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Thursday 19 December 2019

CASE FILE • STATE V FAMILY

Double-dealing

Mothers are being punished for failing to protect children from domestic violence, then ordered by the same courts to hand their children over to their abuser

By LOUISE TICKLE

It’s a scenario that Louise Haigh MP calls “Kafkaesque”, and it goes like this. Social workers tell a mother to leave her abusive partner and keep the kids away from him. He’s so dangerous, they tell her, that if she doesn’t, she risks her children going on the child protection register – or even having them taken into care.

Somehow, she extricates herself from the relationship and finds a place of safety. Everyone breathes. Children’s services step away.

But then she finds herself in the family court anyway, because her ex has made an application to see their children. The same court that could have ordered her children into care, now orders contact. The social workers fall in line behind the court ruling.

Jennifer Grey* remembers clearly the day she was phoned by social services and told to “immediately” stop her son Jack’s contact with her emotionally abusive ex. It came as a relief – she had escaped the relationship and worried for her child during his time his dad.

The reason for the social worker’s phonecall, Grey soon learned, was that another of her ex’s children had alleged he had beaten her. A criminal prosecution ensured. He was found guilty of that assault, but not of other allegations relating to Jack that had emerged during the investigation, despite the six-year-old boy being required to give evidence at the trial.

The conviction did not however stop him pursuing a new application for Jack’s time to be shared 50/50 between them. “He even maintained that if I didn’t give him access he would kill him, and he would do [that] by exhaust fumes in the car… he showed me the hose in the boot,” she recalls. But Grey says the court insisted that Jack was entitled to a relationship with his dad.

Her ex was granted two hours contact per week, so long as it was supervised by the paternal grandmother. “Jack didn’t want it. Some afternoons it would take me an hour to get him in the car,” she says.

Children’s services had by now washed its hands of them both. “Throughout all this we had no help once social work closed the file and walked away,” Grey says. That the family court gave her ex any contact at all after he had been convicted of beating his daughter “is the bit that gobsmacks everyone,” she says with a weary laugh.

Haigh, who has been campaigning against injustices to women in the family courts, says women are living in terror that their children will be harmed as a result of contact with proven domestic abusers – but they’ve been left with no choice but to deliver their children up to a man they were only recently told by social workers is so risky that he mustn’t come anywhere near the family home. “It is an impossible situation.”

“The honest truth is that if that’s what the court is telling them [to do] they will be in breach if they do anything else.”

Haigh has been told by constituents that their children have had to be physically dragged from their home to comply with contact orders: mothers are terrified that if they don’t, they will be seen as having “alienated” children from their father, and residence will be switched by the family court to the parent who is alleged – or who has even been proved – to be abusive.

“It doesn’t make sense, for the child’s welfare or the child’s safety,” says Haigh. “Without a shadow of a doubt there will be countless children abused following court-ordered contact with a parent that the child doesn’t want to have contact with… and the child’s voice is so hidden and so ignored.”

The apparent double-dealing comes down to two schools of thoughts in different parts of the system. On one hand, the fact that domestic abuse causes harm to children, even if they are not directly targeted, is well documented. Witnessing domestic abuse, or living in a home where it takes place is now commonly used by local authorities to form part of the “threshold criteria” by which social workers apply to a family court to take a child into care – or even to have them adopted. Half of child protection cases in some areas are triggered by domestic violence.

On the other hand, if domestic abuse is an issue in a private dispute between separating parents, it is also authoritatively argued that there can be benefits to a child spending time with a parent who is a perpetrator of domestic abuse.

Freda Gardner, consultant clinical psychologist and expert witness to the family courts, says that for some children, safe contact with a parent who has been shown to be abusive “is essential if they are to achieve psychological recovery”. But she emphasises that contact must be supervised and monitored.

“Children ask to see their father for a variety of reasons including to enjoy the positive aspects of the relationship they’ve experienced, to know they are loved, that they are not to blame, that their father is okay,” Gardner explains.

“Children I have assessed have repressed the experience of witnessing domestic violence and have idealised a lost parent. This can be very harmful for a child and interfere with psychological recovery. Spending time with that parent means that their idealisation is challenged by reality.”

The apparently contradictory messages about contact with previously abusive parents can certainly feel like double-dealing. At a protest against the system held outside Parliament in October, one woman physically shook as she described the terror she and her child felt before drop-offs. Another flushed red and tears slid down her face as she told of the misery of the days following court-ordered contact, trying to comfort a child who returned home distressed. As a result, women’s groups say that it is not only the ex-partner who perpetrates abuse on themselves and their children – the family justice system does too.

Jessica Asato, head of public affairs and policy at domestic abuse charity SafeLives says the system is toxic. “Women are told that they have to be very truthful [to social workers] about the abuse and how it’s affected them. Then when they go to the family court, they have to pretend they’re fine, otherwise their children might be taken away as they’ll not be seen as having the emotional resources to give them a stable upbringing,” she says.

“Women have to be traumatised enough to prove that abuse happened and then not traumatised at all in order to be able to keep their children.”

There is of course a diametrically opposed perspective: That of fathers who say they are unfairly accused of domestic abuse. Bob Greig is co-founder of the not-for-profit organisations OnlyDads and OnlyMums, which supports parents through family breakdown. He says that his experience of listening to fathers does not support domestic abuse campaigners’ complaints that out-of-touch family judges operate a principle of “contact at all costs”.

Instead, he regularly hears of men losing the relationship with their children because of months banned from unsupervised contact while investigations into alleged abuse are carried out. Then, he says, there are often interminable delays to reach a final hearing because of an overstretched family justice system.

But Greig is at one with women’s charities in not believing that family courts are always very good at working out what has really happened in a relationship, and whether or not future contact will be safe. He offers an example of a father he knows: “He was boasting to me that he’s taken his ex partner back to court over 30 times for increased contact,” he says. “And what the court I don’t think has truly picked up is that he’s a perpetrator of domestic violence, I’ve seen it with my own eyes. The police know it, CAFCASS know it, and yet he’s allowed to back and forth to court.” Greig sighs in frustration.

“So when women’s groups say there are cases where men use the court as a vehicle for their ongoing abuse, we’d be lying if we said this didn’t happen. And I have no idea why the courts are so hopeless at spotting it.”

There’s another catch. Domestic violence, particularly when it involves coercive control and emotional abuse rather than physical harm, is very difficult to prove in court. Jenny Beck is a solicitor and partner at Beck Fitzgerald, who in May co-authored a letter to the justice secretary signed by over 30 leading family lawyers and academics calling for a public inquiry into how family courts dealt with domestic abuse. She observes that evidence is often restricted to five or six examples. This might work for allegations of violence, but it actively militates against someone trying to prove a slow-burn pattern of behaviour constituting emotional abuse or coercive control.

“The adversarial [legal] system then makes the situation much worse,” she says. “Stick a narcissist appearing in person in the box and he loves every minute of it. Stick a woman suffering post-traumatic stress in the box and you won’t very easily get the best evidence of what happened to her.”

Campaigners’ also question some judges’ understanding of domestic violence. They were vindicated earlier this month, when it was discovered that family court judge had ruled that a woman alleging domestic abuse in a contested child contact case had not been raped by her ex-partner because she had not physically fought back. The ruling was later overturned by the Court of Appeal.

Judges almost never give interviews but at a public event last year on these issues, high court judge Mr Justice Keehan said that judges would always strive to “make the best assessment that you can on the advice you have available to you and the evidence.” But he acknowledged weaknesses. He pointed out that when a parent comes to court without legal representation – increasingly the case since legal aid was drastically reduced – they often struggle to make the best case, and also acknowledged the obvious: That “there is always a risk that [a decision] might be wrong, because judges are only human.”

For Grey’s young son, contact with his father deteriorated to such an extent that he eventually refused to go. He has his own lawyer now, which Grey pays for, and she says the court takes much more notice of what that lawyer says than of her. The court finally agreed that there should be no face-to-face contact – but the emotional cost to Grey and her son has been immense.

Despite her experiences, Grey agrees that “the default position has to be that mum and dad are entitled to equal contact with their kids. I think that’s right – there are a lot of really good dads out there.” But she feels that the family court system is not fit for purpose.

“Over the years I have been completely exhausted by court. He has used the legal system to torture and torment me,’ she says.

“And I do think it is contact at all cost. That’s certainly been my experience. They’ve had to force contact where it shouldn’t have been. And I felt throughout the whole process that everything’s been weighted against me.”

• To protect identities, some details have been changed.