“Assessing the risk of harm to children and parents in private law children cases” was published on 25 June 2020.  You can read it here.

When the review was announced two years ago I was a little sceptical that the panel would uncover the truth or, if they did, that they would be allowed to publish it.  But the report pulls no punches and lays bare the appalling practices in our family court and the damage it does to children and vulnerable parents.   Whilst reading it I felt relieved that I’m no longer part of this most dreadful system as a practising solicitor and I can only wonder how some of the judges feel when reading it.   In fact there was little in the report that I didn’t know although there were still a few shockers such as:

A Cafcass officer had received threats of physical abuse if the case did not go the way that the father felt it should, and the mother’s lawyer was then physically attacked by the father at court. The attack was witnessed by the court security guards but the judge was reported to have set it aside, stating that it could be ‘dealt with later if necessary’.

No wonder victims of domestic abuse don’t feel safe in court!

and:

One woman, whose partner had been charged with the criminal offence of grievous bodily harm …. found that when the case came before the family courts the judge relabelled the incident as ‘self-harm’.

and:

“My child was going through a children’s group programme at a local Women’s Aid, for children specifically and for mothers to help them recover from the abuse. My judge in my case stopped it because they said these groups would teach children that they’d been abused, they said these groups cause the children’s bad behaviour and said that they wouldn’t even know they were victims if they hadn’t been to these groups.”

And although I was aware this happens it’s still shocking to see it in black and white:

“We are informed [by service users] of Cafcass officers making recommendations for unsupervised contact with a perpetrator of abuse that they are unwilling to sit in a room with because they present a risk to the Cafcass officer.” Rights of Women

I was pleased to see one of my submissions in the report (page 62) which reassured me that someone really had read everything that was sent in.  About 1200 people responded to the review: 69% of them were mothers and 18% were fathers.  The panel also held round-table discussions and focus groups, including one with children who had been subject to court proceedings.

It seems that Cafcass isn’t so impressed with the report and have written a defensive response.   They say: “We agree that the imperfect system doesn’t always allow our social workers the opportunity to spend enough time with children to fully understand their experiences and hopes for the future.

Cafcass was not invited to be a member of the Panel and we do not agree that the criticisms in the report reflect our current practice.”

Err, no, Cafcass was not invited, it was an independent review!   And does that mean they accept the criticisms for the past?  Personally I’ve not seen any signs of change though.

Cafcass Chief Executive Jacky Tiotto did apologise though: I am sorry to the families and children who have reported that we have not been helpful to them.

There are four main themes in the report:

  • The pro-contact culture
  • The adversarial family court
  • The failure to share information
  • The lack of resources

Pro-Contact Culture

The presumption that it is best for a child to have both parents in their lives results in allegations of domestic abuse and child sexual abuse not being believed, or being minimised. For example, domestic abuse may be treated as ‘historic’ to enable contact to occur, rather than considering whether the abuse is relevant.  My mantra these days seems to be “it’s not parental conflict, it’s abuse” so I was pleased to read that:  allegations of domestic abuse can sometimes be reformulated as mutual ‘high conflict’ or, increasingly, used by the other parent as evidence of ‘parental alienation’.

A therapist summed it up very well (although I’d argue that it’s in more than “some” cases): “In some cases there appears to be a presumption that the parental rights of the father override the wishes and feelings of the child. In several cases, CAFCASS workers and social workers have seemed to regard it as their role to persuade the child to agree to contact with their father, irrespective of the father’s behaviour (this includes cases where the father has been convicted of offences related to domestic abuse) and of the stated wishes of the child.”

A mother reported: During [conciliation] with the CAFCASS officer, I said that I was requesting a fact-finding enquiry into the allegations against me [of ‘parental alienation’ and potential child abduction] and my own allegations of domestic abuse along with a Section 7, and that my son would like to have a voice in what decisions were going to be made on his behalf. The CAFCASS officer turned to me and said in a derogatory tone, “Yeah, that’s not gonna happen”. … The information and evidence which I had provided to the court regarding domestic abuse, including a history of controlling and coercive behaviour, psychological abuse and gas-lighting towards me and damage of my personal property, and emotional intimidation and physical abuse towards my son was completely ignored by the CAFCASS officer and the Court – simply ignored, unaddressed and swept under the carpet, as though they were completely insignificant and didn’t matter. I had also highlighted the father’s alcoholism, and this was equally ignored. Yet comments like “Let’s see what we can get for Dad” were stated by the Court Adviser and the Magistrates.

The report spells it out: It is difficult to understate the shock, dismay and anger reported by many mothers (and family members on their behalf) when describing how the court had ordered that unrestricted contact must occur despite what they perceived as serious and ongoing abuse putting themselves and their children at risk, one mother noted ‘The sole objective is contact, no matter what harm has or may occur’. They had assumed that the court would focus on protection and many reported being bitterly disappointed that the court appeared to prioritise contact instead.

The report also talks about the expectation that parents will work together as co-parents even where there is a background of domestic abuse and coercive control. A survivor in a focus group said:  “My ex the perpetrator is a psychopath, he’s a narcissist, and I’ve got a restraining order out on him, you can’t work together or co-parent with someone like that.”  You certainly can’t, but that doesn’t seem to stop the courts expecting the impossible from survivors.

There is also an acknowledgement that victims are frequently pressured by both judges and opposing lawyers into consent orders that do not address their concerns about abuse.

‘Selective listening’ was identified: children who wish to have contact are heard but those who don’t are either not heard or are pressured to change their views.

There were many reports of children being extremely distressed at the prospect of contact and of trying everything to avoid it.  A divorce and domestic abuse professional said:  “I have examples of children so desperate not to go to contact they for example hide under beds, lock themselves away in rooms, run into roads whilst under supervision of an expert, hurt themselves so they don’t have to go to contact, refuse to go to school, suffer severe tummy pains to the extent they have been rushed to hospital with suspected appendicitis which was proved to be emotional pains only, cry, withdraw, become more clingy to their ‘safe’ parent, regress to a much younger age in behaviour, display mute catatonic behaviour when asked about the parent they are scared of, stop socialising with other children and have regular nightmares.”

The report talks about the impossible position mothers are placed in when the court orders them to force their children to go to contact with the threat of imprisonment or the children being removed from their care if they don’t.   When children are placed in danger like this they lose trust in their mothers and children are deprived of their key source of resilience against the effects of abuse – the support of their protective parent.  This means that the only person who can protect the child is the child themselves which I’ve written about before (https://dealingwithdivorce.co.uk/how-to-win-in-the-family-court-part-1-child-power/)  and which is so utterly wrong.

One mother reported her child’s solution: “My son when he was 12 wasn’t allowed a say, I had to make him go to his dad and he hated me for it. His schooling went downhill, he was kicking off at school. He was being hurt by his dad and I had to keep making him go. Till one day he got naked in bed and said I had to try and dress him for him to go.”

There is occasional good news in the report like this mother’s story, although it still really puts the responsibility onto the children: “I received an amazing line in my court order by a judge who understood (eventually) my ex’s control over us. The line was put in to protect the children when they didn’t want to go (felt unsafe after an abusive episode) so that the law didn’t say they HAD to go to him because it was his contact time. The line was along the lines of ‘whilst the mother is to support contact, the children’s wishes and feelings must be considered’. Several policemen have told me what a great line this is in our court order and how they wish more court orders had this line. The judge told me to tell the boys about this line in the court order – he knew he was empowering 2 children with this. And he was. It has proved absolutely invaluable to us and enabled my children to create for themselves some stability over the longer term.”

The panel appear to have been shocked by the accounts of the harm children have suffered as a result of court-ordered contact with abusive parents: The panel acknowledges that it is difficult to do justice to the scale and severity of damage described by respondents. We were told of children experiencing multiple physical injuries, being sexually abused and emotionally devastated; of children developing eating disorders, sleeping problems, night terrors, bedwetting, stomach pains, anxiety, insecurity, hypervigilance, anger, behavioural issues, low self-esteem, ADHD, OCD, PTSD, complex PTSD and depression. In addition, submissions described children’s schooling being affected, children experiencing learning difficulties and being excluded from school. There were many accounts of children self-harming, some of children attempting suicide and, in a few awful cases, of children committing suicide.

The report includes account from some of the children who have been subjected to such orders and how they have been affected.

The situation is well summed up by a divorce and domestic abuse practitioner: “The fact is that an abuser cannot be a good parent. The courts need to recognise this. The belief that is held in the courts is that the trauma experienced by a child in later life from not having a relationship with their parent is more than any trauma caused by forcing contact. This is simply not true and is extremely barbaric and damaging for a child.”

Adversarial Family Court

I have always been of the opinion that our adversarial legal system is unsuitable for family cases and the panel found that it puts parents in opposition to each other with little or no involvement of their child. They heard that: victims of abuse and protective parents who appeared as litigants in person reported feeling powerless, confused, unsupported and excluded, which compounded the levels of anxiety, stress, fear and trauma they were already experiencing.

Where a victim of domestic abuse or a protective parent is represented and the perpetrator is a LIP, participants in the professionals focus group reported that judges appeared to ‘bend over backwards’ to assist the LIP to have a fair trial, with examples of abusive behaviours being interpreted and excused as failure to understand the process.

They also report on how abusers and the abused appear differently in court but it seems either way the abused can’t win as: an abuser may be more believable when they appear calm, well presented and ‘reasonable’. Some of the submissions from mothers told of how they felt seriously disadvantaged by appearing emotional and disordered, in contrast to the controlled and ordered presentation of their abuser. However, as some of the professional submissions to the panel highlighted, the ‘disordered’ appearance of the mother may be due to the ongoing impacts of abuse and their close proximity to their abuser, especially in the absence of protective measures.

Whilst abusers may often present a calm and convincing demeanour to professionals, this is not universally the case. The submissions included some examples of abusers becoming verbally and physically aggressive in the court building and even in the courtroom itself. In some instances judges and court staff were said to have ‘made excuses’ for such behaviour. The panel was told of abusive behaviour being regarded as ‘justified’ as an understandable result of the frustration at lack of contact and the mother’s perceived hostility to contact in some cases.

Lack of information Sharing

The report does not refer directly to the Three Planet Model but says the differences between criminal justice, child protection (social services and care proceedings) and child arrangements proceedings lead to contradictory decisions and confusion.

A mother’s former husband was jailed for rape of her and child abuse offences. He was described by the criminal court as a dangerous man but, she felt, “the family court seemed to bend over backwards trying to accommodate him in his bid to get to see the children”. Given his convictions she expected the family court process to be straightforward, but he was able to prolong the case for more than five years, at a cost to her of more than £50,000 in legal fees. In court she was not automatically given a screen and had to ask for one each time. She described how “many of the family court hearings were heard in the same criminal court where I had given evidence at the rape trial. I was visibly shaking because of this and nobody in the court system seemed to care.” She was also concerned that there was no reference to the police or the criminal court to explain the risk her ex-husband posed. She felt that “if the two courts had actually done some joined-up thinking and shared information then there would have been no need for a lot of the family court hearings.” She also felt that because her ex-husband was “middle class and eloquent”, he was given more leeway by some of the judges. “I don’t think that they thought that I could have been that much of a victim, given what he looked and sounded like – but … had they had access to the police files they would have immediately understood just how vulnerable I really was.” She concluded, “Please think about streamlining criminal courts and family courts – it would really help. The two are linked and we as victims should not have to go through these things twice.”

The panel went so far as to say that the lack of information sharing can be “life threatening” and “available evidence of domestic abuse and its impact on children is ignored by family courts”.

One mother said: “My ex-partner was finally arrested for domestic abuse after a four year reign of terror over our family. He was given a caution for ‘previous good character’. Social services and CAFCASS both said he should have no unsupervised contact with the child. I successfully sought and was granted a non-molestation order. We then had to go to the family courts… The [District] Judge found my ex was violent, controlling and had definitely perpetrated domestic abuse. Shockingly the judge was only concerned with ‘father’s rights’ and awarded unsupervised contact anyway.”


Lack of resources

We all know there are not enough courts or judges so although many people are wrongly refused a fact finding hearing the reality is that there would not be sufficient court time for everyone who needs one.  In another effort to reduce court time review hearings were all but abolished about six years ago.   This means that parents have to find the resources (time, money and energy) to take their case back to court if there are problems, instead of the court ensuring that the orders it makes are safe and workable.

And then there’s Cafcass and social workers, and there aren’t enough of them either which means they can’t spend enough time with families to really get to know them and understand what’s happening.  That said many respondents to the review highlighted that assessments need to start with an open mind which costs nothing and would bring a big improvement to many cases.

The time pressures also mean that not only do Cafcass spend very little time with the child, they often don’t talk to other professionals who know the child much better and have had involvement with the family, such as schools, domestic abuse charities, police, GPs etc.  Worse still, even when there is evidence from such professionals, the judges give greater weight to the views of Cafcass.

The report states that children do want to be heard, despite The National Association of Alienated Parents’ claim to the contrary.

Recommendations

There are 16 pages of excellent recommendations ranging from a complete overhaul of the system to better training for judges and magistrates.  In summary, the panel recommends that the basic design principles for private law children’s proceedings should be:

  • A culture of safety and protection from harm
  • An approach which is investigative and problem solving
  • Resources which are sufficient and used more productively
  • With a more coordinated approach between the different parts of the system

The Ministry of Justice has published an implementation plan and says:

This Implementation Plan sets out the immediate changes we are making in response to the panel’s report, including prohibiting the cross-examination of victims by perpetrators and alleged perpetrators of abuse, and legislating to give victims of domestic abuse a presumption of eligibility for special measures in the family court.

I’m afraid this leaves me feeling totally underwhelmed: banning cross-examination by an alleged perpetrator has been talked about for years (and never allowed in the criminal courts) and is finally in the new Domestic Abuse bill so it’s not clear what else they are going to do.  Furthermore, although it means if you or your child is a victim you won’t be able to be cross-examined by your abuser if s/he is not represented, if you are a litigant in person you will presumably still have to cross-examine your abuser yourself.   As for the special measures (separate entrances and waiting rooms, and screens in court) they are already provided for in PD12J.  Of course a practice direction is not the same as it being law and these things often don’t happen because the court doesn’t have the resources to provide them.  So that will be a minor improvement.

The pilot schemes sound good (piloting an investigative approach in child arrangements cases, seeking to improve coordination between jurisdictions and agencies, enhancing the voice of the child, better training, and more generally, the introduction of new design principles for private law children proceedings) … but are on hold due to the coronavirus.

The report says that:  the panel is clear that the presumption of parental involvement should not remain in its present form.  We recommend that the presumption of parental involvement be reviewed urgently in order to address its detrimental effects.

The MoJ say they will do this, under the leadership of the Family Justice Board.  Unfortunately they don’t say when.

What does this report mean for you?

I’ve only been able to give you brief details here so please do read this important report which you can find here.

It is long (216 pages, or 187 if you don’t read the legal stuff at the end) but it’s easy to read ie it’s not full of technical or legal gobbledegook.  If you can’t manage it all you can just skip through the comments of parents, children and professionals highlighted in blue, and read any bits that may be pertinent to you.

If you are in court proceedings you can pick out a part of the report that fits your case and refer to it.  The judge will no doubt tell you it’s not law yet so you could ask for an adjournment until it is!  If you are represented, give your barrister the relevant part(s) and ask them to emphasise it for you.  There is also a literature review where you should be able to find some useful research and statistics to use in your case.

Mothers in one of the focus groups said they had been told by their lawyers that their abusers would be granted contact and there was nothing they could do about it.  This of course is why many parents are so irate at the huge amount of money paid to their lawyers who refuse to do the job they’ve paid them for ie to fight for their client.  (Which of course is wrong in itself, see the comments on our adversarial system above.)  My advice is always to fight as long and hard as you possibly can for your children, appeal every wrong decision, complain to your MP and anyone else who will listen (always bearing in mind your gagging order of course), and make complaints against Cafcass and social services where appropriate.

What does this report mean for the future of the family court?

Parents are not allowed to talk about their dreadful experiences in the secret family court.  Journalists are allowed in, but they’re not allowed to report anything that could identify a child, which means they can report so little they usually don’t bother going.  So this report has done what no individual could, and collated hundreds of experiences which have a few common themes; now there is no hiding what children and survivors are enduring in the family court and we need to keep pressing for the recommended changes to be made.