It looks like the Family Court has finally decided to drag itself out of the Dark Ages after a report recommending that the presumption of contact ‘at all costs’ be reversed so that victims of domestic violence are not exposed to more harm.
The news that families will no longer have to suffer the indignity, and ongoing damage, of prolonged abuse through child contact is a very welcome development. The recommendations are set to become revisions within Practice Direction 12J, which addresses contact issues in the context of domestic violence and harm.
A report written by Justice Cobb recommends making several changes to the way the family courts deals with child contact where there is evidence of domestic abuse which could place children and partners at risk. At the moment, the burden of proving contact would be unsafe is placed on the alleged victim.
Whilst it has been suggested that the presumption of contact at all costs will be scrapped, a conflicting view also put forward is that the presumption will still operate but would be excluded where risk of harm could be shown.
In reality it’s not yet clear how the new presumption will work, however it may be that experts will be brought in to decide whether contact could lead to harm. This will also open up debate over the controversial ‘risk of future harm’ threshold the Family Court currently uses, especially where abuse has either not been formally documented or evidenced. The recommendations to revise Practice Direction 12J have not yet been approved by government.
The report follows research from Women’s Aid which confirms that at least 19 children were killed by violent fathers in the last decade after being awarded contact by judges.
Allowing violent and allegedly violent or abusive partners to personally cross examine their victims in court is also being addressed. Currently the criminal courts do not allow this to happen, but our Family Court does (this was our topic for the Huff Post this month). Justice Cobb also recommends that this practice is stopped, however a lack of funds means that separate waiting areas in court houses have disappeared – an important aspect of reducing the trauma of a court hearing with a violent or abusive partner and ensuring victims feel they can attend court. Perhaps it’s time to rethink courts as venues for family matters? In any event, the government has agreed to implement legislation to ban this kind of cross examination. In the meantime, we hope judges get fully briefed on 12J as it stands, as it gives family judges the power to prevent personal questioning and assume the cross examination on behalf of the abuser, or alleged abuser.
Some articles and posts on contact, domestic violence and gender inequality in parenting:
- Domestic Violence And Contact Orders In The Australian Family Courts – Too Close To Home? (2015)
- Judge Forces Mother Whose Throat Was Slit By Partner To Write To Him Whilst In Prison (2015)
- Mother Who Tries To Kill Her Baby Allowed Contact, Whilst Thousands of Competent Mothers Are Denied The Same Right (2013)
- Maypole Women: Barriers To Sharing Care (2015)
Researching Reform 
Unfortunately this gives the green light for malicious social workers to deny contact to parents who have committed no crime but who cannot engage with aggressive social workers who threaten to take their children !
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Thanks for your comment, FA. This latest development, to my mind, is good as it highlights the use of common sense over established customs that have no place in real world dilemmas. But, as it always the case, it doesn’t address the underlying issues, one of which is service quality and another, the onerous task of showing abuse when no tangible evidence is present at any given moment in time. The system has to reform from the inside, out, and that includes upping the level and quality of training and materials used to assess families.
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A remarkable analysis! So much was written at the time of the passing of s11 of the C&F Act that the ‘presumption’ was very weak and in no way changed or ‘trumped’ the Paramountcy Principle. Now it appears that the nay-sayers have dubbed it the ‘Contact at all costs’ presumption. I wonder what has changed!?
The draft PD12J is a fundamental attack on the sovereignty of Parliament. I cant quite see how Sir James feels able to overrule a statutory ‘presumption’ OR why he thinks this is needed given the fact that the ‘presumption’ under s11 is in relation to ‘involvement’ and is already subject to being overruled where ‘involvement’ can be seen to be not in the child’s best interests. All that is needed is ‘evidence’ – although that woudl appear to be superfluous under this draft PD12J.
What we have in this document is the removal of the paramountcy Principle and its replacement with a new ‘trump card’. If the ‘controlling’ parent would be ‘harmed’ from allowing contact then no contact will take place. Its useful that they use the definition of ‘harm’ from s31(9) of the 1989 Act – which includes impairment of health or development. I can almost hear the cries from these controlling parents that they just cant cope with that ‘horrible man’ seeing their poor little children. If the parent can persuade the Court that they just cant face contact then none will take place. So, the ‘rights’ of parents trump those of the child !! Remarkable – and very impressive lobbying from Women’s Aid
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Thanks for your comment, Paul. The Paramountcy Principle though, refers to a child’s wellbeing being placed as the paramount consideration in every case. There was a time when Fathers’ Rights groups specifically called for a presumption of 50/50 shared parenting, which the government didn’t agree to but did offer a concession by amending S.11 of the Children and Families Act to bolster the importance of both parents in a child’s life where appropriate. There is always going to be room for dishonesty in human interactions, but I do think that this measure represents a common sense approach. It isn’t saying contact won’t be considered, it simply says, contact where abuse is present should be examined more closely. We don’t even know how this is going to work in practice. I still think this development doesn’t address the heart of the matter, which is the need for excellence in training in this sector with a much better network for sharing current science and research. Still lots to do.
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Hi Natasha. I do find it remarkable that so many commentators fixate on issues such as ‘Father’s Rights groups specifically called for a presumption of 50/50 shared parenting’. s11 of the 2014 is a very long way indeed from that. If you read Lucy Reed’s blogs you’ll see that she has asked questions that it appears Cobb LJ did not about the evidence base for WA’s assertions. This evidence base appears to be a self selected survey of 90 women who are known to WA.
You also suggest that this is a common sense approach. If you look at the definitions of domestic violence and abuse it is hard to see how parites who are in the Family Court DONT meet the wide criteria extracted from the Government by WA. You’ll also see that in the PD all that is needed is an allegation of abuse AND the other parent at risk of suffering harm. So what is highly likely is a controlling parent denies contact and then claims that allowing the excluded parent to see the child will put them at risk of suffering emotional harm. As drafted that assertion would superced s11 (2) of the 2014 Act. I regard that as unlawful. Do you?
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Hi Paul, I don’t agree with your interpretation of the PD, especially as risk of harm needs to be proved. My concern is not the PD, or the assumption being challenged, but the level of competence involved, in any decision about domestic violence. And it cuts both ways: a parent who is guilty of violent behaviour can be exonerated through poor assessment, just as an innocent parent can find themselves found guilty of violence they never perpetrated.
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And what exactly, was wrong with the fathers who wanted 50/50 custody? Do you really all hate men that much that you would deny innocent children THEIR GOD GIVEN RIGHT to have access to their fathers; and all this because you want the females to have all the control, money and decision making authority no matter what? Even in the case were the female was obviously the very bad parent?
unbelievable!
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Exactly so, Paul. Well said.
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This ‘presumption of contact at all costs’ must have passed me, and thousands of others, by. I’ve never heard of it. Certainly, Father’s groups pressed for a presumption of 50/50 contact as a basis to work from but we certainly never got anywhere near it in practice. Only recently I have been trying to help a mother who has never done anything to harm her child (and has never been accused of doing so either), but she has been banned from seeing her only child until he’s 18. And this was by a woman judge in the High Court. Where was this ‘presumption of contact at all costs’ there?
I’m sorry, and I know I’m getting more cynical by the year, but this seems to me to be ‘fiddling while Rome burns’. Fiddling the figures. Fiddling the facts. Fiddling the reality. The whole system seems to me to be rotten and needs a total overhaul. Get juries in!
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Hi Roger, thanks for your thoughts. Yes, the term itself is new to me too, although I think most of us know it as a policy decision which says that even where violence and harm exist, as long as it can be managed then contact must take place. The reality of this policy has been awful for genuine victims and children affected. But again, it all comes down to sound assessments, a truth none of us can ignore.
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Hi Natasha – what we have in s11 is most definitely NOT ‘a policy decision which says that even where violence and abuse exist….contact must take place’. It is for the other party to show that contact is not ‘in th best interests of the child’. Clearly that’s not sufficient so now we need to elevate the controlling parent to a special status because they may suffer ‘harm’ and that overrules the statutory will of Parliament.
Threshold is a massive problem for DV cases. What exactly is a genuine victim? The Cross Governmental definition includes psychological, emotional, financial abuse. But what is the ‘threshold’ for determining such abuse? No doubt it will be interpreted individually and inconsistently by each Court.
Under this system EVERY case will be a DV case. We will certainly be assisting excluded parents (mainly dads) to understand that contact denial fits the Cross Governmental definition of DV under the category of emotional and psychological abuse. As men make up 70% of applictions then this fact can be raised at the point of aplication and a claim for Legal Aid as a victim of abuse can be made if the Means and Merit tests can be satisfied. There is however one problem with this. It seems that even making applications to the Family Court are a form of domestic violence! So it appears that using a lawful means to defend the rights of the child under UNCRC Article 9 can be trumped by allegations of DV by the controlling parent. Clearly the Courts are powerless to prevent these terrible men seeking the help of the legal system – unless of course you consider S91(14) of the 1989 that enables a Court to prevent such applications
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Paul, you’ve misunderstood me. I wasn’t suggesting S.11 said this. I stand by my point that lots of mistakes are made and will continue to be made on both sides of the equation unless training is improved.
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That’s an interesting point but not entirely at the heart of the issues. This draft PD seeks to specifically set aside the will of Parliament as expressed through s11 of the C&F Act. The legislation provides for the ‘presumption’ to be challenged – with evidence. Paragraph 4 of the draft states
‘Where the involvement of a parent in a child’s life would put the child OR OTHER PARENT AT RISK of suffering harm……the presumption in Section 1(2A)…shall not apply’. I appreciate that this is NOT a change to the Guidance but the increased attention it will attract means that the issue should be carefully reconsidered.
On the training issue I’m sure you’ll appreciate that Women’s Aid will put themselves forward as the ‘best man for the job’. This cannot be a balanced view as their remit is the protection of women and children not ALL victims of DV.
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Hi Paul, I think balance is important and I would hope other consultants who will also take part in this consultation (there will be one), will look to protect all victims.
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Reblogged this on World4Justice : NOW! Lobby Forum..
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Reblogged this on Musings of a Penpusher and commented:
This needs to be circulated and seen by as many people as possible.
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What nonsense to write that “FAMILIES will no longer have to suffer the indignity, and ongoing damage, of prolonged abuse through child contact” when you actually mean mothers. Presumably, stating “mothers” would make it too obvious that this was just yet more special pleading designed to make it easier to further exclude fathers after divorce or separation. Just a minor example of the insidious, snide language used in the gender war against fathers!
I remember a report from Harry Fletcher back in the 90s that stated, in passing, that 75% of Family cases involved allegations of domestic violence but only 25% of cases subsequently resulted in adverse findings of fact. Those of us who have experienced the ludicrously low standards of proof in the “Family” Courts will readily understand that, effectively, that meant that the majority of allegations were completely false and strategic in nature. No-one was interested then and clearly they aren’t now.
See http://www.pinktape.co.uk/equality/nineteen-child-homicides/ for a (relatively) open-minded examination of Women’s Aid so-called “Report” – Nineteen Child Homicides.
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Excellent and very well put! “Facts are stubborn things”
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Hi Natasha,
You may be interested in the below op-ed published in the Omaha World Herald on 14/12/2016.
The writer Chris Johnston is past chair of the family law section of the Nebraska State Bar Association and has written extensively on shared parenting. As everyone who writes about the problems of family courts eventually realizes, how domestic violence is understood and treated by those courts has a big impact on custody and parenting time decisions.
In consequence, Johnson penned a piece pointing out the obvious – that, due to often false and misleading claims by the domestic violence industry, DV is poorly understood. More to the point, although men are half its victims or more, they receive next-to-no services. And since male victims are stiff-armed by the DV system, so are female perpetrators. Let a violent woman try to find help for her problem and she’s likely to be told she’s a victim of an evil patriarchy that only wants to control her.
Johnson’s piece is balanced and fact-based. It’s a plea for justice for male victims of DV and for better understanding of intimate partner violence. While the jurisdiction is Nebraska I suggest that the underscored issues mirror the situation in the UK and other countries..
http://www.omaha.com/opinion/chris-johnson-nebraska-must-address-gender-bias/article_8f217651-0bcf-5fb4-859a-c845b65df6ba.htm
Quote
“The Nebraska legal system suffers from widespread gender bias against men. While gender bias against fathers in family law cases is well documented, anti-male bias in other areas is less well known.
According to the largest-ever review of domestic violence research, women and men abuse their partners at comparable rates. The “Partner Abuse State of Knowledge” project found 28.3 percent of women perpetrated domestic violence compared with 21.6 percent of men.
The study also found that men and women are victimized at comparable rates. Overall, 23 percent of women were assaulted by partners at least once in their lifetimes compared with 19 percent of men.
Across studies, 40 percent of women and 32 percent of men reported expressive aggression (verbal abuse or emotional violence in response to some agitating or aggravating circumstance), while 41 percent of women and 43 percent of men reported some form of coercive control.
These findings are important because research shows judges are much more likely to issue protection orders to women than men, impose greater restrictions on male defendants and defer cases of male victims.
Men are treated more severely at every stage of the prosecution process, particularly regarding the decision to prosecute, even when controlling for other variables.
Federal law requires domestic violence shelters to provide equal services to male victims. However, no Nebraska domestic violence shelter of which I am aware accepts them. Female victims are given food, housing, counseling and financial assistance in a secure shelter for an indefinite period, but male victims often receive a voucher for a single night’s stay in an unsecured motel room with no additional services.
Sexual violence shows similar patterns. An article published last month in the journal “Aggression and Violent Behavior” reported that men and women commit sexual assaults at comparable rates. The article noted that when female abusers are reported, they are less likely to be investigated, arrested or punished compared to male perpetrators.
According to the article, “female perpetration is downplayed by those in fields such as mental health, social work, public health, and law. . . . Stereotypical understandings of women as sexually harmless can allow professionals to create a ‘culture of denial’ that fails to recognize the seriousness of the abuse.”
This disparate treatment extends to other criminal cases, as well. A 2012 study by University of Michigan law professor Sonja Starr examined gender disparities in federal criminal sentences.
This study found that, after controlling for the arrest offense, criminal history and other variables, “men receive 63 percent longer sentences on average than women,” and “women are . . . twice as likely to avoid incarceration if convicted.”
These disparities also occur in Nebraska state courts. In one recent case, a 25-year-old female teacher was sentenced to four to five years in prison for having sex with a 15-year-old male student. That same year, a 23-year-old male teacher was sentenced to 20 to 30 years for having sex with a 14-year-old female student.
In two other recent cases, a 29-year-old woman was sentenced to three to five years for having sex with a 15-year-old boy, while a 29-year-old man was sentenced to 18 to 25 years for having sex with a 14-year-old girl.
Nothing in these cases explains why the men involved should have received sentences that were 500 percent to 600 percent longer than the women did for comparable crimes.
Gender bias against men is endemic in our legal system. The gender disparities in family law, domestic violence and criminal cases are so extreme they suggest these laws, as applied, violate the equal protection guarantees of the United States and Nebraska constitutions.”
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As I’ve said, the whole system needs a total overhaul. There is no justifiable reason why men should receive between 500 and 600 per cent longer sentences than women for what are basically the same offences. But neither should women face losing their children for reporting abuse by their (male) partners.
I really would like to see juries brought in to judge on family law cases. These juries should be made up, in these cases, by six men and six women. To rely on one judge, often relying on ‘evidence’ that is hearsay, is unfair on the judge and unfair on the litigants. I believe it is a constitutional right to be heard by a jury. I think this may be a way forward, and I will be campaigning relentlessly for it if I can verify the facts and where this argument stands up legally. Please, watch this space! We may need you!
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Hi Natasha,
You may be interested in these two telling comments.
The writer is an American lawyer
https://nationalparentsorganization.org/blog/23253-new-court-rule-further-marginalizes-british-dads-guardian-enthuses
New Court Rule Further Marginalizes British Dads, Guardian Enthuses
January 23, 2017 by Robert Franklin, National Board of Directors, National Parents Organization
The battle against children having relationships with their fathers just got a huge boost in Great Britain (The Guardian, 1/20/17). Now, this being The Guardian, it’s a bit difficult to know exactly what senior family judges actually decided and what’s just sloppy reporting. Still, this bodes ill.
In a nutshell, it appears that any allegation of domestic violence by a mother against a father will be used to prevent him from having contact with his children.
“Senior judges are taking steps to end the presumption that a father must have contact with a child where there is evidence of domestic abuse that would put the child or mother at risk.”
So, based on some quantum of evidence, fathers, but not mothers against whom there is a claim of DV will no longer have the right to contact with their children. Now, I’m reasonably certain that the new rules will be written in scrupulously gender-neutral language. But, even assuming that to be the case, the article makes it clear that the impact of the rules is meant for fathers because fathers are understood to be the sole perpetrators of domestic violence.
“The changes include a demand from one of the most senior family court judges for all the judiciary to have further training on domestic violence and to act to ensure women and children are protected…
[Mr. Justice] Cobb called for judges to be more alert to how violent men could use the access within the courts to assault their former partners, putting forward a proposal for courts to consider more carefully the waiting arrangements before a hearing, and arrangements for entering and exiting the court building.”
Notice that there is not a single word, either in the article or in the various judges’ comments, that would suggest that mothers commit domestic violence against either their husbands or children. Not. One. Word. So, however the new rules may be worded, the message is clear: the targeted parent is Dad and pretty much any “evidence” will be sufficient to deprive his child of any contact with him. And of course, whatever the message, the rule change comes against a backdrop of a culture that has yet to admit that 50% of domestic violence is committed by women.
What does the article have to say about who commits violence against children? Not. One. Word. Of course by far the most common perpetrator of abuse against children is the child’s mother. Add an unmarried boyfriend and the tendency becomes even more pronounced. So, in the United States, the Administration for Children and Families routinely reports that about 40% of the abuse of children is committed by mothers acting alone and about 60% is by mothers acting alone or with “another,” usually a boyfriend.
My guess is that similar statistics hold for the U.K. So the fact that the new rule is aimed squarely at fathers is significant. It’s targeting the wrong parent and it’s doing so for the purpose of further marginalizing fathers in the lives of their children. Those are the only conclusions I can draw given that the new rule is so dramatically at odds with everything we know about the abuse of children and their need for fathers.
And of course the rule was motivated by one of the most virulently anti-male/anti-father organizations in the U.K., Women’s Aid. Much like domestic violence organizations in the United States, Women’s Aid routinely campaigns against fathers having contact with their kids. (Keep in mind that fewer than one-third of the children of divorce in the U.K. have any form of meaningful contact with their fathers. So we might think that British dads are too marginalized to begin with, but for Women’s Aid, any father-child contact is too much. So what, you may ask, was their evidence that demanded the further marginalization of fathers in the lives of children?
“The reforms are to be introduced in the family courts after campaigning by the charity Women’s Aid, which identified that 19 children have been killed in the last 10 years by their violent fathers after being given contact with them by judges.”
Yes, an average of two children per year for the past 10 years have been killed by their fathers. Needless to say, that’s a terrible tragedy for those kids and their families. We all mourn their untimely deaths.
But we also must question whether their deaths constitute a crisis that demands that the relationship of all divorced fathers with their children depends entirely on allegations of abuse by aggrieved mothers. To give a bit of perspective, there are about 120,000 divorces in Great Britain every year, involving about 100,000 children. Over a 10-year period, that would be about one million kids of divorce. Women’s Aid managed to identify 19 kids out of one million who met a tragic end at the hands of their fathers.
And how many died at the hands of their mothers during that same time? No one will be surprised to learn that neither Women’s Aid nor The Guardian is saying. But this website tells us about the answer to that question in the United States. Based on ACF figures for 2008, 70.8% of children killed by a parent acting alone or with another non-parent were killed by mothers. Again, I doubt that the data in the U.K. are much different.
So the new rule aims at fathers who are far less likely to abuse or kill their children than are mothers. Make sense?
I’ll write more about this scandalous development and the utterly unprincipled behavior of Women’s Aid and The Guardian next time.
https://nationalparentsorganization.org/blog
New Rules to Remove Dads from Children’s Lives, Diminish Right to Due Process of Law
January 25, 2017 by Robert Franklin, National Board of Directors, National Parents Organization
Continued from Monday.
Last time we learned that British family court judges are now to be “guided” by a new rule imposed by senior judges, specifically, Justices Cobb and Munby (The Guardian, 1/20/17). That rule will prohibit contact between parents and children when the parent is alleged to have committed either domestic violence against a spouse or abuse against the child. What happens if both parents allege DV or child abuse, neither the Guardian article nor the new “guidance” says.
The “crisis” that led to the new rule is the revelation that, over a 10-year period, 19 children were killed by their non-custodial fathers. As I said on Monday, that’s out of a total of about 1 million children of divorce during the same time. Needless to say Women’s Aid that pushed for the rule is silent on how many children were killed by their mothers during the same time. If the U.K. is like the United States, the number is about 2 ½ times that of children killed by fathers.
But of course neither the judges nor the Guardian nor Women’s Aid has a word to say about such an inconvenient truth.
So what type of domestic violence can be alleged to deprive a child of its father for all time?
“Family court judges should be sure that they understand the new offence of coercion [controlling or coercive behaviour in an intimate or family relationship],” [Mr. Justice Cobb] said.
As we know, “controlling or coercive behavior” covers a multitude of sins. The domestic violence establishment long ago decreed that, for example, “financial abuse” is as much of a crime as is physical abuse. So a man who repeatedly asks his wife to spend less on shoes or to stop spending so much time with the crack addicts down the street isn’t a sensible husband who cares about his wife’s health and his family’s bank account. No, he’s a violent man.
As of now, he’s a violent man who must be turned out of his children’s lives.
Does Justice Cobb or The Guardian mention that “women are more likely than men to be aggressive and controlling towards their partner, according to a study” conducted by Professor Elizabeth Bates of the University of Cumbria (The Telegraph, 6/26/14)? They do not. After all, Women’s Aid has convinced senior judges that domestic violence and child abuse are acts done by men to women and children. So the idea that women are more controlling, like the idea that women are more dangerous to children, goes unmentioned.
But the new rules governing judicial behavior in family courts don’t stop there. No, indeed. Justice Cobb went on:
“By this report, … I hope that positive steps can now be taken to address in the family court the problem, long since addressed in the criminal court, of the alleged victims of domestic abuse being directly questioned by their unrepresented alleged abusers.”…
The Ministry of Justice has indicated – following the articles in the Guardian and questions in parliament – that it is going to change the law to enforce a ban on direct cross-examination.
So, in the near future, a man whose wife claims him to be an abuser, will have no right to question her on the matter in court. Consider that yet another blow to due process of law delivered by the domestic violence industry and eagerly seconded by male-dominated legislatures and courts.
Now, Justice Cobb’s quotation likens the situation in family courts to that in criminal courts. To say the least, that’s a false comparison. Why? Because defendants charged with criminal conduct by the state usually have a right to an attorney. So in criminal courts, the prohibition on the defendant cross-examining his accuser isn’t much of a problem because he has his lawyer to do it for him.
But in family court, no one has a right to an attorney and, as is well known, the great majority of fathers in family courts don’t have one. That’s usually because they can’t afford the fees and, since there’s no right to an attorney, one won’t be provided to poor fathers by the state. So what Justice Cobb presents as just an extension of a criminal court rule to family courts is in reality anything but.
Taken together, the two new rules constitute a slam-dunk winner for any mother who finds the presence of Dad in his children’s lives unappealing. (Recall that the British counselling group Relate found that “One in three separated mothers think their children’s fathers should have no say in their upbringing…” (Daily Mail, 1/7/14).) First, all it will take is an allegation on her part to get him kicked to the curb and, if he wishes to demonstrate his innocence, he’ll find he can’t. If he can’t afford a lawyer, he’ll have to sit silently while the woman who wants to take his kids testifies to anything she wishes, safe from any cross-questioning by him.
Finally, I must mention the entirely scurrilous “reporting” on this development by The Guardian. In an 800-word article, reporter Sandra Laville never managed to quote a single person who questioned the new rules. She didn’t pick up the phone and talk to a fathers’ rights advocate, a children’s rights advocate or a lawyer who might have had an opinion on the outrageous diminution of due process of law based on an entirely trumped-up “crisis.” Her enthusiasm for that blow to a hard-won legal right Laville makes no effort to disguise. What else can we conclude from her patent violation of the most basic rule of journalism – get both sides of a story?
If Laville’s article is any indication, it’s no surprise that Guardian readership has plummeted 46 % in just six years. That leaves its circulation next to the bottom of all British national dailies. Maybe the British don’t have much tolerance for The Guardian’s invariable misandry.
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