OpEd by Louise Tickle and Hannah Summers
Last week a tweet was posted by an American woman whose abuser sued her for defamation as part of a campaign of post-separation abuse. She won. But she remains furious about what he stole from her through his campaign of abuse, and so she wrote this:
Beyond the physical & emotional inflicted pain of abuse…is grief. Almost unrelenting grief. Things you can lose when you love & trust an abuser:
Responses to her tweet included:
Hair (from stress)
Past (all a lie)
Time…… they steal time
Another woman posted: “All those as well as the ability to trust my gut. Always second guessing everything, always.”
If we think about our lives, and what we value in it, the list above comprises pretty much everything we think it’s worth living for. And of course, a female victim of domestic abuse by a man also knows, viscerally and – given the consistent data showing the high incidence of intimate partner femicide – justifiably, that a male perpetrator can very easily take her life too.
So that’s literally everything. An abuser can take everything a person is. And their victims know it.
Women who ask for the family court’s protection for their children arrive in front of a judge knowing the risks posed by their abuser in precise detail – because they have lived the reality. And yet, repeatedly, both in court and in published judgments, what we see is a system that – given overwhelming evidence of male violence against women – refuses to engage with the reality of women’s trauma, their risk, and their terror for their children.
We see a system which operates on the basis that a period when abuse may appear to have abated (or seems to have lessened, or can’t be proved) means an abuser is by definition less risky. We see a system that readily discounts risk based on the outdated and erroneous assumption that separation means an abuser has stopped – when in fact it is well documented that the point at which a woman leaves an abusive relationship is when she is most at risk of being killed. It follows that the same type of abusive personality who wishes to punish and control a woman in this way would use the family courts as a convenient tool in which the court process becomes an extension of the abuse. In a long-running case we heard of recently, the father was awarded a transfer of residence, but pulled out at the last minute. It had never been about the children. He didn’t want them. It was about control.
In conversations with the public, at talks we give about our journalism on the family justice system, or in conversation with friends and family, it has become evident that people – entirely mistakenly – believe that in cases about access to children, family courts are bound to keep a parent safe from their abuser. Unsurprisingly, victims think this too. People are shocked when we explain that an adult abuse victim – even a mother whom a court has found to have been raped, assaulted, coercively controlled, her life dismantled and her psyche pulverised, often seems to be of no interest in her own right to a family court in a children case. When we explain that the court is solely concerned with the welfare of children, and despite the requirements of PD12J, has, in cases we have attended and read about, only been interested in a mother’s wellbeing insofar as she can carry out her parental role, they are aghast. And so are we.
Even on the basis that a woman is only of value and considered in a court’s calculation insofar as she can perform her parental function, what level of risk is acceptable to expect her to live with? What level of trauma must she have suffered for it to be bad enough for a court to say, “stop”? How much fear does a woman have to live in for a court to take that into account in deciding an abuser’s access to children?
The answer from some of the judgments we have read and some of the cases we have attended, is a very great deal.
Take the case described in the recent judgment of HHJ Vincent. This follows on from two previous judgments by the same judge, both published in 2020. The earliest judgment details extremely serious abuse proven against a father. Litigation had taken 20 months, partly because he asked for permission to appeal, which was refused. At the end of the case, the children’s Guardian invited the court to make a barring order. Noting that this was the father’s first application for contact, HHJ Vincent refused. The mother killed herself.
Louise looked into this case when the second judgment was published, shortly after the mother’s death. She visited the couple who were friends of the dead woman, and who were now caring for her bereaved children. They were warm and concerned people to whom this mother had fled to escape her husband’s abuse. The couple told Louise their friend had hanged herself in their home, showed her where they found her, the desperate attempts to save her, and talked through what they knew of her state of mind in the lead up to her suicide. Reporting guidelines make it clear that it is not advisable to attribute a single cause to suicide, but this couple told Louise unequivocally that, in their view, it was hearing that the barring order had been refused that tipped their friend into utter despair. Already fragile thanks to the serious abuse inflicted on her, they explained how her trauma had been compounded by nearly two years of litigation; in their view, this mother could simply not cope with the prospect of being taken back to court again by her abuser.
Their friend had been raped and horribly abused. The children had been exposed to that abuse, and one had been directly physically harmed; the deputy circuit judge who made the findings found that, “on numerous occasions and in front of the children the father forcibly dragged the mother out of the room, hurting her in the process and leaving the children behind with ‘at least’ [one of the children] crying.” The judge was also satisfied that the father’s abuse had continued beyond the end of the relationship, with him using “secret CCTV recordings in the house… installing a hidden tracking device in her car, publishing details of the mother’s whereabouts on Facebook, sending harassing text messages, and making persistent ‘silent’ phone calls, to both the mother and her friends.”
This reality, proven at huge cost to the mother via an inevitably re-traumatising fact finding and many gruelling months in court, demands that the family justice system answers a question: why is even this not enough?
Not enough to protect a woman from the constant, gnawing fear of more abuse via the family court process being visited upon her once again by her abuser seeking to extend contact. More resultant trauma. More financial hardship from being forced into litigation yet again to protest her children? We make it clear that in conversations with lawyers, and in our own reading of her judgments over the years, we have seen nothing but positive regard for HHJ Vincent. But if a request has been made by a proven victim of very serious abuse – or indeed, in this case, made by the court-appointed Guardian directly on behalf of the children – the decision not to make that order means a judge has chosen to value the rights of a dangerous abuser above those of a victim and her children. This man had only made one application so far, the judge noted. So… that’s all right then? No matter the harm he’s inflicted, he gets to have another crack?
The thing is, it’s entirely predictable that abusers do go on to try their luck, often again and again. We know this. Courts see it regularly, but in our view, do not take the impact on victims seriously enough. Louise has reported on a case where a woman had to go to court 37 times, dragged back over and over again by her abusive husband whom she had discovered, years after they had children, was a convicted paedophile. At that point, she left him. It cost her a quarter of a million pounds – she had to remortgage her house – and eight years of continuous litigation while he attempted to increase his contact with the children before a judge finally agreed to make a barring order. Even then, it only lasted three years.
Proven rape, physical assaults, being screamed at (men please note: when a man shouts at a woman, what you hear deep inside is a threat you know could quickly be fatal)… and an entirely reasonable terror of what may yet be inflicted on you or your children… and still a judge thinks this is not enough to give a victim even a period of respite from the kind of litigation that abusers regularly weaponise to continue their control over their victim’s life?
It makes us wonder, if this level of abuse is not enough for a Section 91 order, then how much is a woman required to stand? Because once you’ve proved rape, there’s not much left to show the court but a woman’s dead body. And suicide and murder do both happen in relation to family court proceedings. Louise interviewed the sister of Christine Chambers, shot along with her two-year-old daughter Shania the night before a family court hearing about custody after years of abuse and calling police for help numerous times. Ms Chambers’ older daughter escaped, and has had to grow up without her mother and sister. Being killed is a prospect many victims of domestic abuse reasonably fear, given their knowledge of their abuser; they live every day with that risk.
Another victim who was subjected to further abuse by the family justice system is Kate Kniveton MP (formerly Griffiths), who proved rape, physical assault and coercive control against her ex husband, the former MP Andrew Griffiths. HHJ Williscroft found the abuse proved in what appeared to be an excellent judgment. Shortly afterwards, the same judge decided it was right that Ms Kniveton, a rape victim, should share the costs of supervised contact with her rapist – contact that only needed to be supervised because of the risk of harm Andrew Griffiths posed. When people hear that a senior, experienced family judge, and a woman to boot, made this order in the face of protests from Ms Kniveton, they are at first unbelieving, and then they are appalled.
It took Ms Kniveton an appeal that Louise attended – inevitably involving more anxiety, more thousands of pounds, and as always, a costs risk – for the order to be set aside. The welfare hearings are still going on, and this victim is still having to cope with the possibility that she will have to facilitate their child’s contact with her violent, coercively controlling rapist for the next decade and a half.
And remember the young mother who was effectively told by HHJ Tolson that rape wasn’t rape if she didn’t fight back, who successfully appealed, and then won findings on all but one minor allegation in a re-hearing Louise attended, presided over by Mrs Justice Judd? Her rapist has been back to court asking for increased contact, and has got it. The mother is, understandably, stressed and worried. Their child is very young. Is this to be her life for the next decade and a half? Or will she get a barring order? It doesn’t look very likely given that the woman who killed herself didn’t.
It’s not the only time Tolson’s decisions have been called into question when it comes to his approach to allegations of rape. Two of his decisions were among four rulings challenged during a three-day conjoined appeal Hannah was in court to report on in January 2021.
Each of the four appeals featured allegations of marital or partner rape and coercive and controlling behaviour.
Three of the four were allowed including one of the Tolson cases after the appellant mother’s barrister told appeal judges Tolson had ignored an important admission by the father that he had used physical violence – and that he [the judge] had wrongfully placed emphasis on the fact alleged non-consensual sex preceded “many other occasions of consensual sex”. Tolson’s approach to the evidence was “seriously flawed”, appeal judges found.
During the same conjoined appeal, Judge Scarratt came under fire for “wholly inappropriate” remarks that made a vulnerable mother and alleged rape victim “fearful” according to her advocate, Amanda Weston KC. Three senior judges who allowed the mother’s appeal described the comments as “ill-judged” after they heard a recording in which Scarratt berated the sobbing woman, telling her if her case kept “going on and on” her child could be taken away and adopted. Barbara Mills QC, who made submissions on behalf of a group of women’s organisations, went further in describing the remarks as “very squarely abuse”.
Yet it was against this backdrop the mother, no doubt now terrified of losing her child, just had to just plough on, hoping against the odds that this judge might still consider her serious allegations in the context of the child welfare arrangements. Instead, at a further hearing, a consent order was agreed between the parties. But – as the appeal judges acknowledged – it is hard to see how the mother, given the circumstances, could have retained any real negotiating boundaries about contact. She felt she had little option but to settle and therefore the order – to move to unsupervised contact for the father – was obtained without her true consent.
Both of us have observed the case law that arose from the conjoined appeal H-N and Others referenced in cases involving allegations of domestic abuse. Many judges are undoubtedly mindful of the resulting judgment which highlighted that cases must be heard with an increased focus on controlling and coercive behaviour and an acknowledgment that abuse does not always end with a relationship and that subtle forms of abuse can persist post-separation.
But we do find ourselves left wondering to what extent this guidance has truly filtered down to judges on a broader scale when we consider that so many still appear to struggle to recognise the true seriousness and danger posed by coercive control, despite using the words in their judgments.
“Not of the highest”
This phrase was used in a hearing Louise once attended, to indicate that while domestic abuse was proved, it wasn’t the very worst sort. We have also heard judges use the phrase “all abuse is serious, but…” and we also repeatedly hear the phrase “low level abuse”. There is simply no such thing. Coercively controlling behaviour that does not leave cuts and broken bones is, according to forensic criminologist Professor Jane Monckton-Smith, who researches domestic homicide, the framework within which all types of abuse – physical, sexual, economic – takes place. A perpetrator who seeks to control their victim is potentially extremely dangerous, no matter that a woman cannot come to court with bruises or hospital admissions to “prove” the risk she is at. It is clear to us that some victims are disadvantaged by judges becoming desensitised.
In the Carlisle case Hannah recently reported on, where a mother was seeking findings of rape and domestic abuse following a successful appeal, she told the court that her son had been traumatised by a police call out. It was put to the court that the mother, accused of ‘alienating’ her son from his father had kept this incident ‘alive’ for the child – rather than the boy being able to recall the incident due to his young age.
HHJ Baker’s view expressed in court was that police are called out all the time to domestic incidents, the inference being that this was not a big deal. Hannah’s sense was that this mother’s concern for her child was seen as an overreaction.
However, the overall frequency of police call outs to domestic incidents does not make such an occurrence any less traumatic for a child for whom this is a unique experience and as witnessed and testified to by his mother, who was present at the time.
The fact that Baker’s sensitive, thoughtful and detailed judgment found in the woman’s favour does not change the courtroom experience of an abuse victim who hears her legitimate worries for her child downplayed when they come to be considered in the context of the wider patterns observed in the family courts. It should be noted that in his judgment, Baker acknowledged parents called the police so often it was easy to become “inured” to such events and went on to say he did not doubt the mother’s evidence that she found it “frightening”. However, in the same way Baker acknowledges it’s easy to become “inured” to police call outs, it perhaps follows that some judges, more broadly speaking, could find themselves “inured” to abuse that is “not of the highest”.
If you really take the time to listen to victims of abuse, as journalists do, often in interviews that take many hours, it is clear that even years later, abuse that a court could easily dismiss as “not of the highest” or “low level” frequently continues its destructive influence over so much of what that person valued about their life.
One example: a school friend, 25 years on, describes the loss of career prospects in her mid 20s when she was flying high, thanks to her abuser systematically undermining her confidence. He slapped her around a bit too – nothing a family court would think much of – but mostly, he told her she was incompetent, useless and worthless. She fled back to her family in another country, giving up her job in a highly competitive field, and it took her years to psychologically rebuild. She lost her career and never realised her professional potential. No children were involved, but had they been, she might well have been trapped in the UK with her abuser, forced into regular contact with the man who harmed her.
An example from Louise; her mother was broken psychologically and financially as a result of a short but intense period of emotional and economic abuse, which continued after she left the man (not her father) who manipulated and exploited her love for him. He stole her financial security – the equity in her house – and destroyed her trust that anyone would ever care for her. Though her mental health recovered to some degree after a voluntary hospitalisation, her physical health deteriorated fast via two auto-immune diseases linked to stress. In her mid-40s she had to give up her job as a nurse, and was poor and frightened until her death.
A third example: the young adult children of women who have been through the family court have told both of us of the harms they suffered by being forced to have contact with fathers they feared; not, usually, by being physically hurt (though intimidation and the threat of assault were often present), but in knowing they could not escape a man they had told the court they were frightened of, and who they knew had bullied and terrorised their mothers. Their mothers’ warnings, and their own fears, were repeatedly minimised and smoothed over by Guardians and judges.
In two cases we know well, the fathers were extremely wealthy and deployed the court system to get their own way, instructing barristers to run their cases against their much poorer and unrepresented former wives. In a separate case, a boy in his mid-teens recently told MPs in Parliament that he was transferred to live with his father after reporting sexual abuse and despite making disclosures to various professionals. This child sees no point in reporting the abuse to anyone now; his mother tried to explain the risk his father posed but was not believed. And so this child is now trapped with his abuser by order of a court, while his mother exists in a living hell, unable to protect him, and with barely any contact.
Research undertaken over the last decade and more by the Femicide Census shows that on average two women are killed every week in England and Wales through male violence. Even if we accept that almost all domestic abusers do not go on to kill, the level of harm they cause can be extensive and long-lasting – the overall social, health and economic cost of domestic abuse was valued in 2017 at £66bn a year in research published by the Home Office.
As a society, we accept on the criminal side of matters that domestic abuse is rife and life-threatening, and we know from research that only a tiny percentage of rape allegations are false. By contrast, in family courts very frequent assertions are made by fathers that mothers are liars who make false complaints of rape and domestic abuse to punish men when a relationship has broken down. It’s not a view confined to fathers. We have heard lawyers shake their head sorrowfully at all those damnable scheming women who are gaming the legal aid system with exaggerated, if not fabricated, accounts of abusive behaviour. But… domestic abuse is widespread throughout society, with enormous social and economic consequences. The disjoint between what we know about the scale of male violence against women, and a reflexive scepticism that seems to abound in the family justice system regarding women’s accounts of their own life experience is shocking to us.
In court hearings and in judgments, this is the reality we frequently observe:
Given that the dynamic is, generally, a father pushing for more time with children, and a mother either alleging or has proved domestic abuse (to whatever level) who is arguing for less on the basis of the risk she says he poses, the woman seems to us to be typically viewed through a lens of ‘obstruction’ to a reasonable, or at least understandable, paternal demand.
In our experience, mothers are also frequently unfairly pathologised in the family court arena in a way men are not. Our observations are necessarily anecdotal but it seems on the face of it to be a trend. Men are rarely described as overly emotional or having anxiety, or painted as hysterical or unstable. Women often are.
And we have noticed a tendency – even when a judge is not giving a father what he wants, as that is found not to be in the child’s interest – to hear considerable judicial sympathy expressed with his “frustration” at not having the full relationship with his children that he tells the court he’s desperate for. We are aware there are cases where good dads may be struggling to see their children. But it seems to take a lot of applications by a man who has been proven to have abused his ex partner, who is seeking increased contact before – very rarely – a judge will reach a point of saying “why is this father constantly rocking the boat, endlessly reissuing, dragging everyone back to court, pushing for more contact when everything has already been sorted out.” Of course, these multiple applications cost vast amounts of court time (an expense borne by the public purse), along with the huge – at times intolerable – stress, and in some cases financial ruin, inflicted on the respondent mother.
Inextricably linked to this toxic dynamic is what we would characterise as judicial antipathy towards mothers who are unable to accept court decisions. The idea that a woman may understand the risk she and her children face better than a judge – even if she is unable to prove it – is apparently unable to be entertained. An unattractive and tellingly pervasive tone of tetchiness is frequently expressed towards mothers who challenge court decisions. This irritation at women’s temerity in challenging the court, has led, in cases we have attended and read judgments about, to actual punishment of women for daring to pursue an appeal. In family courts, we observe how it can become part of the case against women that, “look, they couldn’t accept the result.” But, how reasonable is it to be hit with costs as a result of pursuing an appeal you have been granted permission to make, in a jurisdiction which does not impose costs except where someone has behaved unreasonably or reprehensibly? Mothers who truly believe their partners pose a risk to their children feel they are left with no other option. They are stuck between a rock and a hard place.
And oh… that word “reasonable” as used in the family court is a minefield that threatens to blow you up at any moment. Being seen to be on “reasonable” ground is vital. The difficulty then is that unless your barrister – if you can afford one – or you as a litigant in person, actively addresses that issue, what a judge perceives as reasonable even in the circumstances of abuse is, in our observation, very different to what a general member of the public views as a proportionate response to an existential threat.
In the wider world outside a family court, it is not controversial to take the view that a proven rapist or domestic abuser whose victim regards him as a risk to herself and their children and seeks to limit contact should not get to spend time with either her or them. However when we tell people that in family courts, unless the perpetrator backs down, this is a question that is typically entertained, requiring months of court hearings, Guardian assessments, and expensive expert psychological reports on the victim, they find it – in the literal sense of the word – incredible. When they ask if these perpetrators get contact, and we tell them it’s extremely rare for an abusive father not to get some level of in-person access to their children, they are horrified.
Yet women found to have alienated their children – because they have made allegations of abuse – can find themselves cut off from them altogether for months on end, or indeed much longer. Hannah was recently given permission to report on a case where a mother who was found to have alienated her children had not seen them for nearly two years. It seems the punishment for alleged, perceived or proven false allegations of abuse is worse than the punishment for those who have been found to be abusive and who, in some cases, continue to pose a risk of harm.
This leads back to the point that family courts simply do not seem to grasp, nor appear willing to grapple with, the accumulated and lifelong damage caused even by domestic abuse that is “not of the highest”. And to convince a judge to see the case through the prism of that long-term and dire impact on a victim – which is the point at which what’s seen as “reasonable” might shift – is likely to demand skills of argument and persuasion that few victims of domestic abuse who end up representing themselves in court will possess. As LiPs are now in a majority, this does not bode well for their safety, or that of their children.
And it is also why there is real danger in advice from lawyers not to pursue allegations of domestic abuse, which numerous women have told us is the advice they have received. A person’s view of what is “reasonable” is – perfectly reasonably – profoundly impacted by experiencing domestic abuse. That individual is going to know better than any judge what their abuser is capable of. But how can a victim ever find solid ground to engage with how a judge analyses their case if their experiences are, potentially very significantly, out of kilter with the risk assessment the judge is working to?
The same problem applies to fact findings that wrongly don’t find any facts, and fact findings that are sought but not permitted…but those scenarios are such a nightmare that they are beyond the scope of this piece.
Let’s finish up by going back to the HHJ Vincent case. We noted earlier that a third judgment had just been published. We read it, wearily unsurprised to find that the father – described in one judgment as “relentless” – who had made just the one application when his ex-wife took her own life, has since hauled everyone back to court. Twice.
No matter that the children are now settled after losing their mother. No matter that their special guardians don’t think it’s in the children’s interests to see him – or that they themselves are overwhelmed by the demands of the litigation they’ve been thrust into. No matter that, perhaps most importantly, the children definitely don’t want to see their father either. Certainly, he’s put himself through various courses for domestic abusers, but, put shortly, the feedback is that he does not believe he is one.
The level of anxiety and stress that these special guardians have had to cope with as a result of the father’s ongoing demands is set out in the judgment. It is worth remembering that this couple were friends of the dead woman, not relations, but they have nevertheless stepped up and are caring for two bereaved children who are not their own. Kinship care can be a very hard road, and its demands are often not properly financially recognised or socially supported by the state. It is a huge act of love.
So is there to be a barring order, this time? Yes, there is. Finally. But only for the next four years until the older child is 16 (the younger child benefits from the same order until their 16th birthday)
Will this “relentless” father drag everyone back to court again the moment it expires? Nobody knows for sure. These special guardians will just have to hope he doesn’t, because in truth, they have nothing else to rely on. Louise spoke last week to the woman of the couple now caring for the children; she said she was “happy” that the judge had “very thoughtfully” made the barring order.
But she also said the proceedings have been “draining, shattering, very stressful” to the point that by the end, she could not even cope with the pressure of writing a witness statement. She said could hardly imagine what the children’s mother had been put through. To everyone else, she said, their friend’s suicide in the wake of domestic abuse and punishing family court litigation may have happened years ago, but to them, “the pain is like it was yesterday.” And two children will pay the price their whole lives.
First published in the December 2023 edition of the Family Law Bar Association magazine, Family Affairs