By Anna Smith*
“Family court is mainly about banging heads together, from what my colleagues tell me,” said the experienced criminal magistrate at our induction session. After this jaw-dropping yet frank comment, he jovially went on to give us a broad introduction to the courts.
During my brief experience in the magistracy, I heard this violent metaphor repeated more than once by other family court magistrates. The horrible irony is that approximately 60% of private law applications in the family courts involve allegations of domestic abuse. The very use of the awful words “banging heads together” indicates that there is an enormous problem with how the family court magistracy regards struggling and traumatised people.
“A good day is when I make things go away,” explained a kindly and well-respected family magistrate during training. I am not sure that would be, for example, a doctor’s approach to treating a patient with a significant illness. I would hope not.
Family court magistrates are trained, within the brief time available, to recognise the outward signs of domestic abuse/coercive control. However, resolving and disposing of matters for the perceived good of the children and/or general court efficiency is paramount. This resolution and disposal is justified to magistrates by the central judicial belief, continually repeated to us during core training, that contact with both parents is crucial for a child’s well-being.
“Do you have a reading list on child welfare?” asked one magistrate during our three days of core training.
“No, we don’t have that,” responded the trainer, who reiterated the following message: all you need to know is it’s really important that children have contact with both parents and that parents work together to make this happen.
So, where is the evidence for this? I am unaware of any mainstream scientific evidence that backs up this very general assertion, especially in the context of domestic abuse. I find it concerning that this is presented as a fact to magistrates. How can we work for the child’s best interests if we receive incorrect welfare information?
“If we know that contact with both parents is so important for a child, does domestic abuse matter?” asked one magistrate. While this was a shocking comment, it was an understandable logical deduction from how matters had been presented to us so far.
It was then explained to us that it did matter, but if someone said they were sorry in court and agreed that it was bad for the child, and we believed them, we could consider granting contact. How on earth is this a safe judgment call for non-professional volunteers to
make, especially given the strong and factually incorrect bias towards contact instilled during training?
However, I was curious. Would the brand-new domestic abuse training day that was compulsory for all magistrates, both those in training and those currently sitting, have something more helpful to say? I went along with the hope that we might be given better information and a different perspective. The trainer, a kind and well-meaning supervising legal advisor, tried their best to instil empathy into the group for the experiences of domestic abuse victims in their home situations and in the courts. They did this through (a) an empathy exercise trying to show us how a domestic abuse victim might feel, (b) showing videos featuring domestic abuse victims who had been through the courts, and (c) clearly showing their own sympathy.
However, I do not recall any domestic abuse victim on video talking about post-separation abuse and fear as a consequence of an unsafe contact order and the impact on the children and their parenting, which seems an important omission. I’m not sure the trainer succeeded in evoking empathy, as most of the group appeared profoundly unmoved; no doubt this varies from training session to
training session. However, it made me consider whether empathy, as well as reasoning skills, should be explored in magistrate selection.
We discussed different forms of domestic abuse/coercive control, and we had an exercise factually identifying them. We followed the story of a fictionalised domestic abuse case through the courts and started by looking at video snapshots of the story behind the case. One of the aims was to get us to look at our biases and see what we thought a “typical” domestic abuse victim looked like and whether we believed them.
“Could they be lying?” mused one member of the group. “I don’t like her,” said another. This was honest discussion, examining biases, which is always valuable.
However, the notion of someone faking domestic abuse claims for their own benefit was troubling to me, as it was so diametrically opposite to my own experience in the domestic abuse field. I understand that the family courts have to consider whether facts can be
proved on the balance of probabilities. But just because something can’t be proved, doesn’t mean that someone is lying. The two things are not the same. Is it always necessary to make that value judgment?
The case being discussed had some very clear markers of coercive control, and the video was paused at strategic points for discussion. What did we think was going on? What were our views of the parties in the case?
“I’m enjoying this–it’s a bit like Cluedo, isn’t it!” said one magistrate. Again, a troubling comment. Why would watching someone’s suffering be like Cluedo? This statement was not challenged by the trainer, though I think it should have been.
We went on to consider court procedural implications. Should there be a fact-finding hearing about whether domestic abuse had taken place? Only if it might alter any child arrangements orders, i.e. if a finding of domestic abuse might show that it was unsafe for a child to have contact.
And this, to me, was perhaps the most worrying part of the day’s training. There was no clear portrayal of the psychological harm to the pre-teen child in the case. They were merely shown in the video as witnessing the abusive parent subtly putting down the non-abusive parent. I would suggest that this is an utterly unrealistic portrayal of the impact of the situation on a child, who in situations of coercive control of this case’s magnitude, is likely to (a) have witnessed/experienced a wide range of disturbing situations; (b) have suffered a whole variety of psychological harms; and (c) be at risk of these psychological harms continuing if contact with the abusive parent continued post-separation. Therefore, it was unsurprising when magistrates became confused when they were told a fact-
finding would be appropriate in this case.
“So first, you told us to have fact-findings. Then you told us not to have fact-findings. And now you’re telling us to have fact-findings again?” queried one experienced magistrate in an exasperated tone, recalling the training they had received over the years.
Most of the group could not understand why findings of domestic abuse, in this case, should restrict post-separation child contact in any lasting way. There was also no proper discussion around the continuing fear the abused parent would doubtless have felt, if they were to let their child continue contact with the abusive parent without any change or acknowledgement of past behaviour, and how it might have affected their own emotional safety, well-being and ability to parent.
Throughout our entire training, the solution for any post-separation fears of the abused parent was no face-to-face contact with their former partner. There was no consideration of the difficulties of shared parenting in the context of domestic abuse. During our core training, I asked about agreed parenting rules and whether they were considered important, especially, for example, in the context of children with extra needs.
“No, we don’t get involved with that,” said the trainer. They paused and thought briefly. “Although I always think that if you can’t agree a bedtime, that’s a bad sign.”
Consistent bedtimes are generally considered important by parents. However, the idea that a victim of domestic abuse would be able to agree on a bedtime with their abusive ex-partner, or indeed, have meaningful parenting conversations in general, is utterly absurd unless that ex-partner has been held accountable for their behaviour and has accepted the need to change. Returning to our domestic abuse training day, I observed a strong instinctive negative reaction from the group upon being told that the options for interim contact before the fact-finding were either (a) supervised, i.e. one-to-one observation in a controlled environment by professionals or (b) none at all. There was anxiety: what if the parent claiming abuse was lying? What about parental rights? Why should the child suffer by losing contact/having contact restricted with the parent accused of domestic abuse? The trainer briefly explained that this policy was due to a report by Women’s Aid; I believe the report may have been Nineteen Child Homicides.
However, there was no proper explanation of the psychology of coercive control; i.e. when a controller loses control or is at risk of losing control, e.g. in the period before a fact-finding, it is the most dangerous time for both the child and the non-abusive parent, as the risk of homicide/suicide is increased. Crucially, this risk is present even if there has been no history of physical violence towards the non-abusive parent or child; this needs to be explained to magistrates, as the case discussed in our training did not involve so-called typical physical violence. If you don’t explain why policies have been put in place, you risk people finding a way around them somehow. Finally, it was revealed that domestic abuse was found to have happened and that the reporting Cafcass officer did not believe the abuser showed enough insight into their behaviour to be granted contact.
This denial of contact confused the group, and I did not sense complete buy-in to this decision. The child in the case was described as being confused and missing their parent; this evoked a strong emotional reaction from some magistrates to the denial of contact. One magistrate, in particular, was utterly appalled by the outcome. In their mind, the child’s needs were not being put first. An explanation of the psychological harms experienced by the child during the relationship and the risk of these continuing post-separation, and any potential homicide/suicide risk, would have been extremely useful here. The recommendation for the abusive parent to attend some kind of domestic abuse perpetrators’ course was greeted with tutting and derision, as these are not currently available.
The use of screens to separate parties in court in cases of allegations of domestic abuse was discussed. One magistrate, who had decades of experience, stated they would not use a screen in their court, as they felt that parties seeing each other encouraged agreement. Their statement felt like quite an astounding one for them to make, and it made me wonder how much domestic abuse training they had taken on board. It seemed like a literal enactment of “banging heads together”. The legal adviser explained patiently that they would not have a choice in the matter.
Hopefully, the domestic abuse training received by magistrates has some impact when they consider non-molestation orders; these were discussed during our core training rather than our domestic abuse training day, which focused on child arrangement orders. However, I believe that the notion of contact as an unquestioned ‘good’ should be discarded from our core training, in order for domestic abuse training to have a more meaningful impact. There also should be discussion of potential post-separation psychological harms of contact to the child. The potential impact of child contact on the domestic abuse victim’s ability to parent and their emotional well-being should be highlighted as well.
To sum up, the child and non-abusive parent need to be regarded as much as possible as a holistic unit to be protected from the abusive parent. Otherwise, there is risk that even if magistrates recognise the potential signs of domestic abuse, they will regard it as irrelevant to discussions around child contact. Worryingly, the publicly available Cafcass domestic abuse guidance has no proper list of post-separation psychological harms to children through contact, nor any meaningful discussion about the difficulties of post-separation parenting with a domestically abusive ex-partner.
*Anna Smith is a former family court magistrate with experience in the field of domestic abuse. Her guest blog provides insights into how domestic abuse training can be presented to family court magistrates. This is her best recollection of her training, and she welcomes comments on any inaccuracies. She has elected to maintain anonymity.
Magistrates’ Association’s Comment on ‘Banging Heads Together and Making Things Go Away’
By Tracy Sortwell, Chair of the Magistrates’ Association’s Family Court Committee
The Magistrates’ Association (MA) is the only membership body and independent voice for magistrates in England and Wales. We exist to support and guide our members and help them be better magistrates. The MA is not responsible for the recruitment and training process for magistrates, although we do work with and influence those who do, and we take domestic abuse very seriously. We are pleased to be able to comment on this blog post to provide additional context and information on the role and function of the family courts and family magistrates.
Magistrates sitting in the family court undergo mandatory training before they sit in court as well as consolidation and continuous training throughout their service. This training is devised and designed by the Judicial College and facilitated locally in the regions and Wales by legal advisers who have been specially trained. The induction ‘core’ training, which ‘Anna Smith’ would have undertaken, is completed in a relatively short time. It is not designed to answer all questions about the work family magistrates do, rather it prepares new family magistrates to be able to participate fully and in accordance with the competence framework as ‘wingers’ in the family court. Each magistrate panel is usually made up of three magistrates sitting and making decisions together: two ‘wingers’ and a ‘presiding justice’ who acts as chair and speaks on behalf of the three. Only more experienced magistrates can be a presiding justice.
During the first year, magistrates are assigned a mentor, who supports them during their first few sittings. They also must undergo regular competence-based appraisals and continuation training throughout their service. We are also encouraged to do self-learning via the Judicial College throughout our whole time as a magistrate. There are regular opportunities for further learning, with local family panels regularly inviting guest speakers from organisations that support victims, such as Women’s Aid. The Magistrates’ Association also provides additional learning opportunities for family magistrates, with regular webinars and learning resources via our website or magazine. In court, new magistrates will sit with experienced magistrates and have the benefit of a legal adviser who will assist them with all relevant legal matters.
It is disappointing to read that Anna Smith is no longer a family magistrate. Her blog reports on her induction and the newly introduced domestic abuse training with an emphasis on the domestic abuse elements of the course related to child welfare and post-perpetrator abuse.
I am an experienced family magistrate, who has assisted legal advisors to facilitate training for a number of years. I have been a mentor and appraiser and have contributed to the Judicial College’s development of family magistrates training. I have no legal qualifications and any references to legal documents have been sourced through the Family Court Bench Book and training undertaken since my appointment. The Family Bench Book is one of the documents magistrates are directed to during their training.
Anna’s blog starts with an outdated and ill-informed comment from someone who should know better. I can’t tell from Anna’s blog who they are or when they made their comments, but regardless, there is no place for that language in today’s magistracy. Some cases can be extremely frustrating, with children’s welfare being pushed to the back of parents’ thoughts as they blame each other for what went wrong. The enormity of a court hearing cannot and should not be diminished. Magistrates also have to make some very difficult decisions with often very vulnerable parents. Sometimes parents will not have spoken or seen each other since the day of separation. Magistrates now have better and more comprehensive training and I would hope and expect that if anyone said anything like this nowadays they would be challenged. The family court’s aim, wherever possible and safe to do so, is for the parties to come together to reach an agreement, but the phrase ‘banging heads together’ – in any court, but especially in family courts, where many cases involve domestic violence and abuse – is completely inappropriate.
When we become magistrates, we swear an oath whereby we agree to ‘do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.’ For all cases we hear in the family court the statutory position is that the ‘child’s welfare shall be the court’s paramount consideration.’ (Children Act 1989 S.1) This also needs to be balanced with various articles of the UN Convention on the Rights of the Child and in particular Article 9. ‘Children whose parents have separated have the right to stay in contact with both parents unless this could cause them harm.’ This in turn needs to be balanced with the 1998 Human Rights Act in particular Article 8 ‘the right to respect for private and family life.’ This is the reason why we are informed during training that unless it is not safe to do so, we should consider granting contact to both parents.
How do magistrates determine whether it is safe to do so? At first hearings, we will be presented with a Safeguarding letter by Cafcass/Cafcass Cymru who will have undertaken background checks on both parents and will have spoken to them. Unfortunately, sometimes the background checks are incomplete, with more information needed from either the police or social services or regrettably sometimes they have not been able to make contact with one of the parents. Cafcass will make recommendations regarding contact with the non-resident parent based on its professional judgement and on the information it has gathered. Magistrates would have to give extensive reasons if they were to go against these recommendations.
The recent domestic abuse training has been delivered to all magistrates regardless of their length of service. This has eliminated gaps in some colleagues’ experience and provided a very useful update for those who have been sitting for some time.
If domestic abuse by either parent is alleged or identified by Cafcass/Cafcass Cymru we identify the ‘factual and welfare issues involved.’ We must consider Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm. ‘The court must ensure that the issues are addressed at the hearing, and that the parties are not expected to engage in conciliation or other forms of dispute resolution which are not suitable and/or safe’.
If the court determines that the alleged domestic abuse will be relevant to ‘any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any Child Arrangement Order’ then we must order a fact-finding hearing. At this stage it would be highly unlikely that there would be an order for interim contact with the alleged abuser. If the alleged abuser is not represented then the court will appoint a qualified legal representative (QLR), an independent lawyer, who will put questions forward on their behalf. The family court does not function to establish guilt nor assign blame, the hearing will determine whether an event (or series of events) was more likely than not to have happened. Our findings on the allegations will be the basis of the Section 7 report, which is a detailed assessment of the case. It will cover the Welfare Checklist, which is the legal list of considerations the court uses to make decisions about children under the Children Act 1989. The checklist includes questions about:
- The child’s feelings and wishes
- The child’s physical, emotional, and educational needs
- The child’s age, sex, background, and other relevant characteristics
- Any harm the child has suffered or may suffer
- The ability of the child’s parents and other relevant people to meet the child’s needs
- The range of powers available to the court
Magistrates hear the ‘voice of the child(ren)’ and it moves us on towards the final hearing and final order. If Cafcass has determined that any safeguarding concerns can be managed, the order will be one whereby we specify who the child lives with and how they spend time with the other parent. Before moving onto any direct contact, which would most likely start by being supervised at a contact centre, we would order indirect contact such as cards, letters and presents followed by video messages and then onto phone or video calls. Communication between the parents should be in a way that both the parents and the child(ren) feel safe. Therefore, if a parent doesn’t want any direct contact with their ex-partner, then a third party would need to be agreed upon; this could be a friend, grandparent, aunt or uncle, who the child also knows.
In all cases, whether domestic abuse is involved or not, family magistrates are there to try to find the best possible outcome for the children involved.
Magistrates come from all walks of life and sit as a panel of three working together – with the support of professionals in the courtroom – to come to conclusions on cases. It is possible to apply to be a ‘family-only magistrate’ – meaning that you sit in the family court only rather than in the criminal court as well. If, having read this article, you are interested in finding out more about being a family magistrate, more information is available here.
For more information about magistrates and the MA, please visit our website or get in touch at info@magistrates-association.org.uk