Written evidence from SHERA Research Group (CFA0132)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

House of Lords Select Committee on the Children and Families Act 2014

Is the Children and Families Act 2014 fit for purpose?

Dr Elizabeth Dalgarno: on behalf of SHERA Research Group: Exploring the Health impacts of Domestic abuse and Family Court Proceedings on Mothers and Children.

The call asks:

Have the reforms to the family justice system succeeded in making the system faster, simpler and less adversarial? How has the Act interacted with other reforms to the family justice system, for example the changes to legal aid?

How has the presumption of the involvement of both parents in the life of the child after family separation affected proceedings?

1)                Our international research group SHERA includes 20 members from across the globe, representing several prominent domestic abuse organisations as well as legal professionals and external UK academics. It is currently leading and developing several projects exploring the health impacts of domestic abuse and family court proceedings on mothers and children.

Data from 481 mothers collected in June 2021 in conjunction with The Survivor Family Network:

-                      99% agreed family court increases poor mental health (MH) and

-                      99% agreed family-court has a negative impact on health and well-being

-                      96% agreed a specific service or support organisation that supported the MH of women going through family-court is needed

-                      89% disagreed - health and social care professionals understand family-court

-                      89% disagreed - legal professionals understand the health impacts of family-court

-                      84% disagreed - legal professionals understand Domestic Abuse (DA)

-                      81% disagreed - health and social care professionals understand DA

-                      70% disagreed - health and social care professionals are able to provide MH support that attends to family-court issues

-                      67% disagreed - legal professionals believe medical evidence of DA

•                  These findings are particularly concerning in relation to the Children Act 1989 as amended by the Children and Families Act 2014. They show that there is a broad lack of understanding of domestic abuse in the family courts and that mothers’ mental health is consistently harmed by proceedings.

The Children Act (1989) states:

(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.

(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.

•                  A key point to consider is how harm of domestic abuse can be appropriately considered if there is a lack of understanding by professionals in the family court around what domestic abuse is and the harms it causes to children and mothers.

2)                Our preliminary qualitative findings and patient and public involvement and engagement (PPIE) (ongoing now for over two years at regular intervals) indicates that the problems highlighted within the MOJ Harm Report (Hunter, Burton and Trinder, 2020; Barnett, 2020) are unfortunately still very much alive and well.

The ‘pro contact’ approach is still extremely prevalent and problematic. Mothers in particular and children’s reports of abuse are described as systematically diminished and minimised in favour of maintaining contact with both parents, in other words, the courts are seemingly prioritising maintaining contact between survivor mother and children with perpetrator fathers, even when findings of factual harm have been found against the father perpetrator.

Additionally, survivor mothers report inadequate assessments of risk of harm to both the child and mother (particularly around perpetrator fathers using family court proceedings / litigation to continue abuse).

A key concern here that is repeatedly raised, is around the lack of CAFCASS, legal professional and judicial knowledge, training and expertise of domestic abuse, coercive control and post separation abuse. Mothers and children consistently report being disbelieved.

Moreover, in the rare event that fact-finding hearings are held, mothers are being asked to limit the number of incidents of abuse within Scott Schedules. This constructs the abuse as small numbers of separate events. However, research has repeatedly shown that examining specific incidents in this way rather than examining them as connected patterns of behaviours in perpetrators, can result in inadequate assessments of risks that a perpetrator poses as detailed by Katz (2020, p312):

‘Child contact provides coercive control-perpetrating fathers with opportunities to continue their abuse of children and ex-partners. Domestically violent fathers are routinely permitted contact with children (e.g. Bruno, 2015; Humphreys et al., 2019; Thiara and Gill, 2012). Professionals and systems (e.g. family courts) often aim to maintain relationships between children and domestically violent fathers, ‘overrid[ing] children's and mothers' right to protection’ and ‘compromis[ing] their safety’ (Harne, 2011, p. 65). Children who have post-separation contact with perpetrators/fathers can experience acute fear, distress and physical ill health; and are sometimes subjected to physical, emotional and/or sexual abuse by perpetrators/fathers during contact visits (Beeble et al., 2007; Harne, 2011; Humphreys et al., 2019; Mackay, 2017; Thiara and Gill, 2012). To maintain control and punish ex-partners post-separation, perpetrators/fathers often manipulate both children and professionals. Thiara and Gill (2012) highlight fathers manipulating children by buying them expensive presents and blaming mothers for all the problems in the family. Monk (2017) and Bancroft et al. (2012) show how some professionals inadvertently assist and collude with perpetrators/fathers owing to the perpetrators'/fathers' skill at ‘lying, threatening, charming, playing the victim or the hero’ (Monk, 2017, p. 183).’

Survivors are reporting to us that their mental health is being weaponised against them in proceedings by experts (more below) and used against mothers to undermine their ability to care for their children. Ironically, this is resulting in mothers’ ability to parent being impaired as they are living in a consistent state of ‘fear’ ‘anguish’ ‘trauma’ and ‘post separation control/abuse’, facilitated by the family courts. Mothers should be supported to parent in a supportive and harm free environment, especially after escaping abusive partners– something that the adversarial nature of the court system (which has not improved or become less adversarial), diminishes.  The family court system is systematically and repeatedly perpetuating harm to mothers and children and facilitating post separation abuse. This is all in stark contradiction to the goal of the Children Act, that the “child’s welfare shall be the court’s paramount consideration” (S1(a) Children Act 1989).

Recommendations:

1.             Regarding sections (1) (5) (6) and (8) of the Children Act 1989:

Given the apparent continual prioritising of pro contact approaches taken by the courts to maintain contact with both parents despite the overwhelming evidence of the harms of this approach in domestic abuse cases, we urge that the legislation be amended to include:

-                      The child’s welfare shall be the court’s paramount consideration and the courts should refrain from taking a pro-contact approach particularly where allegations of domestic abuse are raised. Priority should be to take a cautious approach when domestic abuse / child abuse is raised to the courts and priority should be given to reduction of harm and reduction of risk rather than prioritising contact as in children’s best interest.

-                      Child arrangement hearings should avoid trial by personality in the courtroom by relying on evidence on the history of caretaking as well as history and patterns of domestic abuse.

-                      Judiciary presiding over child arrangements should have undertaken and evidenced up to date and continual professional development domestic abuse and coercive control training

-                      Judiciary presiding over child arrangements should be given adequate time to prepare for hearings and to examine the evidence describing the history of care/domestic abuse

-                      Where allegations of domestic abuse are raised by parents or children, the child arrangements proceedings should be centred around the parent victim and child, recognising that perpetrators of abuse are likely to deny allegations and may be utilising the court proceedings to continue post separation abuse and control.

-                      The Children Act 1989 and/or a new Children and Families Act should incorporate the fact that the recently enacted Domestic Abuse Act (2021) considers children as victims of domestic abuse in their own right.

3)                Survivors report findings of fact are not consistently undertaken where there is evidence of domestic abuse and that risk assessments are being conducted upon them for potentially ‘exposing children to emotional harm’ if they refuse to cooperate with contact orders that direct contact between the child and a perpetrator father. Again, this is in contradiction to the best interests and welfare of the child, who may be put in danger in the care of the perpetrator father.

As the Act notes, risk assessments must be conducted, however our research and PPIE indicate that risk assessments are not being conducted upon fathers where there is evidence of abuse nor where there are findings of fact of abuse:

(2)If, in carrying out any function to which this section applies, an officer of the Service or a Welsh family proceedings officer is given cause to suspect that the child concerned is at risk of harm, he must—

(a)make a risk assessment in relation to the child, and

(b)provide the risk assessment to the court.

(3)A risk assessment, in relation to a child who is at risk of suffering harm of a particular sort, is an assessment of the risk of that harm being suffered by the child.

This is particularly concerning given the recent guidance provided by Sir Andrew McFarlane,

President of the Family Division, stating ‘There is a time and a place to determine allegations of domestic abuse, but it may not be in your court. Unless it will be relevant to, and necessary for, your decision regarding the welfare of the child, do not allow the court to be used to litigate such allegations.’ (Courts and Tribunals Judiciary, 2022). The guidance may be falsely perceived as a red-herring and utilised to further dissuade investigation of abuse and further disadvantage vulnerable mothers and children.

The call further asks:

•                  How well have the limitations on expert evidence served children in the family justice system?

4)                One of the most concerning findings of our research is relative to part 25 applications, particularly the use of so called ‘parental alienation’ (PA) or parental alienation syndrome (PAS) experts. As noted in the MOJ Harm report (2020).

There is no official or widely accepted agreed definition of PA or ‘alienating behaviours’. There is a wide range of views on what parental alienation is and how to identify it, even among its advocates (Doughty et al. 2018). Even some of those who consider themselves experts in parental alienation have acknowledged that it is not possible to adequately differentiate between cases of unjustified alienation and those where a child is justifiably estranged from a parent (Saini et al, 2016). There is a stark lack of cohesion and consistency in how the courts interpret and define parental alienation (Richardson, 2019).

Owing to global criticism and an empirical inability to demonstrate markers of a ‘syndrome’ and rejection of PAS and PA by the World Health Organization, the American Psychological Society and the European Association for Psychotherapy, for the past 20 years the broader terminology of parental alienation (PA) and synonymous terms such as ‘implacable hostility’ have now been adopted by advocates of PA  (Mercer and Drew, 2021).

Despite increasing importance being attributed to children’s voices and their rights under Article 12 UNCRC, PA proponents encourage courts to ignore children’s voices on the basis that they reflect ‘brainwashing’, with significant implications for children’s safety and wellbeing (Hunter, Burton and Trinder, 2020).

The literature, theoretical and empirical assumptions of PA, as well as practices that draw upon this literature have been widely criticised (Barnett, 2020, Lapierre, 2020, Meier, 2009 & 2020, Neilson, 2018 and Mercer & Drew, 2021). Experts globally have repeatedly warned that PA is being consistently used as a litigation tactic in child custody/arrangements cases to diminish or silence men’s violence and abuse against mothers and children which disproportionately labels predominantly mothers as the ‘alienating’ parent (Lapierre & Côté, 2016; Faller, 1998; Meier, 2009 & 2020, Rand 2010; Walker & Shapiro, 2010). Subsequently, it has been evidenced in the world’s largest study in this area that in fact allegations of ‘alienation’ are deemed to ‘trump’ any allegations of domestic violence or child abuse, leading to many mothers losing residency of their child, with the child then often placed in the sole care of the abusing father (Meier, 2020).

Despite this growing body of research, our survivor participants inform us that the use of this empirically vacuous concept is being consistently applied within family court proceedings. So called parental alienation experts are repeatedly appointed within proceedings, which is leading to the removal of children mostly from protective mothers.

Survivors also inform us that evidence of domestic abuse provided by medical experts from evidence from GPs and allied health professionals is consistently rejected and/or diminished in family courts in child arrangements proceedings.

Survivors also inform us that non HCPC registered ‘experts’ have been instructed in their cases. This is of particular concern as the title of ‘psychologist’ is unprotected and means that there is great potential for unscrupulous and exploitative ‘experts’, with financial motivations being instructed in these cases.

Survivors also inform us that they have not been made fully aware of the purpose of such expert instruction, been able to provide input into this process, or been able to provide informed consent. This has also been reported for children and again raises concerns around competency to consent to assessment. There are also concerns that so-called experts without DBS checks have been instructed to assess children.

Recommendations:

1.             Children Act (1989) Appointment of guardians.

Given that up to 60% of private law proceedings cite domestic abuse and children are now considered as victims of domestic abuse, we would urge that the legislation be updated to reflect that:

-                      All Guardians must have undertaken and evidenced training in domestic abuse and coercive control.

-                      All Guardians must undertake and evidence training around the misuse and unscientific nature of so-called parental alienation theory and its derivatives

2.             Regarding Children and Families Act 2014 c. 6 PART 2 Section:

13Control of expert evidence, and of assessments, in children proceedings

(7) When deciding whether to give permission as mentioned in subsection (1), (3) or (5) the court is to have regard in particular to

(h)any matters prescribed by Family Procedure Rules.

PART 25 FPR (2010):

(7)When deciding whether to give permission as mentioned is subsection (1), (3) or (5) the court is to have regard in particular to –

Recommendations

We would strongly urge that this be amended to note that the court must reject the appointment of any expert who pertains to have expertise in unscientific theory and / or assessment techniques grounded in concepts such as ‘parental alienation’ ‘parental alienation syndrome’ or any derivative of this concept, which has been denounced by global scientific and regulatory bodies such as the World Health Organization, The United Nations and so on.

-                      That where expert evidence such as that from police, local authorities, medical and allied health professionals is already available, further expert witnesses should not be appointed. This would also no doubt drastically reduce the public expenditure on the child’s public funding certificate and decrease delays in proceedings.

-                      Judiciary should be made aware of financial incentives of appointing experts. For example, The Family Separation Clinic currently cites fees at: ‘The cost of our Assessment with Clinical Trial is £6,000 (plus VAT) plus travel and accommodation costs for cases outside London. Any exceptional costs are agreed on a case-by-case basis.’ If expert witnesses are to be appointed, we urge that the Children Act and/or Children and Families Act impose a restriction or ‘capped fees’ on this expenditure, to ensure that experts are not incentivised by financial gain of contributing to child arrangements proceedings. This would also encourage a more efficient turn around in child / family assessments and further reduce the delays in court proceedings, in line with Part 1 section 1 (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

-                      Where absolutely necessary, only HCPC-registered and more optimally NHS/public body health/social care professionals who are practicing registered experts should be instructed and able to provide evidence as expert witnesses.

-                      There should be within the statutes clearly outlined and delineated guidelines for accountability of expert conduct in proceedings for judiciary, legal professionals and any experts. It is simply inadequate to refer parties, particularly domestic abuse survivors, to lengthy signposting processes for siloed organisations. The family courts should take full responsibility and accountability for any actions surmounting to child arrangements and should not shirk this responsibility.

-                      We would strongly urge that the Children Act calls for all case outcomes to be made publicly available, subject to the anonymisation / pseudonymisation of family member names. This would increase transparency within the private law proceedings and allow for more candid scrutiny and constructive development of best practice in relation to vulnerable families in child arrangement proceedings.

-                      Survivors of domestic abuse are particularly vulnerable and as such more detailed guidance should be provided around the nature of child arrangements (for example a guide to proceedings of some sort / what to expect information) and around informed consent in instructing an expert witness.

-                      We would urge that the legislation be updated to direct that for any victim/survivor of domestic abuse, an independent domestic violence advisor (IDVA) should be appointed in all cases at the commencement of proceedings, where domestic abuse is indicated in the C100 form, to assist the survivor parent/child in navigating the court proceedings and be permitted to be present in all hearings. We would also advocate that each family court has a ‘domestic abuse champion’ who will ensure that legislation, rules and practice guidance are followed properly and consistently and that survivors and children are treated humanely.

-                      We further urge that the courts should ensure all court clerks / staff are fully trained in and evidence up to date domestic abuse and coercive control training so that C100 forms can be screened for the presence of domestic abuse in order to appoint an IDVA. This would ensure an IDVA is appointed in cases where the victim/survivor may not yet be fully aware that they are experiencing abuse, as the evidence indicates realisation of this can take up to several years.

References

•                  Barnett, A. (2020). A genealogy of hostility: parental alienation in England and Wales. Journal of social welfare and family law, 42(1), 18-29.
•                  Court and Tribunals Judiciary (2022). Fact-finding hearings and domestic abuse in Private Law children proceedings – Guidance for Judges and Magistrates. Available at: https://www.judiciary.uk/announcements/fact-finding-hearings-and-domestic-abuse-in-private-law-children-proceedings-guidance-for-judges-and-magistrates/
•                  Doughty, J., Maxwell, N. and Slater, T. (2018) Review of research and case law on parental alienation (Cardiff: Cardiff University; Cafcass Cymru)
•                  Saini, M., Johnston, J., Fidler, B. and Bala, N. (2016) ‘Empirical evidence of alienation’ in L. Drozd, M. Saini and N. Olesen (eds.) Parenting plan evaluations: applied research for the family court (2nd edn, New York: Oxford University Press) 374-430
•                  Faller, K.C., 1998. The parental alienation syndrome: what is it and what data support it? Child maltreatment, 3 (2), 100–115.
•                  Family Separation Clinic (2022) Court instruction and assessment. Available at: https://www.familyseparationclinic.com/services/assessment-and-treatment/.
•                  Hunter, R., Burton, M. and Trinder, L. (2020) Assessing Risk of Harm to Children and Parents in Private Law Children Cases (London: Ministry of Justice).
•                  Katz, E., Nikupeteri, A., & Laitinen, M. (2020). When coercive control continues to harm children: Post‐separation fathering, stalking and domestic violence. Child abuse review, 29(4), 310-324.
•                  Lapierre, S., Ladouceur, P., Frenette, M., & Côté, I. (2020). The legitimization and institutionalization of ‘parental alienation’in the Province of Quebec. Journal of social welfare and family law, 42(1), 30-44.
•                  Lapierre, S. and Côté, I., 2016. Abused women and the threat of parental alienation: shelter workers’ perspectives. Children and youth services review, 65, 120–126.
•                  Mercer, J., & Drew, M. (Eds.). (2021). Challenging Parental Alienation: New Directions for Professionals and Parents (1st ed.). Routledge. https://doi.org/10.4324/9781003095927
•                  Meier, J., 2009. A historical perspective on parental alienation syndrome and parental alienation. Journal of Child Custody, 6 (3-4), 232–257
•                  Meier, J.S., 2020. U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show? Journal of social welfare and family law, 42 (1), 92–105.
•                  Ministry of Justice (2020).PRACTICE DIRECTION 12J - CHILD ARRANGEMENTS & CONTACT ORDERS: DOMESTIC ABUSE AND HARM . Available at: https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j. Accessed on: 13.04.2022.
•                  Neilson, L. (2018) Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights? Fredericton: Muriel McQueen Fergusson Centre for Family Violence; Vancouver: FREDA Centre for Research on Violence Against Women and Children
•                  Rand, D.C., 2010. Parental alienation critics and the politics of science. The American journal of family therapy, 39 (1), 48–71.
•                  Richardson, M. (2019) ‘Parental alienation: the vital early stages of litigation’, Family Law 278
•                  Saini, M., Johnston, J., Fidler, B. and Bala, N. (2016) ‘Empirical evidence of alienation’ in L. Drozd, M. Saini and N. Olesen (eds.) Parenting plan evaluations: applied research for the family court (2nd edn, New York: Oxford University Press) 374-430
•                  Walker, L.E. and Shapiro, D.L., 2010. Parental alienation disorder: why label children with a mental diagnosis? Journal of child custody, 7 (4), 266–286.

May 2022