodged by facts or evidence).

(1) Children’s welfare is best served by ongoing contact with both parents

Hunter argued that following the Family Justice Review, the passage of the Children and Families Act 2014 codified this ideology (previously rooted only in case law) into statute – with really significant consequences for domestic abuse. (Albeit that Parliament ultimately rejected lobbying to extend the ideology of parental ‘involvement’ still further to a presumption of 50/50 care.)

Meanwhile, with respect to the caveat being carved out alongside – ‘but not where there’s significant domestic abuse’, the Court of Appeal specifically rejected the idea that this creates a presumption or that domestic abuse should of itself be a bar to contact. Instead findings of fact should be made, and harm weighed up as one factor in the welfare checklist balance.

The effect was to make domestic abuse cases an exception to a general rule, applicable only once established.

Research tells us PD12J isn’t being implemented properly, with finding of fact hearings rarely taking place and contact being ordered even where findings are made says Hunter. [Note: She didn’t specify this research but if we’ve understood her right she acknowledges that such research as there is falls short of the sort of systematic research she and others would want to see. See also the Transparency Project’s summary of the existing research base here.]

Practice Direction 12 J, Hunter argued, was a consequence of making domestic abuse cases an exception to a general rule, applicable only if established. Despite three revisions (one substantive) it’s unsurprising, she said, if we are still finding that domestic abuse is ignored and PD12J improperly implemented. PD12J is fundamentally undermined by its underpinning ideology.

Dis-applying the starting presumption (of contact with both parents) requires a high threshold. It’s necessary to show something quite serious to a court even to successfully invoke application of PD12J. This is exacerbated further by resource problems, high numbers of litigants in person as a result of legal aid changes, and other such systemic drivers.

A consistent response to the claim that PD12J is patchily implemented at best, is the lack of a systematic evidence base but the absence of an evidence base, says Hunter, is no coincidence. It’s been impossible to get funded to do that systematic work.

She also flagged a huge missed opportunity to incorporate family courts into the overall policy strategy for ending violence against women and girls, or even into (now on hold) legislation in the form of the Domestic Abuse Bill.

Hunter also commented briefly on what she sees as a rise in use of ‘parental alienation’ as a counter argument in back-lash to moves to improve how domestic abuse is tackled. She noted that a recent Cardiff University review of research and case law on parental alienation to guide Cafcass Cymru practice, that had documented a lack of evidence base for parental alienation, hadn’t been taken up by Cafcass England who had instead contextualised PA within their own new Child Impact Assessment Framework (CIAF) [Note: Julie Doughty, Trustee of the Transparency Project led the Wales research]

(2) After separation, it’s better for parents to sort out their own arrangements without the court being involved (private law cases shouldn’t be in court at all).

Hunter saw this as a logical corollary to the first premise. The whole underpinning ideology of the private law chapter of the Family Justice Review Report was about not involving the courts, from Mediation Information & Assessment Meetings (MIAMS) to Separated Families Information Programmes (SPIF’s). Promised gate-keeping never materialised, perhaps due to lack of funding but MIAMS were put on statutory footing. We got the Child Arrangements Programme (CAP) with its focus on rationing court time, and gate keeping as to track and MIAM-compliance instead. The court’s capacity to make orders and test them out with adjournments ended with new case management expectations. Then this very ideology provided the rationale for the government to remove private law cases wholesale from the scope of legal aid, subject to establishing an exception, such as for domestic abuse.

The only research funded in a private law context recently has been out of court dispute resolution (which actually showed that mediation was far from a panacea, and that LASPOA had not succeeded in reducing demand for private law litigation).

Hunter questioned claims featured in the President’s key note speech to Resolution of a 38% rise in couples going to court over child arrangements, based on statistics from Cafcass. She suggested that claims of a dramatic rise in private law applications (also s.7 reports and Guardian appointments) only really held water by viewing the 2014 onwards statistics in isolation. When seen in the context of earlier figures, it’s clear the 2018 figures are still actually lower than 2013/2014 highs. See slide 5 below. [See also Kelly Reeve’s discussion of these figures for the Transparency Project here]

Hunter also questioned assumptions that lack of public education and inadequate compulsion to mediate lie behind choosing court over mediation. What if the high numbers of returners reflect initial court decisions that weren’t good enough, were wrong or unsafe? What if cases where the presumption of the involvement of both parents shouldn’t apply are the norm not the exception for this group?

Professor Hunter’s conclusion

Effectively countering these ideologies shouldn’t entail battling to dis-apply a presumption, show that PD12J should apply, or evidence entitlement to legal aid as an exception, concluded Hunter. Rather, the ideologies must be tackled head on; their contradictions exposed, including by more joined-up thinking. There are contradictions such as women being told (even by the same social worker) to leave and stop contact in a public law context but thereafter to support and promote contact with proven perpetrators, or be seen as harming their children in a private law context. Or leaving the family courts operating in splendid isolation outside of wider public policy and intended legislation.

We need to re-conceive the family courts within the wider society they are designed to serve, as just one tool for tackling child abuse and neglect, domestic abuse and relationship breakdown, says Hunter.

The idea of the Separated Families Alliance [Note – See Annex 6 Interim report private law working group] is one positive step in that direction – locating and thinking within other services.

Private law relationship breakdown cases represent the seriously problematic end of a parenting spectrum. Yet the ideologies we are applying to them are applicable to the other end of that spectrum, who don’t need the family court. Those ideologies just don’t work for the problematic end of the spectrum ending up in court. And as long as we stay stuck thinking within those ideologies any reform is simply likely to be more of the same.

Comment

Professor Hunter’s ask – that we consider taking a step back to re-frame the attempt to improve how the family courts deal with domestic abuse / operate PD12J, within a wider analysis of underpinning ideology, was thought provoking. Our thanks also to Hunter and Rights of Women for providing her supporting slides for publication here alongside our observations of her insights, for those interested in thinking further on the subject:

Hunter’s insights on the research base were illuminating. 

Her suggestion that there has been a profoundly unhelpful failure to locate and integrate reform of the family courts within the wider policy strand of the wider government strategy or even the (now fallen) Domestic Abuse Bill, was compelling. 

I heard nothing to reassure me that integration and coordination of the various work streams is underway.  

I can’t help but continue to wonder how the ‘Spotlight Review’ can be much more than posturing to quell populist lobbying (warranted or otherwise), with neither a systematic research base nor integration with national policy or legislation, nor even integration with other family court reform work strands. I wonder too whether the endeavour of the Family Justice Council to harness and disseminate best practice in implementing PD12J may also be operating in the dark. 

* The Family Justice Council (FJC) is a non-statutory inter-disciplinary advisory body sponsored by the Ministry of Justice. It is responsible for advising Government on the operation of the family justice system and for making proposals for reform and improvement. 

Image – Serpentine in Palma de Mallorca by Marco Verch at Flickr with thanks: https://creativecommons.org/licenses/by/2.0/