by Sarah Phillimore
On 21 May, despite denying only the day before that it was needed, the government announced it would hold a three-month inquiry into child protection in the family courts, aimed at ensuring the courts work in the explicit interests of the child.
I was initially very concerned to see how its focus appeared to be around allegations identified by groups such as Women’s Aid – that the family courts push contact, including with violent men, “at all costs”, and that this has led to children suffering harm or even death.
That this view can be expressed, let alone apparently uncritically adopted and promoted, as it has been by various journalists and politicians, is a matter of serious concern to me. It is in my view a stark example of the dangers of single-issue campaigns that see everything through a particular lens.
While the energy of the single-issue campaigner may be exactly what is needed in some circumstances of focused urgency, to kickstart a ‘campaign’ against an entire system on this inaccurate and partial basis will lead to no reforms of any merit.
So I was pleased to see the MP Louise Haigh apparently acknowledge the real issues that face the family justice system via Twitter.
“Cuts to legal aid and soaring complex caseloads for dedicated social workers are all part of a family courts system under incredible pressure,” she wrote. “There needs to be the political will and resource to fix the structural problems in order to keep our children safe.”
Two sides of the system
To focus, as Women’s Aid apparently does, on a tiny part of the behemoth of the family courts system throws up immediate problems.
We need to distinguish between ‘private law’ cases, where the court must adjudicate disputes between parents who cannot agree what is best for their child, and ‘public law’ cases. The latter involve the state against the parents: social workers having raised concerns that the children are at risk of significant harm, the court must then decide if the parents will be allowed to raise their child.
Social workers may find themselves called upon to provide reports to the court in both kind of cases. But their statutory obligations regarding child protection are likely to make public law cases their more immediate operational priority.
Claims that the family court is ignorant of or doesn’t care about the impact of violence on children when considering contact are infuriating for practitioners like me.
I do the bulk of my work in contested care proceedings and face – time and time again – difficulties in getting mothers to understand and act upon the concerns about the violent men they repeatedly invite into their children’s lives.
Starkly different accounts
Private law cases with two middle-class parents agonising over the summer holidays may seem a million miles away from the teenage girl, living on the streets with a drink and drug problem, a baby and no one to help her.
But what they have in common is that the problems that get in the way of good parenting are often entirely external to the system they then find themselves in, and that system has only limited time and tools to help them reach a resolution.
Further, a court system operates to rules and procedures around the burden and standard of proof. No one may merely assert the other parent is violent or no good – they have to prove it.
The courts will often be faced with two parents making starkly different allegations against each other, with little by way of corroboration. On these assertions, the courts must decide what is in the best interests of the children.
I have many male clients who found themselves left with nothing but cards and letters once a year on the basis that the mother was in a state of deep psychological distress at the prospect of them having any direct contact with the children. Such orders may be made even when no blame is attached to a father’s conduct.
The courts do the best they can. It is interesting to me that those who call for wholesale dismantling of the family justice system can never tell me with what it should be replaced, and how such conflicting adult accounts are to be reconciled.
What is the real problem?
Family courts are not the arenas for frightened or angry people. An adversarial court system that requires proof is a hard place to be for those who believe themselves to be or who actually are victims of violence.
I quite accept that most of us entering into a relationship do not at the outset start gathering evidence of our partner’s appalling behaviour. One of the real evils of coercively controlling relationships is the very long time it can take to work out what is going on and to gather the resources and courage to leave.
There appears to be widespread public ignorance about how the forensic process operates and how you prove an allegation in court. That is not anyone’s ‘fault’ but it is a great shame more people are not prepared to accept their lack of understanding before diving into the debate.
But the elephant in the room is the removal of resources. Social workers and Cafcass need time and space to conduct investigations, to thoughtfully reflect, and to build relationships with parents. Courts dealing with private law disputes need to offer judicial continuity and swift fact-finding hearings – which currently doesn’t happen because we don’t have enough judges or courts.
The removal of legal aid from private law family cases has led to a huge rise in the number of litigants in person, with obvious and serious problems for how cases are managed. This removal was endorsed by Parliament in 2012 with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Research by Citizens Advice in 2015 stated what we all know to be true: “Restricted access to legal aid is one of the biggest barriers to support for victims of domestic abuse in England. In their work helping victims of domestic abuse, only 12% of advisers reported being unaffected by the changes that came into force from April 2013.”
Three months is too short
I would welcome a proper public inquiry and more openness in the family courts. The debate has now got so toxic and divisive that nothing less will do. But a three-month inquiry, hastily announced and at the behest of campaigning groups with axes to grind, and conducted on behalf of politicians who have dismantled legal aid, is an insult. It will achieve nothing.
Three months is just about enough to set the framework for a proper inquiry, to ensure those who conduct it are independent from any single-issue myopia, and can step back and see the system as a whole.
Family judges are well aware of issues of violence and abuse, and well aware of the impact on children. But what the family courts system does not have are the resources to provide anything much above an arena where frightened and angry people come to argue.
I don’t doubt the current system is brutalising and traumatic for the vast majority of those who come to it. What I do take issue with is the offensive and untrue assertions that the problems are based on ignorance. They are not.
Three months is – I hope – long enough to make the truth of my words abundantly clear. What else that time may achieve is sadly, not clear to me.
Sarah Phillimore is a barrister specialising in family law at St John’s Chambers