I am making this statement as a Co-Director of Right to Equality to explain why I supported Dr Charlotte Proudman, Director of Right to Equality, in the case brought against her by the Bar Standards Board, who accused her of breaching the Bar’s Code of Conduct. I am delighted that the disciplinary tribunal rightly dismissed all charges of professional misconduct against Dr Proudman, charges which should never have been brought in the first place. The actions of the BSB were designed to penalise and silence legitimate feminist critique of family court decision-making. In so doing, they sought to infringe her right to freedom of expression, which the tribunal confirmed was protected under Article 10 of the European Convention on Human Rights. This statement draws on the statement that I submitted to the tribunal in support of Dr Proudman in opposing the BSB’s charges and in support of her claim that the BSB discriminated against her as a woman and a feminist.
I am a Reader in Law at Brunel Law School, Brunel University of London. Prior to entering full-time academia in January 2014, I practised at the independent Bar in London for over 30 years, for 25 of which I specialised in Family Law. My specialist area of research for the past 27 years has been risks of harm, particularly domestic abuse and child abuse, in family court proceedings. That research attests to some of the issues identified by Dr Proudman in her critique of the judgment of Sir Jonathan Cohen.
In England and Wales, we have a long and proud tradition of eminent and notable feminist lawyers speaking out to uphold and safeguard women’s rights and to call out misogyny and sexist legal practice and decision-making. Helena Normanton QC, the first female barrister in the UK, was an ardent feminist who campaigned for divorce reform. Ruth Bader Ginsberg famously observed: “Women’s rights are an essential part of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.” Lady Hale said of the law: “The basic values of the law are justice, fairness and equality. If the courts don’t personify equality, that means they’re not personifying the values which underlie the legal system.” Of the family courts, she observed: “The most troubling aspect of my perception is that some women are being pursued and oppressed by controlling or vengeful men with the full support of the system.”[1] Baroness Kennedy of The Shaws, an outspoken critic of sexist practices and attitudes in the law, said that “the only way to create real change [is] to engage with the institutions where power lies.” These feminist lawyers garner respect, not approbation. Yet when Dr Proudman articulated feminist critique of judicial decision-making and engaged with a key institution of power (the High Court judiciary), she was denounced by the regulatory body that should have been supporting her.
Dr Proudman has dedicated her life and career to working passionately for the rights of women and children to live free from violence and abuse and has championed the rights of vulnerable women and children. She has worked tirelessly both in and outside the courts to improve the family court and wider response to domestic abuse with some notable success. She has been particularly successful in extending jurisprudence in the pivotal areas of defining rape and consent, special measures for victim/survivors in family court proceedings, and challenging the presumption of parental involvement and the deployment of allegations of parental alienation in child arrangements cases. The cases in which she has acted, sometimes pro bono, have contributed to what appears to be a positive change in attitudes and perceptions by family court judges to domestic abuse in child arrangements cases (see Barnett 2024 Journal of Social Welfare and Family Law).
Speaking of the #metoo movement, Baroness Kennedy said that it is a “response to law’s failure” because if women “had confidence in the justice system and men really feared the shame and consequence of misconduct … we would not be seeing a resort to anonymous accusations.” This is very relevant to the tweets for which Dr Proudman was charged. Research shows that, increasingly, women do not have confidence in the family justice system – not because of what they read on X (formerly Twitter) but because of their own experiences of proceedings. For example, submissions from mothers and other professionals to the Harm Panel report “that there was an element of sexism and class prejudice in the stereotypical assessments of victims and abusers” (p 52). Numerous submissions revealed a “lack of understanding of domestic abuse” and a failure to acknowledge “a pattern of behaviour over a long period of time” rather than “focusing on single incidents in close proximity to court action” (p 55), as well as the reframing of abuse as a ‘high conflict’ relationship, and abuse not being seen as ‘relevant’ to child arrangements. The Harm Panel reported forcefully on the way in which family court orders “enabled the continued abuse and control of children and adult victims of domestic abuse” and the long-term harms arising from this. Dr Proudman’s analysis of the judgment in the tweets in issue is an accurate representation of the large body of research over the past 30 years of the failure of family court judges and professionals to understand domestic abuse and take it seriously. Numerous studies, the Ministry of Justice Harm Panel Report and the report of the Domestic Abuse Commissioner (2023) reveal the harm that family court orders can cause for mothers and children when involvement of children with fathers, including perpetrators of abuse, is prioritised over safety and welfare. The UK Government accepted this criticism in its Implementation Plan of the Harm Panel Report and the recommendations for how to improve understanding of domestic abuse, including training for the judiciary.
It is important that all participants have confidence in the family justice system but this will not be achieved by stifling critique and protecting the sensibilities of the judiciary and professionals. On the contrary, confidence will be gained by judicial recognition of the problems identified by research, including the Harm Panel report, and a willingness to engage in meaningful practical, attitudinal and cultural change. A positive example has been set by Cafcass’s new Domestic Abuse Practice Policy, which shows that Cafcass responded to the Harm Panel report in the spirit in which it was intended. Introducing the policy, Cafcass said: “Learning from audit, family feedback, complaints, critical legal judgements, and serious incidents shows progress and improvement but there is more to be done. Errors in judgement persist with terrible consequences for child and adult victims. This is why a Domestic Abuse Practice Policy has been put in place.” This recognition, and the policy that has resulted from it, will increase confidence in Cafcass. If the family court judiciary wish to increase user confidence, the way forward is to follow the lead of Cafcass, not to stifle or resist critique. However, there is no suggestion that the judiciary themselves played a role in the charges against Dr Proudman or are resistant to critique and change. We should be rightfully proud of our senior judiciary who have shown themselves willing to identify problems in practice and to embrace change. In F v M [2021] EWFC 4 Mr Justice Hayden said that: “My strong impression, having heard the disturbing evidence in this case, is that [coercive and controlling behaviour] requires greater awareness and, I strongly suspect, more focused training for the relevant professionals.” The President of the Family Division in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 accepted the criticism of the Harm Panel report about Scott Schedules, which “undoubtedly confirmed the need to move away from using Scott Schedules.” The responsibility for the unmeritorious charges against Dr Proudman lies firmly at the door of the BSB and the malicious individuals who instigated complaints.
With regard to the case of Traharne v Limb [2022] EWFC 27 (which formed the subject matter of Dr Proudman’s thread on X), in the context of all the research evidence on the nature of coercive and controlling behaviour and on the problematic way in which some family court judges understand and respond to it, Dr Proudman’s tweets provide an accurate and fair summary and critique of the judgment and also draw attention to the positive aspects of the judgment. Numerous academic journal articles, including those I have published, criticise and critique judgments in far more robust terms than Dr Proudman’s tweets. Indeed, an increasing number of judgments of the higher courts strenuously criticise the judgments of the lower courts for the views expressed about domestic abuse, including the President of the Family Division’s judgment in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448. In her judgment in JH v MF [2020] EWHC 86 (Fam), Ms Justice Russell delivered a scathing criticism of HHJ Tolson’s views on rape. In this case, HHJ Tolson said a woman could not have been raped because she did not fight off the rapist, views which were sharply criticised on appeal.
One assumption that could be made about the charges against Dr Proudman is that it is acceptable to the BSB for judges, academics, journalists, the public at large and even the government to criticise judgments and judges but it is not permissible for barristers to do so. However, a review of social media, X in particular, shows that this is, in fact, not the case. There are numerous tweets from male barristers which criticise judges in the most scathing, derogatory and offensive terms. Barristers openly referred to a senior judge on X as ‘stupid’, ‘idiotic’, ‘bonkers’ and unlawful’. This is clearly gratuitous abuse and completely different from the tweets posted by Dr Proudman. However, despite the BSB being made aware of these tweets, they have taken no action against these barristers. What this suggests about the charges against Dr Proudman is that as far as the BSB is concerned, anyone can criticise or critique a judge or judgment as long as this is not done by a woman presenting a feminist critique. The charges against Dr Proudman could have been, and appear designed to have been, a strong deterrent to female barristers speaking up for gender equality and ending male violence against women. In this respect, the charges echoed and colluded with all the research, which reveals how family courts and professionals silence women who are victim/survivors of domestic abuse. It is very much hoped that the tribunal’s dismissal of the charges negates their potentially deterrent effect.
Dr Proudman has suffered years of horrific abuse both online and offline for her views and campaigning on gender equality and ending male violence against women and children, some of which has reached the level of criminal offences. I have experienced similar attacks, although not on the same scale as Dr Proudman. I was fortunate that my regulator (my employer) has provided unreserved support. This is the sort of support I would have envisaged Dr Proudman should have received from the BSB rather than completely the opposite – dismissing violent and offensive abuse as ‘free speech’ and instead penalising the victim.
We no longer live in a world where the doctrine of coverture reigns, where women cannot vote or practice law, or where women had to endure horrific abuse or be left homeless and penniless, thanks to a long line of courageous and pioneering feminists. The charges against Dr Proudman could have dragged us back into an era that is out of step with every other development in modern society. I am saddened and disappointed that the regulator of the profession to which I devoted over 30 years of my life had chosen to collude with abusers rather than support a member of the profession who has done so much to promote the fundamental freedoms to which we should all aspire. This attempt at silencing Dr Proudman appeared to be intended to send a chilling message to women who work and campaign in the public sphere that if they challenge gender-based violence and misogyny, they will be punished rather than appropriately supported. I hope that feminist campaigners will be reassured by the tribunal’s decision. In 2019, Baroness Kennedy told the Fawcett Society that “[p]atriarchy is a virus that lives deep in the body politic. We have to become more confident in naming it as one of the main blights on all our lives.” It is incumbent on all of us to ‘name patriarchy’ without the fear of retribution from those seeking to uphold it. It is clear that fundamental change is needed within the BSB in order for confidence to be restored in the regulator. A clear statement from the BSB is needed to explain how this will be implemented.
[1] Brenda Hale, ‘The View from Court 45’ (1999) Child and Family Law Quarterly, 11, 377-386, 385