On the 4th of September the BBC aired a shocking documentary telling the story of mothers fleeing the UK with their children, claiming that the Family Courts were forcing their children into contact with their abusive fathers.
The documentary coincided with research published by the University of Manchester highlighting serious health problems suffered by mothers who accuse their partners of domestic abuse. The mothers claimed that their health problems were caused by biased family court proceedings.
The study, involving 45 mothers and their 77 children, found that dozens of the children had been forced into contact with abusive fathers, most of whom had spuriously claimed that the mothers had sought to alienate the children against them.
The BBC investigation also found that five mothers had died after being accused of parental alienation by abusive fathers, some taking their own lives, and one having a heart attack.
But is the Family Court really biased against mothers, in the way that it orders contact after preferring fathers’ claims of parental alienation over mothers’ claims of domestic abuse?
The first thing to say is that the Family Court does of course get things wrong from time to time. No system is perfect, and judges are fallible human beings who can make wrong judgement calls.
But the system is not complacent. It is always trying to improve. It has, for example, quite recently taken steps to improve how it deals with cases involving domestic abuse allegations, and new proposed guidance for courts is in the pipeline on how to respond to allegations of alienating behaviour (more of which in a moment).
And the research has to be taken in context. Whilst any mistake by the Family Court can obviously have extremely serious, and sometimes tragic, consequences, it must be remembered that every year the Family Courts in England and Wales deal with over 50,000 private law children cases between parents, involving some 80,000 children.
Family Court judges often have a very difficult task, but in the vast majority of those cases they do not make decisions that are obviously wrong, even if one of the parties may believe that to be so.
And the law that those judges have to apply contains no bias – it is written in terms that apply equally to both parents.
So why might the courts be accused of bias?
In a press release published by the University of Manchester lead researcher Dr Elizabeth Dalgarno says that the study’s findings can be explained by lack of training for judges and court professionals around coercive control and domestic abuse, and a culture of misogyny and woman and victim-blaming which is prevalent in society.
These points may have some validity, but the first is being address by improved training for judges, and the second, if true, is obviously a much wider problem that cannot be blamed upon the Family Courts.
The BBC says that researchers studying the Family Court say they are concerned about the increasing number of claims of parental alienation, which Dr Dalgarno describes as “a pseudoscientific belief system designed to control women and deny abuse”.
But the family justice system is already making it clear that parental alienation is not a syndrome capable of being diagnosed, but rather a process of manipulation of children perpetrated by one parent against the other, through what are termed as “alienating behaviours”. It is fundamentally a question of fact.
As the President of the Family Division has said: “the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
And as mentioned above, the Family Justice Council (‘FJC’), which monitors the family justice system, has drafted guidance to assist the Family Court on responding to allegations of alienating behaviour. The guidance, which is presently out for consultation, focuses on dealing with evidence and finding facts.
Of course, no improvements can guarantee that mistakes are no longer made, but the FJC expresses the hope that the guidance “will contribute to increased understanding, good practice, and ultimately good welfare outcomes for children.”
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Domestic abuse is a term that is commonly used but, as we will see, also commonly misunderstood.
The misconception is largely due to changes in our understanding of the scope of domestic abuse, as we have learned more about the nature of abuse in family relationships.
And even the terminology has changed, as that understanding has grown.
So, what is the definition of domestic abuse?
Until relatively recently the term domestic abuse was hardly used. Instead, we referred to domestic violence.
The term domestic violence is still in common usage, suggesting that the problem relates only to one party using or threatening physical violence against the other.
But while domestic abuse often involves one party using or threatening violence against the other, that is only part of the story.
Abuse can be far more subtle, and insidious, but no less destructive towards the lives of its victims.
So just what types of abuse are covered by the term domestic abuse?
Perhaps surprisingly, there was no official definition of domestic abuse until the passing of the Domestic Abuse Act 2021.
For the first time, the Act set out a statutory definition of domestic abuse. And it covers much more than just violence or threats of violence. We explored this guidance on domestic abuse at the time.
The definition begins by stating that behaviour of one person towards another is domestic abuse if the two people are aged 16 or over and are personally connected to each other, and the behaviour is abusive.
“Personally connected” includes those who are married, are civil partners, or are or have been in an intimate personal relationship with each other.
It should also be noted that behaviour may be behaviour towards another person even though it consists of conduct directed at someone else, such as the other person’s child.
Behaviour is “abusive” if it consists of any of the following:
It does not matter whether the behaviour consists of a single incident, or a course of conduct.
The meaning of physical or sexual abuse and violent or threatening behaviour will be readily understood, but the other types of abuse require a little more explanation.
Controlling or coercive behaviour can take many forms, but is generally used by the abuser as a means of making their victim submissive towards them. Examples of such behaviour range from constant belittlement to taking over aspects of the victim’s life, for example by restricting where they can go, such as preventing them from seeing friends and family.
Economic abuse is further defined by the Act to mean any behaviour that has a substantial adverse effect on the victim’s ability to acquire, use, or maintain money or other property, or to obtain goods or services. It is, in effect, another type of controlling or coercive behaviour.
Lastly, psychological and emotional abuse covers such things as the abuser constantly placing their opinion as superior to that of the victim, or generally behaving in such a way as to make the victim feel that they are worthless.
It should also be noted that the definition is not comprehensive – it specifically also includes “other abuse”.
As will be seen, the definition of domestic abuse is quite wide, and some victims may not even realise that they are being abused, especially early in a relationship.
It is therefore important that the meaning of domestic abuse be properly understood, so that victims can take steps to protect themselves as soon as possible.
There are various ways that a victim of abuse can protect themselves, including applying to a court for a non-molestation order, or for an order regulating who can occupy the family home.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. Please contact the team to speak to our specialist domestic abuse solicitors.
On the 25th of May 2017 33-year-old hospital worker Emma Day went to collect her six-year-old daughter from school. Unbeknownst to her, the child’s father, Mark Morris, was waiting for her outside the gates of the school, armed with a kitchen knife.
A confrontation occurred, and Morris stabbed Ms Day multiple times, slashing her neck and puncturing her heart and lung. Ms Day died of her injuries.
And what had led to this awful scenario?
Simple: Nine days earlier Ms Day had applied to the Child Maintenance Service (‘CMS’) for child maintenance from Morris. Morris had repeatedly threatened to kill Ms Day if she did not cancel the claim, and on that tragic day he carried out his threat.
Sadly, the dangers that parents face when seeking child maintenance from abusive former partners are well known. It is therefore very welcome that the Department for Work and Pensions, which is responsible for the CMS, has announced new measures to protect parents in such a situation.
Before going through the new measures, we need to briefly explain the two services that the CMS offers: ‘Direct Pay’ and ‘Collect and Pay’.
Under ‘Direct Pay’ the CMS calculates the amount of maintenance that should be paid, and parents make their own arrangements for payments. Direct Pay can be chosen by either parent with the other’s agreement. A £20 application fee is charged for this service (unless waived because of a domestic abuse issue).
Neither parent pays collection fees under Direct Pay.
Under ‘Collect and Pay’ the CMS calculates the amount of maintenance, then collects the payment from the paying parent and pays it to the receiving parent. There are ongoing collection charges for use of this service, payable by both the paying parent (20% on top of the maintenance amount), and the receiving parent (4% taken out of the amount of maintenance). Collect & Pay is generally used in circumstances such as where the paying parent has failed to pay maintenance, or failed to keep to a Direct Pay arrangement, or where one parent does not want the other to know their personal details.
It has been found that the Direct Pay service has been used as a form of coercion and control by abusers. Half of new Direct Pay arrangements are either not sustained or are ineffective, and parents often fail to report non-payment to the CMS, to avoid causing an issue with the paying parent.
Under the new measures survivors of domestic abuse will be given the choice to allow the CMS to move the case into the Collect and Pay service, without the consent of the abusive ex-partner. This will not just prevent abusers from using child maintenance as a form of ongoing financial abuse and control – it will also mean that survivors will not have to have contact with their ex-partner if there is evidence of domestic abuse.
A Bill is currently going through parliament to amend legislation to refuse access to Direct Pay where one parent objects to it on the grounds of domestic abuse, and where evidence of domestic abuse can be provided.
Under other new measures the CMS will have new powers to report suspected cases of financial coercion to the Crown Prosecution Service to help bring abusers to justice, one-to-one support for survivors will be piloted, and domestic abuse training for CMS staff will be improved.
If you are the victim of abuse from a partner or former partner, there are steps you can take to obtain protection, including obtaining an injunction to stop them from molesting you and, if necessary, a court order requiring them to vacate, or stay away from, your home.
We can help you obtain these protections. For further information, please see our page on domestic abuse.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
Rights of Women is a women’s voluntary organisation committed to informing, educating and empowering women concerning their legal rights.
The organisation is based in London and was founded in 1975. They seek to influence policy by undertaking original research, preparing responses to policy documents from Government and other sources. Rights of Women organise conferences on women’s rights, and hold public meetings. They want women’s voices heard at every stage of public policy formulation.
In addition Rights of Women offer free confidential legal advice to women on through their own advice line. Their website contains a lot of useful information and a link can be found here; Link to Rights of Women Website
Rights of Women were recently successful in being granted permission to challenge the evidence requirements often referred to as the ‘domestic violence gateway’ to legal aid in many private family law cases.
The Law Society has supported their challenge (brought by the Public Law Project on their behalf) over the lawfulness of Government changes to legal aid which are preventing victims of domestic abuse from getting legal aid for family cases, even when it is clear there has been violence, or there is an ongoing risk of violence. Rights of Women argue that this is not what parliament intended.
A full hearing is expected before the end of the year
There was an interesting case before the Court of Appeal this week which reminded us of how the Court deals with contact cases, where one parent has been abused by the other. The case I refer to is:
M (Children)  EWCA Civ 1147
If you Google the full citation you will find the full judgement.
In brief; Just because a parent has abused the other, doesn’t mean that they shouldn’t see their children, or rather doesn’t mean that there is value in the children seeing the abusive parent within a format that is safe for the children.
In this particular case;
The mother ‘escaped’ the family home with the three boys on 5 December 2011. She took up accommodation in a women’s refuge. She had been the victim of significant domestic violence over a prolonged period. The two elder boys had witnessed the father’s physical and verbal aggression towards their mother and (more…)