Why is our system placing children at risk?

More than 120 MPs led by Louise Haig MP have written to the government asking for an inquiry into how family courts in England and Wales treat victims of domestic violence. At least four children have been killed by a parent in the last five years after the family courts granted direct contact between them and a violent father.

The BBC’s Victoria Derbyshire show carried out an investigation into the family court and child contact orders. If you missed the program you can catch up on BBC iPlayer
https://www.bbc.co.uk/iplayer/episode/m00052qc/victoria-derbyshire-15052019 .
So what exactly is going wrong? Are the family courts letting down victims of abuse and failing to protect their children?

Lawyers, campaigners, charities and parents have become increasingly concerned that unsafe child contact, often unsupervised, often overnight, is being granted to parents with a history of and criminal convictions for domestic abuse; including attempted murder, serious assault, rape, child sex abuse and stalking. The consequences for victims and their children are devastating.

The problem is not a new one. Because of the fact that family proceedings are held in private to protect the identity of those involved it is often difficult to shine a light on the process and secure accountability for any decisions that are made incorrectly or without adherence to the careful judicial guidance which has been put in place to protect victims of abuse and their children.
It is not just the family courts who are failing victims of abuse and their children. It is the entirety of the justice system.

• Victims are failed in the first instance as a consequence of the cuts to legal aid, preventing them accessing help via the courts
• Once at court they are failed by a process which currently permits further abuse via the courts.
• Ultimately victims are failed by poor and inconsistent decision making with a focus on ‘contact at all costs’, in spite of relatively robust legal guidance designed to protect them and their children.
• This is because those responsible for safeguarding are not trained to properly understand the nature and risk associated with domestic abuse.
• There is need for greater clarity and training for the courts and professionals associated with abuse and how to keep children and their mothers safe.

An inquiry into what is going wrong and how it can be fixed is long overdue.

Those points in a little more detail please?

Access and Justice
In 2012 legal aid was decimated for private family law cases. Over 80% of legal aid was cut for these cases however victims of abuse were to be safeguarded. Provided that victims could prove the abuse through a stringent set of evidence (now slightly relaxed) they could still secure legal aid.

The difficulty is legal aid has both a merits and a means test and whilst proving that they are victims of abuse might assist them in passing the merits test, the means test is woefully out of date. Many victims on or below the breadline are unable to secure legal aid even though they are in receipt of the lowest state benefits. The government itself recognises that the means test needs reviewing however primary legislation is needed in order to do this and the timetabled review is a considerable way off. It is essential that a fresh means test is brought in which enables victims of abuse to secure the funding they need to protect themselves and their families.

Two women per week are still dying at the hands of a violent partner or ex partner. The government estimates the cost of domestic abuse to be £66 billion per year. Four children have been murdered following court ordered contact in the last 5 years. Enabling victims to protect themselves and their children by securing a protection order costing the state less than £1000 makes
complete economic, social and humanitarian sense. To fail to do so is entirely unacceptable.

Abuse through the courts
Even when victims of abuse can secure legal aid to go to court either to secure a protection order for themselves or their families or to resist an abuser having unsafe contact with their children, the cuts to legal aid have meant that the court arena itself can be used to further abuse them.

Alleged perpetrators of abuse are usually unable to secure legal aid to be represented and many resort to representing themselves. For anybody seeking to defend themselves against allegations of abuse, this inequality of arms places them at a significant disadvantage. This feels terribly unfair for the alleged perpetrator but it also provides an opportunity for some to use the system to further their abuse. Perpetrators are still entitled to cross examine their victims in court and many attempt to exercise this right.

Although special measures are meant to be available to all victims of abuse in every court these are inconsistent across the country and there is something of a postcode lottery in respect of courts’ attitude towards ensuring that special measures are in place and easily secured. It isn’t simply the ability to cross examine and the absence of protective special measures such as separate waiting rooms and screens that provide an opportunity for a perpetrator to use the process to further their abuse. In order to level the playing field for a litigant in person the courts are having to bend over backwards to ease the rules and compliance with directions to ensure that the litigant in person has the opportunity to be properly heard. Persistent applications, the late filing of
evidence, the opportunity to use evidence to raise issues which are of no legal relevance and the lenience granted to litigants in person can all serve to further terrorise victims through the court process itself. Many victims have described it as a re-traumitising event. Our justice system should be a fair and safe place for all.

Unsafe decision making
But it is the decision making itself which is of particular concern at present. Our family procedure rules do not invite courts to order contact at all costs. They intend to place a child’s safety at the very heart of judicial decision making. So what seems to be going wrong?

Practice direction 12J is part of the family procedure rules. These rules set out the way the court should deal with family cases. They cover all types of family law but practice direction 12J is the part of the family procedure rules that Judges must refer to in any application relating to children where there are allegations that a party or a child has experienced domestic abuse by another party.
The court should only order contact between children and an alleged abuser if they are satisfied that the children or their mother will not be exposed to a risk of harm.

Does our system properly understand the risks of harm associated with abuse and identify them
It is accepted that domestic abuse can have a devastating, long term impact on children. Growing up in a household of fear and intimidation can profoundly impact children’s wellbeing and development, with lasting effects into adulthood. Children exposed to domestic abuse are more likely to suffer from mental health difficulties, do worse at school and experience domestic abuse in
later life.

Children exposed to domestic abuse are also victims of child abuse. The Serious Crime Act 2015 made it explicit that cruelty to children which causes psychological suffering can be a crime. This includes where children are emotionally harmed by exposure to domestic abuse. Under existing law the definition of ‘harm’ to children recognises the impact of seeing or hearing the abuse of someone else.
Practice direction 12J was initially brought in to ensure that children’s safety is placed at the centre of decision making in cases where abuse has occurred. The chilling evidence set out in the Women’s Aid publication ’29 Child Homicides’ spanned a period of 10 years and the murder of 29 children by their fathers who had been found to be violent to their mothers, but whom the court had deemed ‘safe’ to have contact with their children. The report noted a serious lack of knowledge on behalf of all professionals involved in public and private children’s family law about the impact of domestic abuse and a very narrow understanding of the risk a violent partner of one parent poses to their children. The report made a number of recommendations some of which form the basis of research and eventually became practice direction 12j in 2008.

The practice direction was warmly received by those representing victims of abuse and their children and was a very useful tool for several years, however it was amended in 2014 to strengthen the presumption of parental involvement in children’s lives after lobbying from non-custodial fathers.

The climate was turning against the protection of children to one of ‘contact at all costs’, with the changes in family arrangements and the assumption of shared care as having a retrograde impact on the protection of children in cases of domestic abuse. The combination of this and the cuts to legal aid were two of the major factors that have endangered the lives of children by having court agreed, or ordered, contact with their fathers when they had already been shown to be violent.

Cuts in children’s social care and to CAFCASS have also led to less thorough safeguarding for children in the court system. There is a growing concern that CAFCASS are not qualified or resourced to properly identify and understand the risks and behaviours associated with abuse.

In January 2016 Women’s Aid published a second report about child murder in court agreed ordered contact called ’19 Child Homicides’. Again, they had researched serious case reviews of deaths of children during contact with a father known to the court to have been violent to their mother. Using some of the horrific cases from ’19 Child Homicides’, Women’s Aid were able to demonstrate to the House of Commons that significant changes had to be made to practice direction 12J to prevent
further deaths. As a result of this, and other campaigning, practice direction 12J was revised so that the presumption of contact at all costs could be displaced where the involvement of a child in a parent’s life would place the child or the other parent at risk of suffering harm from abuse.

However this does not appear to have been enough to save the lives of further children.
• Is it because the practice direction isn’t being properly followed consistently across the country?
• Is it because the entire system is so starved of funding that the safeguards that have been put in place are failing to identify the abuse that has taken place?
• Is the pressure on court time leading to quicker ‘rough justice’ with insufficiently forensic analysis of the facts of each case and risks associated?
• Is it because the abuse itself is being minimised in terms of the risk of future harm?
• Is it because those tasked with assessing the abuse and risk associated are not qualified or trained to do so effectively?
Likely it is all of the above. A cash-strapped system is now bursting at the seams with increasing public law cases. This has a knock on impact for private law disputes where unrepresented parties vie for reduced court time and too many corners have been cut.

To give a concrete example, it is very common for Judges to order that only five facts can be listed by a victim for the purposes of a fact find hearing. The victim will potentially choose five facts which appear the most grave in order to try to demonstrate the danger she considers herself and her children to be in. Her decision will be perverted by a number of factors such as whether she can
give evidence safely and whether she will be listened to. She may exclude, for this reason, any sexual abuse or rape that she has suffered. She may also exclude coercive control, emotional or financial abuse for which she would have to show a pattern of behaviour which would use up too many of her ‘incidents of abuse’ and for which she feels the system doesn’t properly understand the terror of.

Coercive control is an offence, however the insistence on limiting to five incidents for a fact finding hearing mitigates against its disclosure within family court proceedings and as such its existence is minimised. There are countless examples of coercive controllers who have subsequently gone straight from coercive controlling behaviour to the most serious of crimes including assault and murder. There is a serious lack of understanding about domestic abuse itself and patterns of abuser behaviour associated with it which need to be fully explored, understood and trained into the decision making process within the courts to allow the extent and nature of an individual’s abuse to be properly understood before any decisions are made about whether or not it is safe or beneficial for children to spend time with their abuser. ‘Some judges get it….some absolutely don’t. It’s a lottery’

Whilst the nature and extent of the abuse is being properly understood, the presumption needs to be reversed. There should be no contact with an abuser until it is clear that it is both safe and within a child’s best interests to have such contact. In order that children’s relationships with absent, non-abusive fathers are not damaged and minimized, this process needs to be expedited.

Many children are returning home distraught after being forced to have contact, begging not to go for contact visits and being forced to attend with the threat of accusations of alienating behaviours against their mother if they refuse to do so.

What can be done………?
If only there were a piece of legislation going through Parliament which could be used to address
these very real failings….but wait……..

We must take the opportunity to incorporate PD12J into the Act in full.
What changes could be made to the family law process to further protect and safeguard safe contact between non abusive fathers and their children while also protecting children and victims in families where there has been abuse?

Many are calling for the alteration of the presumption of contact at all costs to a presumption of no contact in cases of proven abuse, until there is insight and engagement on such program or programs to ensure that both child and parent will be safe and that contact will be in the child’s best interests.

The following measures would help:
1. Fast track early identification of abuse. Using properly accredited specialists throughout the process.
2. Fast track proper triage for abuse and fast track cases where it might exist. This triage needs to be undertaken with appropriate training by an independent body properly qualified to understand and identify abuse and risk. Possibly IDVAs or IDSAs.
3. Once identified there should be a fast track to a fact finding hearing so the nature, extent and impact of the abuse can be identified with complete focus on child safety and with sufficient resource for expert assistance and expertise in analyzing the potential risks. Facts should not be limited.
4. The fact finding must offer a fair process with
a. Consistent national approach to special measures
b. Legal aid for both parties where financially eligible up to the conclusion of the
c. National guidelines for timely police disclosure
d. A domestic abuse coordinator in each court appointed in order to specifically
ensure that victims going through the court process are properly protected and all
necessary measures are in place to try to minimise the risk of further abuse through
the court process.

5. The FDAC model of multiple engagement at an early stage with proper Forensic risk assessment
Assistance and support for victims
Assistance and support for children ( Fast track CAMHS referral)
Assistance and support for behavior change for perpetrators

6. There should be a court recorder collating information and reporting good and bad practice to the DA commissioner to embed better practice and instill greater confidence in the court process.
7. Where facts are found quickly protective measures can be considered expeditiously. Where no findings are made the parent/child relationship will be less damaged.
8. Training for the Judiciary to understand the different forms of abuse particularly the nuances and subtleties of some forms of psychological abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.
9. There need to be more programs for perpetrators which should be both clearly accessible and better resourced so that if a referral is made the outcomes are easier to predict and timescales are clear in order for sensible case management.
10. Both survivors and perpetrators spend too long waiting for support or change programmes.This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.
11. Legal aid for early legal advice needs to be reintroduced for ALL separating parents who are financially eligible. The non abusive parents could then be diverted from the court system into other remedies to fix the issues between them and the court process can be preserved for those more complicated cases where allegations of abuse have been raised.

How will we afford all this?
In cases where allegations of abuse have been raised calculations show that representing both parties will produce far swifter and more robust results and save more in court time than they will cost the government in representation. Representing both parties provides equality of arms and reduces the opportunity for abusers to use the court system to further their abuse.

Our adversarial process doesn’t assist. The emphasis on denial of abusive behaviour because of the adversarial process is often an obstacle to the insight needed for perpetrators to get help and engage in programs to ensure they can manage their behaviour. There is a greater need for an understanding of the insidious nature of all forms of domestic abuse and a move towards a more
inquisitorial role with expert risk assessment to uncover the real risks and protect children moving forward.

With a £66 billion cost of domestic abuse and the £1million it costs the state to prosecute for murder, with two women dying weekly and children being placed at huge risk, the question is how could we even consider not fixing this?

Beck Fitzgerald is a specialist family law firm with offices in Chancery Lane and Tower Bridge, central London. Giving expert advice and representation to our clients in all areas of family law and providing training and consultancy to the profession. For more information contact us on https://beckfitzgerald.co.uk/contact-us/

Jenny Beck

Solicitor and Director