When Caroline Flack died, I read posts on social media and some were saying how abusive she’d been to her partner, while others were saying she was the one who was abused.
Those who thought she was the abuser said things like:
While those who thought she was the one who was abused said things like:
And some even queried whether it was suicide:
As I was reading all of this, I was immediately struck by how similar it was to what the family courts regularly have to decide: which of the two is the abuser, if either. In fact, I had never heard of Caroline Flack before she died, so knew nothing about her which meant I read the social media posts a bit like a judge in a family court – new to the evidence presented to them. And I had absolutely no idea which of them might have been the perpetrator and which the victim. Another post said:
So, it’s clear that the family courts are faced with an almost impossible task when they have to decide cases involving abuse.
Where do they start?
Practice Direction 12J applies in any application relating to children where there are allegations that an adult or child has experienced domestic abuse by the other party. If the other person denies the allegations of abuse, and if the allegations will make a difference to the court’s final decision, the court should hold a fact-finding hearing.
These hearings are more like criminal trials than normal family court hearings as both parties and any witnesses have to give evidence under oath, and be cross-examined, about the allegations. At the end of the hearing, the judge says which allegations they find to be true, and which they don’t.
This all sounds good, but there are two big problems:
1. See above. Domestic abuse is complicated and judges have very little training in it, so there’s no guarantee at all that they will come to the right conclusion as to who is the abuser and who the abused. If the abuser is projecting i.e. accusing the other parent of what they are actually doing themselves, how is a mere lawyer supposed to know who is telling the truth? This is why I believe that family courts should have social workers and psychologists sitting with the judges, which would give a better chance of them reaching the right decision. The wrong findings made at a FFH can make things much worse, rather than better, for the abused party.
2. These hearings take a lot of time – the minimum would be one day and some go on for several days – and the courts are very short of time.
So, very often the court will try to avoid holding a fact-finding hearing. They may say that the outcome would not change their decision as to residence or contact in any event. Or, they may try to deny the abuse altogether and dismiss it as ‘parental conflict’. It often looks like conflict either because there are counter-allegations, or because the protective parent is fighting back hard to protect their child.
When there’s parental conflict following a separation, this usually settles down in time and the parents are then able to work together in the best interests of their children. When there’s abuse, this is never going to change and you cannot co-parent with an abusive one.
But this doesn’t stop Cafcass and the courts from constantly trying to bulldoze an abused parent into co-operating and negotiating with their abuser. So, if you hear the words ‘parental conflict’ or ‘high conflict’ or ‘intractable conflict it’s important to state quickly, clearly and repeatedly that it is not conflict, it’s abuse.
If you’re dealing with any of the issues here, let’s have a chat, just drop me a line (email@example.com) so we can arrange a convenient time to talk.
Abused or abuser – how does the court decide?
You might also be interested in reading the 'Legal Structure of Divorce' a two-minute guide to divorce proceedings.