Summary by Support Not Separation, 1 July 2020

BACKGROUND

On 15 May 2018 over 120 MPs called for a public inquiry into the way the family courts dealt with domestic violence. This was reported by the BBC Victoria Derbyshire show, which conducted its own investigation exposing serious and dangerous bias against women victims. Following this and ongoing pressure from networks of mothers who are going through the courts, up and down England and Wales, the MOJ commissioned a review by a “panel of experts” (judges, academics, voluntary sector, lawyers).

On 25 June 20202 the panel issued an extensive report (Assessing the Risk of Harm to Children and Parents in Private Law Children Cases together with Domestic Abuse and private law children cases: A literature review conducted by an independent academic).  Evidence was provided via almost 1200 submissions (of which 69% were mothers/mothers families, 18% fathers, and 3% voluntary sector organisations, such as ours), together with roundtable discussions and focus groups the panel conducted.  

We submitted evidence based on years of working with hundreds of mothers who’ve suffered rape/domestic violence. The mothers who come to us are overwhelmingly low income, single mothers, women of colour and/or who have a disability. They tell (as does our own experience, Suffer the Little Children and their Mothers, published in 2017) of a family court process that is deeply sexist, racist, class-biased and discriminatory in other ways.  

The Review findings and the research reviewed confirm this. They show that it is overwhelmingly women who are the victims and men the perpetrators. (ONS figures confirm this: In the year ending March 2018, 92% of defendants in domestic abuse-related prosecutions were men; 83% of victims were female and around 95% of calls to domestic abuse helplines in the same year were made by women.)  And theyspell out how CAFCASS, social workers, psychiatrists, lawyers and judges ignore, downplay, disbelieve and/or dismiss mothers who report domestic abuse from the men pursuing them through the court, how they coerce children to see fathers they are terrified of or want nothing to do with, and how they take children away from mothers who report domestic violence rather than protecting both children, mothers and the relationship between them. 

Key findings from the Review   

1. Presumption of contact

The Review showed that: The presumption of contact pervades the whole of the court process and is used by abusive fathers to insist on unsupervised access and even residence of their children, with deeply harmful consequences.

“… the legal presumption that it is in children’s best interest to have contact with both parents (introduced into law in 2014) has led to a ‘pro contact culture’ reflected in case law and promoted by all professionals … [which] results in a pattern of minimisation and disbelief of allegations of domestic abuse and child sexual abuse.”

“… the dominance of contact [is seen] as excluding other welfare considerations, including the child’s need for protection from abuse, or the child’s wishes and feelings [our emphasis]. Establishing contact appears to have been the dominant consideration …”

The Review recommends that: The legal presumption that contact with both parents is in a child’s best interest “should not remain in its present form”. 

2. Parental alienation

The Review showed that: Mothers attempting to protect their children (and themselves) from domestic violence are accused of “parental alienation” by fathers. (This is junk science invented by a discredited US psychiatrist who denied domestic violence and defended paedophilia.) CAFCASS and other professionals invariably believe fathers and dismiss mothers. The courts are biased against mothers and against children, allowing testimony of parental alienation while denying testimony of domestic abuse, especially sexual abuse.

“… an allegation of ‘parental alienation’ meant that the parent who is the subject of the allegation will be treated as an ‘alienator’, rather than as a protective parent with well-founded fears around abduction or violence.”

“… there is a disparity of approach to expert testimony, with the courts allowing expert testimony on parental alienation but not allowing expert testimony on domestic abuse.”

 “… professionals were too ready to see signs of alienation, and so silencing children, rather than assessing further what the child may have witnessed or experienced. This was particularly evident where allegations of sexual abuse had been raised … If children have been alienated, then their wishes and feelings are seen as contaminated.”

3. Mothers who report domestic abuse are disbelieved and dismissed

The Review showed that: Women’s complaints are repeatedly downgraded, disbelieved, ignored, or dismissed as “historic” and therefore irrelevant to contact. Mothers are advised by lawyers not to disclose violence i.e. to lie about their situation. Sexism, racism and class prejudice make it even harder to report.

“Mothers … are dissuaded from raising allegations of domestic abuse because of fears of counter allegations of parental alienation or of hostility to co-parenting … on occasions, the mother’s own lawyers advised them not to raise allegations for these reasons. There was evidence of domestic abuse being relabelled as ‘high conflict’ relationships.”

“… There are particular barriers for victims of BAME backgrounds in raising domestic abuse; victims and the professionals supporting them perceived these barriers as involving racism, in addition to sexism and class prejudice.”

“… the theme of intersecting structural disadvantage came through strongly … BAME women felt their negative experiences of the court process were compounded by racism.”

“And when women do attempt to report the abuse suffered in court there are “a number of barriers to credibility including: fear, intimidation, retraumatisation in court room; sexism, racism, classism; pro-contact culture, minimisation of abuse; lack of understanding of coercive control and trauma …”

4. The Voice of the Child is ignored or dismissed

The Review showed that: Children are coerced into distressing and abusive contact. Their “wishes and feelings” about not wanting contact with a father who has been abusive or with whom they have no relationship are ignored. (This is in direct contravention with the 1989 Children Act.)

“… children’s views are frequently disregarded, primarily in cases where children are stating that they do not want to spend time with an abusive parent. Previous research studies have found a pattern of ‘selective listening’ where CAFCASS and courts react positively when children express a wish to spend time with a parent, but treat those who do not as problematic and obstructive, even when they expressed fear of their parent due to experiences of violence or abuse.” 

“… a significant number of children who have experienced domestic abuse are not consulted on their views and experiences during the court process … children are rarely consulted on how arrangements are working for them once an order has been made.”

5. No safety in court

The Review showed that: Mothers describe the court process as an extension of the abuse they’ve suffered. Protective measures are not implemented.

“… many mothers … said that they did not feel safe at court and found the court proceedings themselves re-traumatising … when attending court and giving evidence; many described it as the worst experience of their lives, using terms such as ‘horrendous’ … professionals agreed that whilst in theory measures to protect victims were in place, in practice these were not always available or used effectively.”

6. Court orders endanger mothers and children

The Review showed that: Judges repeatedly make court orders which ignore danger to mothers and children. They threaten mothers with taking their children away if they do not abide by the contact that is ordered. The long-term impact of separation on children is not considered.

“ … the orders that the court makes in the majority of domestic abuse cases look very similar to those made in non-domestic abuse cases, with the expectation that restricted contact will progress to less restricted and unrestricted contact as soon as possible, if it is not ordered immediately. In only a small proportion of cases will the court impose protective measures, and these have been criticised as insufficiently protective against determined abusers and frequently of limited duration.”

“… as a result of court orders and continuing abuse, children and adult victims have suffered long-term physical, psychological, emotional and financial harm, harm to their education, and harm to their parent-child relationships, sibling relationships, wider family relationships and children’s future relationships.”

“Mothers overwhelmingly described continued abuse, control and suffering in connection with contact orders. Some reported that the abuse had worsened and they considered their children to be in greater danger after family court proceedings. A consistent refrain was that they and their children were now subject to what they perceived as court-ordered abuse.”

7. Children’s protection vs fathers’ “rights”

The Review showed that: Mothers were concerned with protecting children while fathers were concerned with themselves.

“There were general differences between the submissions made by mothers and fathers about the outcomes of court orders. Mothers expressed very high levels of concern for the safety of their children. Many felt that they and their children were worse off as a result of going to the family court, and many expressed feelings of despair, anger, anguish, desperation and hopelessness at the situation they found themselves in after court proceedings. Submissions from fathers were less detailed and more focused on the outcomes of court orders for themselves. They generally expressed less concern about abuse to children resulting from court orders, their children’s safety, or being trapped in abusive relationships, and provided less evidence of harm to children as a result of living with or having contact with their mothers …This is consistent with the literature which shows that in child contact proceedings fathers often construct their arguments in terms of their rights while abused mothers rarely do so.”

8. Recommendations

The recommendations do not reflect the strength of the evidence nor the actions that need to be taken to redress the injustices and dangers mothers and children describe in this Review of the family courts.

The most important recommendation (mentioned above) is that the presumption of contact with both parents as in a child’s best interest “should not remain in its present form”. 

The main other recommendations are:

• more victims to receive special protections in court
• stronger powers for judges to prevent abusers repeatedly dragging a victim back to court
• new investigative court process trialed to reduce conflict.

The Review’s keys findings must be known and that is why we have prepared this summary.