Written evidence from Women’s Resource Centre (CFA0100)
HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY
WRC is the leading National umbrella body for the women’s voluntary and community sector. With a network of over 800 organisations, academics and activists we strive to ensure our diverse sector is thriving, in order to continue supporting some of the most marginalised women across the country.
We submit this evidence House of Lords Select Committee on the Children and Families Act 2014 in response to the increasing number of women seeking assistance in relation to VAWG and the Family Courts and Women’s human rights
This review was requested by the Women’s Resource Centre (WRC) as a contribution to the struggle to make family courts accountable to both the public and professionals (McFarlane, 2021: 6). The focus of this report is the pathologisation of women survivors of male violence, particularly domestic violence, by family court and their appointed professionals which contributes to evidence used to remove their children.
This paper reviews literature on the attitudes of the judiciary, parental alienation syndrome and parental alienation, the competence of expert witnesses and quality of their reports, overviews the data and touches on the issue of human rights asymmetries, ending with the mental ill-health double bind that family court imposes on women who allege or evidence abuse against their former partner.
Given the high volume of expert witness reports, their cost and importance, it would be reasonable to expect them to be consistently evaluated for quality, relevance and accuracy based on scientific and evidential validity (Emery et al, 2005). However, in 2012, the first ever evaluation of psychological expert witness report quality found a: ‘wide variability in report quality with evidence of unqualified experts being instructed to provide psychological opinion’ (Ireland, 2012: 3). Two thirds of the reports reviewed were ‘poor’ or ‘very poor’ (Ireland, 2012: 3), when rated against Civil Procedure Rules criteria (2010).
The report found that as a result of the term ‘psychologist’ not being protected, it was possible for those without appropriate qualifications or registrations with relevant governance bodies (e.g. British Psychological Society) to lay claim to the title ‘psychologist’ (Ireland, 2012: 4). Such empty titles as ‘consulting psychologist’ are used to deceptively claim status in legal proceedings which courts have consistently failed to protect against (ibid) and worse, used to support decisions on childcare arrangements. In a further failure, only 10% of those ‘psychologists’ instructed remained in practice outside of the provision of ‘expert reports’ (ibid).
Routine monitoring of the quality and therefore admissibility of the report content is hampered by the private nature of family court proceedings which makes regular access problematic (ibid: 6). It is not surprising then, that content failures include; uninformed speculation, allegations and numerous psychometric tests presented as facts when none met the criteria; theory contested in the field submitted without context; inappropriate language; straying outside of both qualification and question remits; failure to address instruction questions; and poor reliability and validity of data and methods (Ireland, 2012: 6). Content that is misleading or the result of misunderstanding the ethical obligations of the role of expert evidence should not be admissible to support family court decisions and this also brings into question the way in which the competence of experts is assessed.
Research evidences a dangerous bias towards expert witness’s opinions by the judiciary with regard to what constitutes the best interests of the child (Jeffries, 2016). Studies suggest their views are privileged over those of others: ‘including non-abusive parents, children, children’s regular therapists, child protection officers and the police’ (ibid: 7; Hart, 2006). However, women working in the violence against women and girls specialist sector are not recognised by family court as experts, evidencing yet another layer of bias.
It is a cause for urgent concern and an indication of family justice culture, that expert evidence report quality monitoring and commitment to improvement has not been considered an essential aspect of family court business as usual. In the absence of adequate assessment of experts’ credentials or the standards of their report content, should their reports be universally named ‘expert’ or ‘evidence’ at all (Rao, 2021)? At the very least, an immediate name change may provide judges with pause for thought with regard to the significance of what may too often be subjective opinion not, in fact, based in either evidence or expertise (Ireland, 2012; Silberg & Dallam, 2019).
Practice direction 12J (PD 12J, 2021: para 37c) makes it clear that applications to the family court should consider whether the motivations of the applicant are based on what is best for their child or a continued pattern of post-separation abuse through repeated litigation (MoJ, 2020). However research evidences that family court practitioners and the very process they uphold are freely used as conducive contexts for predominantly male abusers to humiliate, impoverish and control their ex-partners and children, with abusive motivations extremely rarely identified (MoJ, 2020). The judiciary describe the system as “crumbling” (MoJ, 2020: 41), so greater scrutiny of applicant motivations should be a priority to target scarce court resources and deny abusive men a legally endorsed licence to terrorise women and children. However, this must go hand in hand with an understanding of gender and power in relation to violence against women and girls or risk being used by abusers as yet another legal avenue for post-separation abuse.
Stereotyping women who raise concerns results in them experiencing family court as demeaning and hostile, unsympathetic to their distress and labelling them ‘difficult’ or ‘irrational’ (Birchall & Choudhry, 2018: 30). However research also reveals that the range of permissible affective responses differs for mothers and fathers (Broadhurst, Holt, Doherty, 2012) with responses to women’s testimonies demonstrating deep-seated, misogynistic institutional attitudes (Sillberg & Dallam, 2019). These asymmetries interpret women’s apparent lack of compliance based on her perceived challenge to institutional authority as pathological, with research showing mothers were pathologised in two thirds of cases where they advocated for the safety of their children (ibid).
Allegations of violence against women and their children may not be taken seriously by family courts solely on the basis that they are first disclosed officially as part of a custody proceeding (Birchall & Choudhry, 2018: 43; Meier, 2013). Therefore, in the world of family court, the status of the expert takes on a particular significance that: ‘disqualifies women’s experience/knowledge’ (Smart, 1989) of their partners’ abuse, viewing her attempts to protect her children as: ‘highly suspicious’ (Sillberg & Dallam, 2019: 141).
In a review of how influential expert testimony is in judge’s decisions on custody (Jeffries, 2016) found assumptions, gender stereotyping and biasing children’s best interests towards the rights of an abusive father rather than child safety. The review also found that those views were echoed in expert reports and this mirroring of partisan and damaging attitudes between them, makes abusive behaviour vanish, sometimes in the face of overwhelming evidence to the contrary (Jeffries, 2016).
Given the evidence, it is reasonable to conclude that sex inequality and misogyny is materially impacting the competence of family court practitioners and their judgements. Additionally, it is evident that practice direction 12J (PD 12J, 2021: para 37c) is either not understood or wilfully misinterpreted by family court judiciary and practitioners.
Despite wide criticism of PAS over many years, exposing fundamental flaws in empirical evidence (Faller, 1998; O’Donohue, Benuto, & Bennett, 2016), misogyny (Meier 2017) and flaws in reasoning that ignore the reality of domestic violence and child abuse (Bruch, 2001; Hoult, 2006) the theory has provided family court with a convenient response to complex childcare cases. PAS theory permitted biased judgements about mothers and children based on cultural and gendered patriarchal beliefs that had no scientific foundation and have no place in a courtroom or society, to be asserted as credible evidence by judges, lawyers and those recognised by the court as experts (Dallam & Silberg, 2006). The emotional distress of women and children subjected to prejudicial beliefs, presented as facts, was then weaponised by the court as proof positive that the mother was indeed suffering mental disorder, albeit of the court’s making, and further justifying awarding childcare to the father (Silberg & Dallam, 2019).
Obscuring structural misogyny by revising conceptual and theoretical language but not practice, has resulted in significantly differing definitions and applications of ‘parental alienation syndrome’ or more currently, ‘parental alienation’ yet still: ‘none of this work has reached a point of scientific credibility’ (Silberg & Dallam, 2019; Rao, 2021).
In these controversial circumstances it might be reasonable to expect that legal institutions such as family court would reject experts and testimony influencing childcare arrangements that rely on discredited discourse and theories (Rao, 2021) as ‘evidence’. Rejecting allegations of abuse as incredible and effectively a lie, on the basis of an unproven theory: ‘puts courts at risk of becoming culpable in the perpetuation of child abuse’ (Rao, 2021: 1793) and in the long-term impacts on both mother and child (Silberg & Dallam, 2019).
An essential tenet in family court childcare decisions is ‘the best interests of the child’ (Children’s Act, 1989). A study by Silberg & Dallam (2019) found that of mothers in disputed childcare hearings who had applied for protective orders against the children’s fathers, 94% were successful but in a number of cases family court judges vacated the order before giving the abusive father custody or unsupervised visitation (149). In other cases, women were told the police were unable to act on reports of abuse where it happened during court ordered contact (MoJ, 2020: 44). Consistent research points to family court decisions by judges, supported by expert testimony, perversely prioritising: ‘”abuser’s rights” over victim safety’ (Jeffries, 2016: 1).
Where women with abusive male partners put in place quite reasonable protective measures, these are construed as hostile, supporting a view that allegations of abuse surfacing in care proceedings are malicious, the result of mental disorder rather than rational and responsible (Birchall & Choudry, 2018; Jeffries, 2016). This sits in blatant contrast with men’s claims and demands which are generally taken at face value as sincere and reliable (Meier, 2003) or reconfigured to dismiss the asymmetric power dynamics of domestic abuse, characterising the relationship as a ‘mutually violent’ (Jeffries, 2016; MoJ, 2020).
Family courts do not collect data in any consistent fashion, meaning life-changing decisions on childcare arrangements are not able to be researched or monitored for patterns of good and poor practice or outcomes (McFarlane, 2021). Any efforts are hampered by the silencing of those involved in private law proceedings in the family courts, as to breach this is to risk imprisonment for contempt (Silberg & Dallam, 2019; Barnett, 2020; MoJ, 2020). Reports of poor practice are then able to be dismissed either as anecdotal rather than evidence or are distorted by negative stereotypes of mothers (Birchall & Choudhry, 2018).
There are no studies to measure the validity of parental alienation theories, as a result there has been no peer review and so experts are unable to point to data on the frequency of the diagnosis or the error and accuracy rates, despite parental alienation as a concept originating in 1984, thirty eight years ago (Rao, 2021). In contrast, research evidence shows that violence against women and children is more prevalent in contested childcare cases than in the general population of divorcing couples (Zerwer & Poisson, 2004; Barnett, 2020). In addition, a review of false reporting in childcare cases shows deliberate false allegations are rare, most being the result of misinterpretation and the volume is minimal with no evidence it is higher during care proceedings (Dallam & Sillberg, 2014; Bala et al, 2007).
If the goal of family court is to reduce psychological risk to children based on representing their best interests, relying on ‘shoddy science’ (Emery, 2005: 12) demonstrates how open to misinterpretation and idiosyncratic the concept of ‘best interests’ can be, particularly where rigorous scrutiny is absent.
In some cases, mothers and/or children have been murdered, the opportunities for which have been offered to the father during court ordered contact or custody (Barnett, 2020) sometimes in spite of a civil protection order having been put in place (Choudry, 2019). This evidence shows a gendered approach to the application of human rights with the father’s right to a family life (HRA, 1998: Article 8) overriding or seriously compromising the mother’s and children’s human rights and therefore safety (Choudhry, 2019). One study found 71% of women disclosed abuse to the court but only 29% of cases resulted in a fact finding hearing (Choudhry, 2019: 1090).
Women’s human rights are subordinated in favour of her ex-partner’s, whose rights as a father are then united with the children’s to argue in favour of both parents having rights to contact (MoJ, 2020). As Birchall & Choudhry (2018) point out: ‘the ‘best interests of the child’ was often used, but not in the way intended in Article 3 of the UNCRC [United Nations Convention on the Rights of the Child], which is that when decisions are made, the impact on the child should always be considered, alongside the child’s other rights, such as the right to be free from all forms of violence, as set out in Article 19’ (22). Women have reported feeling that ‘their own and their children’s rights to privacy and family life (Article 8) and to be free from further degrading treatment (Article 3) were breached’ (Choudhry, 2019: 1089) by the process and decisions made at family court as well as the long-term consequences those (ibid).
This failure ‘to act in a manner that is compatible with the rights of victims’ (Choudhry, 2019: 1101) is at the least discriminatory, at worst a perverse mockery of the law. Gathering evidence to make a case about breaches of human rights (for example, to contribute to UN shadow reports) is currently impossible due to the secrecy of family court hearings and the lack of scrutiny of expert reports.
Experts and professionals assessing each parent ‘commonly’ (MoJ, 2020: 55) dismissed the context and history of cumulative abuse which is arguably critical to the future safety and therefore best interests of the child (ibid). Behaviours considered irrelevant included; economic abuse, domestic abuse, coercive and controlling behaviour and psychological abuse, predominantly perpetrated by fathers (Silberg & Dallam, 2019).
Where women presented evidence of their abuse with ongoing investigations against their partner accompanied by protective measures, its relevance risks being disregarded or disturbingly, used to argue against mothers’ parental fitness (Birchall & Choudry, 2018; Silberg & Dallam, 2019; MoJ, 2020). One study evidences: ‘67% of mothers were pathologised for advocating for the safety of their children’ (Silberg & Dallam, 2019: 151). A recent research study found 78% of judges who awarded custody to an abuser, did so on the basis of the mother being alleged by an expert to have a pathology that called her parenting into question (Silberg & Dallam, 2019: 150). In 67% of these cases, the judge cited expert opinion refuting the mothers’ allegations of abuse by her partner - allegations which were subsequently proven (ibid).
The misogynistic bias is common legal knowledge and upheld by lawyers advising women not to mention their abuse for fear of losing custody of their children to the abusive parent (Birchall & Choudry, 2018; Silberg & Dallam, 2019; MoJ, 2020). How many times family court has made this error is unknown, however research evidence confirms that children suffer an escalation of violence and abuse once they are in the custody of an abusive man (Silberg & Dallam, 2019) while family court simultaneously discredits mothers’ legitimate concerns as ‘pathological’ and ‘obsessive’ (ibid: 152).
Where male violence women alleged against an ex-partner, which was not believed by the court is subsequently proven, can family courts provide evidence that maintaining that such women are mentally disordered and therefore unfit parents, is not the price they are willing exact in order to avoid the blushes of a sitting judge who has made such a catastrophic decision? What has motivated and enabled such an arrogant and unprofessional way of working is a question for the Family Justice Division to answer. For women and children, these are serious matters which deserve care and attention.
Authors: Sarah Learmonth, PhD researcher at LSE, in collaboration with Dr Susan Robson, Cris McCurley and Vivienne Hayes MBE, CEO Women’s Resource Centre.
Full citation references are available on request.
To contact any of the authors, please email s.j.learmonth@lse.ac.uk or vivienne@wrc.org.uk
25.4.2022
May 2022
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