New report calls for a ban on cross-examination of survivors in family courts by their abusive former partners.
Women’s Aid and Queen Mary University of London (of which I am gladly an Alumni) have released a new report on domestic abuse, human rights and child contact cases in the family courts. The report can be found here. It is based on the testimonies of 72 women survivors of domestic violence.
The report, “What about my right not to be abused?” Domestic abuse, human rights and the family courts, reiterates (as in a previous report here) the need to challenge the existing ‘contact at all costs’ culture in order to always put the child first. The report uncovers a range of examples of gendered attitudes, myths and behaviours within what is so-called ‘the deep structure’ of the family courts, some of which are cited below.
The report made the following key findings:
- Evidence of domestic abuse was not taken seriously by the courts and other professionals involved in the child contact process. This led to potentially unsafe decisions on child contact being made.
- Prevalence of gender discrimination within the culture of the family courts and evidence of a culture of disbelief.
- Domestic abuse and child abuse are frequently obscured by allegations of parental alienation against the non-abusive parent.
- Presence of clear safeguarding gaps around child contact, both for children and non-abusive parents.
- Long-lasting effects of going through the family courts as a survivor of domestic abuse
- Presence of clear gender differences in the way that parties in court understood and used the language of human rights. Also, the rights of children to have their views respected and to be protected from violence, abuse and neglect, as set out in Articles 12 and 19 of the United Nations Convention on the Rights of the Child (UNCRC) were not always upheld.
Women’s Aid has made the following key recommendations:
- Setting up an independent inquiry into the handling of domestic abuse by the family courts.
- Ensuring that all professionals involved in child contact cases in the family court can benefit from greater awareness raising and training on human rights, domestic abuse, discourses of parental alienation, and discrimination.
- Creating an independent, national mechanism for oversight of the judiciary in child contact cases involving domestic abuse.
- Ensuring that there is no unsupervised contact for a parent who is awaiting trial or on bail for domestic abuse related offences.
- Ensuring that supervised and supported contact options are regulated and safe.
- Clarifying that the presumption in the Children and Families Act 2014 (that the welfare of the child is best served by the involvement of both parents) does not apply where there is evidence of domestic abuse.
- Improving the use and awareness of Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm.
- Banning cross-examination of survivors in family courts by their abusive former partners.
- Taking action to prevent the family courts being used to perpetuate post separation and financial abuse (through better use of Section 91 of the Children Act 1989, which gives courts the power to make an order preventing further applications by a party).
- Guaranteeing special measures for survivors of domestic abuse in the family courts (such as separate entrances and exits, waiting rooms, screens and video links).
- Better regulation of expert witnesses in the family court (by requiring them to be registered with relevant professional bodies and societies).
- Ensuring that survivors of domestic abuse are able to access free specialist support and advice.
- Continued monitoring of the legal aid domestic violence gateway.
The report observes that the survivors of domestic violence are re-victimised and traumatised by their abusers through the family court process. The report recognises the positive developments like the revised Practice Direction 12J, but raises concerns on the continued lack of adequate understanding of the links between domestic abuse and child well-being and safety. Some of the key features of the updated PD 12J, as listed in the report are:
- sets a mandatory requirement for the courts to determine whether children and/ or non-abusive parents will be at risk of harm from a contact order;
- clarifies definitions of domestic abuse, coercive control and the harms caused to children;
- makes clear that judges must carefully consider how domestic abuse impacts children, and question whether the “presumption of contact” applies in these cases;
- interim contact orders should not be made if there are findings of domestic abuse;
- appropriate arrangements, specifically separating the waiting rooms and the entering and exit times, need to be made.
The report mourns the lost opportunity to ban cross-examination of survivors by their abusive former partners in the family courts through Prisons and Courts Bill which, despite enjoying wide cross party support, fell due to the general elections 2017. The report celebrates the introduction of Family Rules Part 3A and Practice Direction 3AA which require courts to consider whether those involved in family proceedings are vulnerable and if so, whether this is likely to diminish their participation in proceedings or the quality of their evidence. The change in legal aid rules also got a mention which removed the five year time limit for evidence of domestic abuse and widened the types of evidence allowed to prove domestic abuse.
Alarmingly, 50% of the survivors surveyed said that they reported the abuse to a public agency but no action was taken. In only 2% cases, a domestic violence protection order (DVPO) was put into place. One survivor reported that when she was pregnant with her little one, her ex-partner tried to kick him out of her. This was in the police reports but the system still pushed for him to have contact. Another survivor believed that lawyers are very much ‘enthralled to the proceedings’ and the judges and would not say anything to upset them. According to the report, women said they felt they faced a lottery as to whether their case would be heard by a judge or magistrate who understood the dynamics of domestic abuse. One survivor reported that the judge said she did not fit the profile of domestic violence victims as she was not scared enough! Lack of understanding of rights are also reflected in the report as one survivor told that she realised it late that she had the right to say ‘I’m not going to talk to him [ex-partner] on his own’.
An important area highlighted by the report is the practice of cross-examination by those alleged to have perpetrated domestic violence. 24% of survey respondents reported to have been cross-examined in this way. The surveyed women reported feelings of being traumatised and degraded, unable to advocate properly for the safety of their children. The report found inconsistencies and failures in the provision of special measures for survivors of domestic abuse. No special measures were in place for 61% of the survivors surveyed.
The report blamed ‘deep structure’ of institutions operating in the culture of gender discrimination, attitudes, stereotypes, myths and behaviours which blocks the success of policies and procedures designed to create positive change, for e.g. PD 12J. One survivor felt that the judge was very sympathetic to her ex, who cried, shouted and slammed books in court, while she was very quiet and still. This unrepresented survivor was allowed to be shouted at by her ex despite the fact that he had a barrister to represent him. The judge, according to the survivor, excused this behaviour because “emotions run high”. The report stated that the perception persists of mothers deliberately flouting contact orders as part of efforts to ‘punish’ their ex-partners when evidence shows that the majority of mother survivors do try to promote contact where they feel it is safe and in the child’s best interests.
According to the report, survivors described sad situations where judges used the same type of demeaning language that their abusive ex-partners had used, describing them as difficult, irrational, and telling them to calm down if they became upset or angry. One survivor reported that the judge said to her ‘I’m sorry, I can see why Mr […] finds you such a difficult woman’. While another claimed that the judge banged his fists on the desk and shouted that he would never give the survivor her children back. Some respondents of the survey felt let down by their own lawyers as one survivor was [mordantly] told by her barrister that since she knew the law so well, there was no need for her services. Another survivor reported to have been accused of being ‘over-researched’ in court.
I thought I had the right to a fair trial,
the right to be heard, to speak, but I was
repeatedly told by the judge to ‘shut up’.
By various judges to ‘shut up’, just ‘shut
up’. And I was referred to not by my name
but by my status as a wife even though
I was divorced. And also referred to as
‘you’. Not Mrs or Ms or anything but ‘you’.
Whereas he was repeatedly called by his
name, given a status and title while mine
was taken away.
(Focus Group Participant)
A disturbingly 69% of respondents said their ex-partner had been emotionally abusive towards their child(ren), while 38% said their ex-partner had been physically abusive towards their child(ren). Yet more disturbingly 8% said their ex-partner had sexually abused their child(ren). Despite these statistics, eight respondents reported that the section 7 report did not mention domestic abuse, even though they had raised it with the report author. Women’s Aid has raised concern that the gaps in awareness around the dynamics of domestic abuse, as well as the gendered attitudes, behaviours and stereotypes are also an issue for some professionals engaged in writing section 7 reports. According to one survivor, the Cafcass officer dealing with her matter thought it was fine that guns were stored at the ex’s house. In one case, the father was not considered to be a risk to the children despite his abuse towards the survivor being assessed as high risk. With these factors in operation, women reported to have felt a risk of being accused of parental alienation. This resulted in them being hyper-aware of their own actions in terms of helping to facilitate contact, despite safety concerns.
Based on the responses of the survey, the report notes that in the sample of 72, sole residence was awarded to the women’s ex-partners more often than it was to the women themselves. Unsupervised contact in different forms, including overnight and weekend stays between the child and a parent who has been accused of domestic abuse, was by far the most common arrangement ordered. Supervised contact was ordered in only a low number of cases surveyed. The problems with contact centres for supervised contact are also detailed in the report. One survivor informed that at the contact centre, the support worker seriously considered the suggestion of the father to ‘ambush’ his daughter [who was not happy to see the father], and put her in a room, and then he [the father] walk in on her.
Women’s Aid believed that in some situations the safeguarding concerns became confused with stereotypes and misconceptions about how victims of domestic abuse should, or shouldn’t behave. This view is reinforced by the account of one survivor who was handed down a judgement which refused to accept recommendations of section 7 report arguing that she would never have allowed anybody to abuse her children because she is an educated and knowledgeable woman.
The testimonies of the women surveyed highlighted clear gaps in safety around child contact, both for children and non-abusive parents. Many women felt that the family court not only failed to stop the abuse, but also gave their former partners the power to continue it. They reported a fear of being taken back to court at any time by their abusive former partners who would capitalise on their vulnerability. This trend depleted survivors’ self esteem and abilities to advocate for their own and their children’s rights.
While discussing the human rights implications, the report helpfully highlights the distinction between Article 8 rights as ‘qualified rights’; rights that may be interfered with in order to protect the rights of another or the wider public interest, and Article 2 and Article 3 rights which are ‘absolute rights’ and cannot be derogated from under any circumstances. Women’s Aid holds the view in the report that the claims made under the qualified rights in Article 8 should not be able to ‘trump’ claims made under the absolute rights of Articles 2 and 3. However, for some of the women surveyed, this was not the reality. One surveyed woman reported that in her case, the issue was that the father had assaulted her youngest child but still the judge kept bringing up the rights of the children to have contact with their father. Too often Article 12 and 19 rights of UNCRC are being obscured by a focus on the abusive parent’s rights under Article 8 of the HRA.