By Lara Feigel
There’s an all-day hearing listed in Central London, so I try my luck there and find myself in day two of a three-day hearing. This is a larger court that shows more signs of forgotten ideals of justice; there is light and air here, and if you walk from Holborn tube, then you make your way through the barristers’ inns of court, whose meticulously primped gardens speak of a faith in the tranquillity and resolution of the legal mind.
The case I find myself in the middle of is neither tranquil nor resolved. This is a dispute about a primary-aged girl – let’s call her Cleo – whose father has applied for her to transfer residence from his mother. Right now, Cleo is living with her mother and spending four-night weekends with her father fortnightly, following a child arrangements order made several years ago when the child was a toddler. That earlier child arrangements order was contested too – and was already the second application that Cleo’s father had made to the court. It’s striking that only a year later the father applied to vary the order. The court system can be a way of life, and it certainly has been for this family. This latest court process has gone on for four years and will finally come to an end in the next two days. The fact-finding hearing was two years ago, and since then, there has been a court-directed psychological report of the family and a court-directed psychiatric report of the father. These haven’t gone well for the father; he was found at the fact-finding to be guilty of coercive control, and the mother has been found to be suffering anxiety and PTSD as a result of both their relationship and the court process.
Because the case is so complex, Cafcass has appointed a guardian for Cleo so that she has independent representation in the court process. There are thus three barristers here, representing the mother, the father, and the guardian. Both the mother and the father receive legal aid because they’ve both made allegations of domestic abuse, though the father’s have never been proven.
The father tries to block my presence in the courtroom; his barrister argues that this is an unusually complex case and they need to protect Cleo’s privacy. I don’t have to say much. The judge, Circuit Judge His Honour Judge Lewis, refers us to the law and dismisses the objections robustly, pointing out that privacy is the central tenet of the Transparency Order that I am now granted.
I have missed the father’s evidence but arrive in time to see the mother giving hers. She and her team are screened off from the father, so, sitting at the back, I am the only person except for the judge who is able to watch both the mother and the father at the same time. There are windows here, and we look out over the quaintly mismatched London roofs lit by the May sun, but the father and his team can’t see the view. The mother, rising to enter the witness box, is visibly fragile but braced to fight; she’s pale, with curly black hair, dressed in black, like a figure in a Greek tragedy. Already, I can feel grandeur and terror in the room of a kind I haven’t yet experienced in the court cases I’ve been in.
She’s questioned first by the judge and then by her own barrister about the points where she has indicated she’s prepared to concede. At the start of this case, she was asking for the father only to have supervised contact. She herself has evidence of being hit by him, and she will never be able to trust him with her daughter. ‘I don’t believe that Cleo’s safe,’ she says. This hasn’t changed, but she can see that there’s no chance of reverting to supervised contact, so she’s prepared to go along with the overnight stays they already have. She’s also changed her position on the question of getting a family assistance order. Until a few weeks ago, she wanted one of these put in place so that they would have ongoing support from social services after the case. She’s found, though, that her dealings with social services have been as stressful as the court proceedings. ‘Constant meetings, constant reports, I don’t believe they’re adequately trained in domestic abuse or trauma. It’s been ten years of abuse, four years of these proceedings, it’s too much, I want a normal life.’ She’s asked how she wants to communicate with the father. She says communication has to be once a month, on a parenting app. There must be no email correspondence, or the father will send her long emails, and she will never escape this relationship that she has been trying to leave for so long.
The father’s barrister rises to ask questions. She starts immediately by cross-questioning the mother about her anxiety.
‘Before you met Mr X you had an anxiety disorder,’ she states.
‘I wasn’t diagnosed with it,’ the mother responds, though she acknowledges that she had problems with her parents in the past.
‘[The psychologist] says it was an unfortunate meeting between you – his personality and your issues, she doesn’t blame Mr X,’ the barrister insists.
‘She specifically says I developed PTSD from the abuse,’ the mother responds.
The barrister turns to the abuse itself. In the earlier hearing, before magistrates, only one physical incident was proven. The mother had managed to record on her phone an encounter in which the father attacked her. Now the mother insists that there were other incidents, which she tried to document at the time, taking photographs of bruises, but she felt she had no space to raise them in the court process. ‘The Cafcass officer shushed me.’
‘The other possibility, I suggest to you, is that you didn’t raise any concrete allegations because there weren’t any, and that subsequently you’re making them up.’
Listening, I can’t quite believe what I am hearing. Yet this is at the heart of our law system; the adversarial process that relies on discovering the truth through subjecting each opinion to the most virulent type of scrutiny. This is what barristers are meant to do; to make the most extreme case they can on behalf of their client, so that the judge can weigh up the two extreme versions of events against each other and draw their conclusions. At least, here, there’s a parity to it because both parents have lawyers. But it’s hard to believe that it’s in the interest of a little girl that the mother who is going to have to put her to bed tonight with as much kindness and calm as she can muster should have spent the day facing such a blatantly hostile assault.
‘I’m telling the truth,’ the mother responds, ‘when I say he’s attacked me many times, not once, it started when I was pregnant.’
‘Did you tell the magistrates court that Mr X had coerced you into having sex with him?’
‘I only found out after I did…training. I realised that’s what it was. I was sexually coerced by him.’
‘One of the worries Mr X has is that at any opportunity you’re given, you want to darken his name.’
‘I’m just telling the truth. I would love things to be normal, and be able to deal with him like a normal person. Unfortunately he is not able to act like a normal person.’
There is no answer to this. I am struck by the courage of this woman, whose face bears witness to the exhaustion and strain she is under. She is here facing the man who has been proven to have attacked her, fighting as she believes for her child’s life. She is speaking a language that is evidently not her first. Yet there is great dignity in these answers, and a kind of simplicity in her belief in ‘truth’ as a non-negotiable given that manages to carry great weight in this courtroom.
‘Your real position is that Cleo shouldn’t see her father at all,’ the barrister tries – a line of questioning that could lead to the implication that the mother is alienating her daughter against her father.
‘If he walks away from court without any consequences, there won’t be any incentive for him to get better, he’s just going to get worse, that’s what abusers do.’
The barrister then asks why she is prepared to offer the amount of contact she does at present.
‘I know that’s how the system works. That the system currently prioritises contact at all costs against the safety of the child,’ the mother says.
It’s true. But it’s a dangerous statement for a mother to make. In the months to come, I will see judges criticising mothers for excessive hostility towards fathers, and will hear about judges removing children from mothers on these grounds. These are the most treacherous of the barristers’ questions; she’s trying to turn the mother’s grievances into evidence that will unwittingly help the other side. It’s probably fortunate for the mother that the barrister doesn’t push further, she asks about therapy instead. An interminable discussion ensues, about why the mother hasn’t yet had proper therapy. The implication seems to be that it’s her fault she’s as traumatised as she is, and, therefore, not up for more contact with the father. She doesn’t want to change and is, therefore, the one preventing them from moving towards 50:50 custody.
At some stage, family therapy seems to have been suggested and briefly tried out, but the mother didn’t feel she could work therapeutically alongside the man who abused her. She tries to explain this now.
‘Family therapy might have improved your relationship with Mr X,’ the barrister suggests.
‘He’s been engaging with coercive control throughout. This would be another way to destroy me. He said he was going to fight to death with me and that’s what he’s been doing since [year].’
The barrister pushes a little harder on therapy; the mother says that she’s on a waiting list but has been told that she can’t anyway start the kind of therapy that’s been advised for PTSD until the court case has finished and she’s no longer under such continual stress.
The final line of questioning involves the mother’s panic attacks. When she has panic attacks, she cries and walks around their flat, shouting at the social worker or the judge in her imagination, defending herself. The barrister asks if this sends a good message to her daughter.
‘It’s a terrible message,’ the mother responds, calmly. ‘She thinks her mother isn’t strong. I don’t like the person I am becoming, that’s why I want to go to therapy, so I can get well for Cleo.’
Along the way, she has told Cleo too much about the court process, and about the abuse. The barrister reminds her that at one stage, Cleo has been reported saying, ‘when I was in my mummy’s tummy dad tripped her, he’s been unkind to her.’
Behind the screen, I see the father begin to shake. He has been still and silent, red-faced, in his suit, but now, given a tissue by his solicitor, he sits crying, shaking silently as his barrister continues to cross-question the mother of his child.
For her part, the mother gets through her evidence without tears until the guardian’s barrister begins her questioning. Perhaps some tension in her relaxes now; this is a small, neat, grey-haired woman who speaks softly and precisely and who the mother knows to be broadly on her side. The barrister begins by asking about the panic attacks, asking what Cleo does during them. The mother says that she has her headphones on; she doesn’t react to her very much, but sometimes she will say ‘it’s ok Mummy’ to her. She acknowledges that Cleo becomes worried and confused, crying now as she says it. The barrister asks what she can put in place to protect Cleo from these moods; she is wondering if family assistance might be the best way forward after all, but the mother insists it isn’t. ‘With social services you get who you get – they hardly get any training – you do more damage than good.’
During the lunch break, I interview the mother. She describes the father torturing a mouse. She was holding Cleo as a baby, and he put a mouse that they’d caught in a humane trap in the fire, ‘so it would show the other mice in the neighbourhood not to come.’ She describes him hitting her when she was holding the baby in her arms. These are moments she lives through still, day by day; moments she is forced to live through by the court process she has had to submit to for three years. She tells me that in 2018, the Judge then in charge of their case threatened her that if she didn’t fully support contact with the man who had been proven to have hit her, he would give him residence. She tells me with bitter disbelief about the Cafcass officer who commended the father to her as ‘so well-rounded and well-balanced’. She tells me that her daughter’s school dresses are returned by the father, week after week, with a little cut in the zip, so that she has to buy a new one, and that her feet are squeezed into shoes that are too small.
There is no legal truth in our encounter; I can’t test her evidence. It’s a different kind of conversation from the one she’s just had in the courtroom, and I sense that it’s a relief to engage in a more ordinary, more openly subjective kind of witnessing and recounting. It’s a reminder of how difficult it is to get the lived reality of experience into the court process, where only facts that reach a certain evidentiary standard are admissible. The mouse, the broken zips – what place is there for them in the courtroom?
After this, the hours pass; the guardian is cross-questioned, and then the next day, the three barristers will make their submissions. I return at lunchtime the next day to find the judge intervening carefully when necessary, reminding the father’s barrister of the findings made at the fact-finding hearing. There isn’t a judgment this week, but a few weeks later, I hear the results: the father’s contact remains as it is at present, with the communication between the parents circumscribed, and an order made that they are barred from making court applications for three years.
We have to hope that Cleo continues to enjoy her time with her father as she does now. We have to hope that she continues to flourish – she’s musical, she likes performing – and that, in time, the mother’s panic attacks can cease and that she can get the therapy she feels she needs, away from the constant scrutiny of the court process. This outcome seems like the best outcome possible. But after four years, it is an outcome that effectively changes nothing. These are four years when the mother and Cleo might have been spared the agony of a process that has effectively enabled the father to continue the abuse of the relationship through other means and has subjected Cleo to the scrutiny of at least four professionals and to living alongside her mother’s fury and terror. And all this in a legal system predicated on the best interests of the child.