I’m on holiday in Greece when I hear about a case involving a mother who has taken her children some 10 hours travel-time from the family home, without their father’s knowledge or consent. It’s a case that involves allegations of domestic abuse, a father who admits he has deceived the mother about his HIV status for years and as a result is currently subject to a police investigation with a possible charge of GBH to come, and finally, a court order made by a district judge three days previously compelling the mother to swiftly return the children to their home city – or have residence of the children summarily transferred to the father.
By the time I grasp that there’s to be a hearing where the mother will ask permission to appeal the district judge’s order, it’s just 25 minutes until it’s listed to start. I ask who the judge will be; I’m told it’s the designated family judge His Honour Judge Martin Dancey, who is based in Bournemouth.
There’s so little time to contact the court that I decide to email the judge directly to ask for a login – it’s lucky I know the format for circuit judges’ emails, or this would not have been possible. In case he’s busy and doesn’t see it, I also ring the court’s ‘family’ line just in case I can find someone; I know it’s often very hard to get through as court offices are typically understaffed and overworked. But there’s a snag. The person I get through to says she is not familiar with the concept of journalists attending private family hearings. Internally, I sigh. Then I explain that we are entitled to attend, and have been for 12 years. She will need to check with her manager, she says. It’s 20 minutes till the hearing starts when I put down the phone. I’m not convinced I’ll be able to get in.
But then – ping. An email arrives from the judge. He says my attendance is fine with him, but he is just checking with the parties as to their position. I open my laptop, ready my notebook (on holiday, I know, it’s sad, but me and my notebook are joined at the spiral binder), and then, ping again. It’s a second email from the judge giving me the Microsoft Teams link. He’s not heard back from the parents’ barristers, but will deal with any submissions as to my attendance when the hearing begins.
Except that I don’t think MS Teams works when you’re trying to get into the UK court system from Greece. At least, it didn’t for me. I log in, and think I’m in the meeting, but a couple of emails makes it clear that the judge can’t admit me. We fiddle around with the technology from Bournemouth and Greece, and I nearly despair, but then… I remember that ancient technology, the actual telephone. I dial in, and bingo, I’m through. There are only three voices – the judge and two barristers – so while not ideal, it’s actually perfectly possible to follow what’s going on.
Everyone has been very patient waiting for me. It’s delayed the hearing a few minutes, and I know that the prospect of me attending has also been visited very abruptly on the mother and father involved. So I am relieved when no objections are made to me staying in the hearing, and grateful to the judge; he reacted fast and proactively to my request to attend, at a point when I’m sure he had plenty of other stuff to be thinking about in relation to a hearing that was going to be extremely important to this mother, father and their children.
This turned out to be a hearing in two parts, so I’m going to split this blogpost up to reflect the permission to appeal application section of it, and then the subsequent appeal hearing – from which it can be gathered that permission to appeal was granted.
A quick tip in case any journalists or legal bloggers are reading this: when I attend hearings, I now take both a continuous touch-typed note, and about half way through, I set a separate document up in which I write a series of bullet points setting out the things that I want to report.
At the end of the hearing, I ask permission to report those bullet points, having usually emailed them to the judge. Judges – or, for high court judges, their clerks – are I have found, very across their emails, and it’s a reliable way of both alerting them to the fact I will want to make an oral application, and also means they can forward on my bullet points to counsel, so that everyone has my request in writing in front of them. I think – hope – this is helpful, because it’s much easier to refer to a written list than it is for everyone to madly take notes if I ask orally at the end. It also gives me reassurance that I have a record of what I’ve asked for, and can make notes as to what the judge decides I can and can’t report.
In this case, I made my bullet pointed list for the permission to appeal aspect of the hearing, but in the afternoon session, when the appeal arguments were actually heard, I soon realised I was going to ask to report generally on the whole of that hearing, only excluding certain identifying factors. I wanted more freedom to report than a bullet-pointed list would have given me.
The application for permission to appeal
First, some facts:
- The hearing was about an order that had been made earlier in the week by a district judge.
- A mother who is now living in a refuge with her children was ordered to return them to their previous family home in the south of England, by 4pm the day before. She had not done so. The mother said the order should be overturned, and at the time of the hearing, it was subject to a stay.
- The mother was alleging domestic abuse. The father was denying it and said the mother’s action in abruptly leaving the family home and taking the children some 10 hours travel distance away was “disproportionate and irrational” given that he had previously lived in the family home with the children.
- The children, who had previously lived with their father and mother in the family home, had not seen their father for approaching three months.
- Some of the allegations of domestic abuse were not very specific, and so the judge took an investigative and methodical approach to finding out more about what the mother said had happened, and in trying to work out a timeline. The conjoined domestic abuse appeal in front of the President of the Family Division and Lady Justice King – Re H-N – and Mr Justice Hayden’s judgment on domestic abuse allegations that was published immediately before that appeal, F v M, were referred to frequently during this part of the hearing by both HHJ Judge Dancey and the mother’s counsel, Patrick Goodings.
- There was considerable discussion by the mother’s counsel as to the need to invoke and engage with Practice Direction 12J when a judge considers allegations of domestic abuse. Practice Direction 12 is the guidance (it’s a direction, so it must be followed, if relevant) which sets out how a court must approach allegations of domestic abuse, in terms of how to treat complainants, considerations that must be given to assessing safe contact for children, and, importantly, the effect of facilitating ongoing contact on a victim, if DA is proved).
- Essentially, the mother’s counsel was saying that the district judge had not properly considered or applied PD12J before making his order, as he was bound to do.
- In this hearing, Judge Dancey observed that it is not enough simply to state in a generalised way that allegations of domestic abuse have been made and therefore PD12J is engaged. He said it was important for the court to know in enough detail what the allegations are, so it can take a view as to how and to what extent PD12J is engaged. To illustrate this, I’m going to use a quote from the judge which I think explains this quite well, and makes sense to me: He said: “One of the concerns I have is that while respecting victims of domestic abuse and clearly knowing that victims do not come out with a nice neat story because they are inevitably impacted by their experiences, if she says to Cafcass that ‘I think he might kill me’, I need to know what is giving rise to that fear.”
- At the end of the hearing, various options were offered to the parties. The judge offered to keep the stay on the order till a hearing with him the following week. Another option canvassed was for the father to move out of the family home, the mother to move back immediately with the children, pending another hearing next week, possibly with protective orders put in place to reassure her and ensure everyone’s safety. Remember, at this point, no fact finding had been carried out, so – apart from the admitted, and I would say extremely serious abuse of years worth of deception around the father’s HIV positive status – no other domestic abuse allegations had been proved.
- The hearing was briefly adjourned for the mother and father to consider those options, and to instruct their counsel.
- Comment: There was a pronounced investigatory flavour to this hearing, in which HHJ Dancey had to decide what to do next in what the now published judgment will show was not an obviously clear cut situation. He asked lots of questions to try to tease out more precisely what the mother was saying had happened both over the course of the relationship, and in the run up to her deciding to leave the family home with the children.
At the end of the day in court, I asked for permission to report the whole afternoon session, rather than just a series of bullet points as I had done for the morning session. I suggested – by email to the judge, who forwarded my email to the parties’s counsel – that I could exclude a number of identifying factors (I was more conservative in what I offered to exclude, than, it turns out, the judge opted to be in his judgment).
I was in no rush for a decision, and so the judge asked counsel to take instructions from their clients, email him any short arguments overnight, and he would decide on my application by Monday 4 October. In fact, I received the judge’s permission to report subject to generalised restrictions by 9.21am on Saturday 2 October. That, in my experience of asking to report the details of a whole hearing, rather than just certain facts from it, is fast.
I’ll set out the basis of the permission, so you can see what I am bound by (interestingly, it offers me an element of discretion – I need to decide what might be “identifying”. This is quite scary! And as I pointed out above, I was more conservative in what I suggested as possible restrictions than the judge has been in his judgment. Now that’s published, I could, I think, safely follow his lead, but have chosen not to, because I’d then need to go back and add more detail into this blogpost, which is already looooong).
So: I was allowed to publish under restrictions imposed by rule 30.12A(3), which relate to an appeal court’s power to order that hearing of an appeal be held in public. The specific sections of the rule the judge imposed were (a) and (b), and he helpfully put in bold the specific elements he wanted me to follow. The meant I could not identify:
(i)any party(ii)any child (whether or not a party);(iii)any witness; or(iv)any other person;
I was also prohibited from:
(b) the publication of any information which may lead to any such person being identified;
Back to the appeal.
The options the judge had put on the table in the morning hearing were not acceptable to the mother, though the father, it emerged later in the hearing, had agreed to move out of the family home to accommodate her and the children should she agree to move home.
HHJ Dancey gave permission to appeal. Then, ever so suddenly, the appeal was on, and the mother’s counsel was invited to start his submissions. I was a bit startled. The appeals I’ve been familiar with have happened after long lead ups, and have been in the high court or court of appeal.
As I was listening, I was also starting to formulate the question in my mind as to whether the fact that this was appeal was meant it was in public. Did I need to ask permission to report, or, subject to anonymisation, was I allowed to do so as of right? Appeals I had previously engaged with or been involved with, in the high court or above, have been held in public and therefore no permission is needed to report (anonymously) the detail of what is said. However, I was still trying to process the facts of the case – at that time I had no skeleton arguments to refer to, though the judge very courteously arranged that for me, and none of the parties objected, so I do now have them – as the mother’s counsel was speaking. (At the end of the hearing, I asked the question, and careful reference was made by judge and counsel to the rules. It turned out that appeals from a district judge’s decision being heard by a circuit judge were held in private, subject to any decision otherwise by the judge).
HHJ Dancey had previously acknowledged, in the morning session, that it is hard for a journalist without access to the case documents to follow what is going on, and explained some of the background for my benefit as he asked each question of the mother’s counsel. This was incredibly helpful.
I should note at this point that HHJ Dancey explained at some point in the hearing that he had never yet had a journalist attend a case in his court; I am aware therefore that he was both having to deal with an unfamiliar courtroom dynamic, in a remote hearing situation, and apply rules on attendance and reporting that he had never before needed to refer to in practice – and all with just a few minutes notice. I want to emphasise that this is no small thing, because while everyone seems to think judges are all-powerful, I know from having talked informally to many that there is a genuinely felt anxiousness around getting media attendance and reporting restrictions right, while protecting parties who are the court’s central concern. Meanwhile, HHJ Dancey was also clearly familiar with my Court of Appeal challenge to an unlawful reporting restriction order made by a fellow Designated Family Judge at the nearby Portsmouth family court: that judge had had plenty of notice of the media’s wish to report, and he had still got things wrong. In this case, my very late application to attend meant that HHJ Dancey was operating on the hoof, in an appeal situation, and he did so courteously and quickly and was actively helpful to me throughout (and has indeed been afterwards). It was an absolute model of how to deal with media attendance and applications to report, and I am incredibly grateful.
I would normally describe the arguments made in an appeal in reasonable detail in this sort of blog, but in this case, HHJ Dancey said he was going to publish a judgment, and swiftly. The judgment (link again here) sets out in a lot of detail the arguments advanced on both sides, and I don’t see any need to rehearse them.
Instead, what I’m going to do is set out a particular moment in the appeal that really disturbed me, and has had me chewing over it since. I want to do this carefully, so as to be fair to the judge, who was, I felt, completely courteous to the parties, and careful and considered in how he addressed all the issues being raised in the appeal. I’ve wrestled with how to describe this, because I don’t want people to jump on the words and brandish them as definitive evidence of something awful having happened. But I think it’s very much worth a look at, hopefully as a prompt for discussion. Also, to check my understanding of what was happening at that point in the hearing, I decided to ask an experienced family barrister for his thoughts. His response, some of which I’ve included below (with his permission) has been very instructive.
If what the barrister says is right, it shows an absolute gulf in understanding of how words might well be felt by a victim of rape and domestic abuse, and what may have been intended by the judge in charge of deciding that mother’s and her children’s future. For me, a particular edge was given to his words because of the fact they were uttered on the day that Wayne Couzens was given a whole life sentence for the abduction, rape and murder of Sarah Everard, and the issue of male authority’s power over and, in that case, violence towards women was at the absolute forefront of everyone’s minds.
Right, caveats over, here goes. This is what, at a certain point in the hearing, HHJ Dancey said, as close to verbatim as my touch typing was able to achieve:
“I’ve had one case of completely fabricated domestic abuse, and what struck me is how easy it is to completely fabricate allegations of domestic abuse – victims have contacted the agencies, and made the reports, in order to achieve an objective. The objective may be to get rid of the father from the children’s lives. It may be relating to immigration status. I’m not saying that is this case, let me be absolutely clear, but the courts are alive to, just as we are alive to the need to protect the victims of DA, in a very small proportion of cases it’s used to achieve an agenda. I say that knowing that Ms Tickle is listening to this, but it’s a fact of life I’m afraid, but there’s a danger that we swing the pendulum too far, saying that the courts don’t protect victims of DA, so we have to be sophisticated about it. And that’s the reason for the fact find.”
So. My thoughts run as follows:
Whatever the intention behind such comments, it is really invidious, traumatising and wrong for a judge to state, in front of anyone making allegations – and perhaps most particularly at this moment, to a woman making allegations of DA and repeated rapes – that women make these things up. Remember, in this case, this father has accepted he knowingly had unprotected sex with this mother for years and deceived her as to his HIV positive status. The deception continued through out the period of the birth of their children. In most people’s eyes, this is abusive per se. Indeed, in his judgment, HHJ Dancey referred to, and agreed with, the comments of a Recorder who had overseen an earlier hearing in this case, who characterised it as a “horrendous deception”. To deliberately infect someone with a sexually transmitted disease is a crime, and as the judgment points out, is listed on government websites as domestic abuse.
To someone who is a victim of such abuse, it strikes me that a judge uttering these words might well feel precisely akin to what would be felt by a rape victim standing in front of police officers, saying they’ve been raped and asking for help and protection, and the officers, in a position of power over what happens next, saying, ‘you know what, I worked on a case once where a woman fabricated a rape… not all women do that, don’t get me wrong, but this one woman did, once…’.
In more detail, these are the ways in which I think what the judge said was wrong – I’m also going to set out what the barrister said to me when I asked his view:
Me – It’s irrelevant. What happened in one case that HHJ Dancey dealt with has nothing at all to do with this woman’s allegations. Even if every case he’d ever dealt with had been made up, that still has nothing to do with this particular case.
The barrister – who had by this stage read the judgment – pointed me to two sections of what the judge set out:
74) In his oral submissions [the barrister for the father] pointed to the need to avoid automatic or ‘knee-jerk reaction’ as soon as allegations are made. Without any proper scrutiny Cafcass automatically recommended no contact. If we look at what is alleged we see the mother increasing the severity of her allegations as she doesn’t get what she wants. There seems on the mother’s case to be a presumption of a ‘magic wand’ in PD12J that an order should not have been made. The question is, where is the risk and could it be managed by the court?
120) The acutely difficult question the present appeal poses is the balance to be struck by the court between (a) the potential harm identified by PD12J of making orders that may place children at risk of the consequences of domestic abuse and (b) the emotional harm and potential relationship damage that may be caused by unilateral removal a considerable distance away from the family home and cessation of contact.
At the stage I heard the judge’s words, didn’t have the skeleton arguments, which the judge had already read (I do now). So even in advance of the oral submissions, the judge understood that the background to the domestic abuse and rape allegations was not without complexity. I was only realising this as the hearing unfolded.
The barrister commented:
“I think he was thinking aloud about the matters at points 74 and 120 and saying, in effect that it’s more complicated than JUST PD12J, because the court’s task is broader than PD12J, it’s to look at welfare in the round and the risks of a decision made now where allegations might later be found proved or not proved. I suspect that there is a tendency post H-N for advocates to throw PD12J around without fully addressing the broader welfare issues. What is clear from the judgment is that the judge was alive to the fact that at this preliminary stage, not all the information seemed to point in one direction, and he had to be cautious about just falling back on PD12J without proper critical analysis.”
I explained to the barrister the judge’s choice to describe one woman fabricating allegations came across, on the face of it, as really unfair to female complainants of domestic abuse. He could just as easily have said – and with more justification, given having come across just a single case of “completely fabricated” domestic abuse – “you know what, in many cases I’ve heard, I’ve found that men who deny domestic abuse are lying about their behaviour’” (remember, though he initially used the word ‘victims’ he immediately afterwards talked about “the objective” possibly being to deny fathers contact, so he was clearly talking about women). But no – he didn’t talk about men lying about not having been perpetrators when he had found that they were. He talked about women fabricating evidence to stop fathers having contact. In his choice of who to centre as the liar, he’s identified women, based on one single case.
I also said I thought it was insulting – both to real victims of domestic abuse in general and to this woman in particular. Before she has even had a chance at a fact find, the judge is saying he’s saying, effectively, ’sadly, women do lie’. He has no idea yet whether this woman has lied or told the truth. Even if not intended – and you know, I don’t think it was intended – it held a sting. It would come across to me, if I had been that woman, as impugning my integrity with zero evidence on which to base that.
Finally, I said, it’s just intimidating. Imagine if you were someone who, as this woman is alleging, had been multiply raped and subjected to domestic abuse over many years and – as admitted by the father – given your consent to sex with a man who repeatedly deceived you about having a life-limiting or at least life-altering sexually transmissible virus… Imagine you had, unknowingly, carried and given birth to children with him, who could also have been infected by his HIV positive status. Imagine how outraged and betrayed and abused you would feel. And now… now you know you need to prove it to a court to try to protect yourself and your children from this man in the future. And then, the judge says to you, before you even start, effectively, ’you know what, I know some women lie to me about domestic abuse to get their own selfish way’. Personally, no matter how mildly expressed – and the judge’s words were stated very factually and descriptively, without any sense of threat – I would feel very worried indeed about having to win my appeal in front of that judge, let alone have him oversee any future fact-finding.
The barrister’s response was frank. Having set out his thoughts on why the judge might have said those words, he said:
“However. Everything you say about impact on an actual victim is well said. I have heard judges issue warnings about what they will do if an allegation of rape is found to be untrue, ie report it on to the police. Result? Allegation dropped.”
“I hear what you say about the impression it creates and the potential chilling effect. It won’t have been intended but I can see it could well have that impact.”
He also said – and this speaks, I think to the vast gulf there is between someone alleging domestic abuse (just because it is not yet proved does not mean they haven’t experienced it, of course) – or indeed a lay person listening in to a hearing – and a judge who has a particular job to do:
“I see that the particular choice of words in fact inadvertently focuses on women not telling the truth, but I think again this has to be seen in the context of the mother attempting to show why the District Judge was wrong, and HHJ Dancey exploring whether the District Judge was entitled to be sceptical about some of the mother’s case and actions. As it turned out, he concluded the District Judge was, but that that his ultimate order was still wrong.”
“I think usually judges steer around this sort of wording better, by just talking about the need to try and decide where the truth lies and not having made up one’s mind etc etc, but in an appeal hearing the judge has to engage with the detail of what the judge being appealed said in their reasons and why they did what they did.”
This interchange with the barrister has given me a lot to think about.
I want to point out that in writing this post, I’ve not approached it the way I would have a “news” style article. In a news piece, I might have picked out the judge’s words in a headline like: “FAMILY JUDGE SAYS ITS “EASY” for WOMEN TO LIE ABOUT DOMESTIC ABUSE” or “SOME WOMEN “FABRICATE” CLAIMS OF DOMESTIC ABUSE, SAYS FAMILY JUDGE”.
Another option might have been: “HE LIED ABOUT HIS HIV STATUS – BUT FAMILY COURT ORDERED MOTHER TO GIVE HIM THEIR KIDS”.
As with all headlines, all of these would have been incomplete, but they would have been accurate in so far as headlines can be, and they would have done a good job of enticing someone to read on. The rest of the article would then have explained the background to the case, and the current status quo.
But what goes on in family courts is typically far more nuanced than a headline can reflect. What I wanted to do in this post was to offer a flavour of what I observed and, what as a lay observer with a declared interest in issues relating to domestic abuse and the family justice system, I felt about some of what happened in the hearing, and also, try to see if there were alternative explanations for something that made me feel angry.
The barrister signed off with the following comment:
“I wonder if the judge’s awareness of your presence and your interest in domestic abuse and its handling meant that he experienced your presence as scrutiny of whether he was doing right by the victim, which has led him to trip himself up in attempting to explain out loud what he was doing? As recorded by you it’s clearly a ‘for the benefit of any future audience’ remark, and as such probably was unwise. The same sentiments about the need for critical analysis of what both parties are saying are much more carefully expressed in the judgment. However, we will probably never know because he will not be able to comment publicly in response to your post. I think that it is fair to highlight the issue but also fair to acknowledge how sensitively and thoroughly the issues are dealt with in the judgment.”
I completely agree with that last sentence. For what it’s worth, I did not think, at all, that this judge intended to be intimidating, insulting, or unfair to the mother by saying those words. And I don’t know how she felt, because I’ve never spoken to her. But it is a very current example of how words said by a person in a position of power can be perceived by someone outside the system, with a very different perspective.
And the appeal itself: HHJ Dancey granted it. I encourage you to read the judgment – it’s detailed, forensic, and sensitive. I recommend it.