Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 200-219)

14 DECEMBER 2004


  Q200 Chairman: There are a couple of dangers in the answers you have given. We have had two answers, one in relation to mothers and one in relation to children, in which the implication is almost of a criticism of mothers and children for not recording or admitting to more violence having taken place. That suggests leading witnesses, does it not?

  Ruth Aitken: Can I just say, it is not a criticism, it is just an understanding of the way in which abuse affects victims.

  Q201 Chairman: Once you make that assumption you are in danger of leading a witness, are you not?

  Ruth Aitken: We are not making that assumption, we are just raising it as a possibility. Some people do not say that they have been abused, because of fear, because of shame, others do not identify themselves as being abused, and because denial, minimisation and distortion of reality are part of the abusive process that is the effect that it can have on victims. I think that the courts need to be aware of that.

  Chairman: Have you ever come across instances where abuse is alleged by all the parties without foundation as a weapon in the on-going argument?

  Q202 Ross Cranston: Have you come across malicious allegations of abuse?

  Hilary Saunders: I am sure it will happen on occasions, but that is not what we see in refuges. With regard to false allegations, I think probably the best comment on all that is in Peter Jaffe's book, "Child Custody and Domestic Violence". This is a man who has had 25 years working in the family court clinic in London, Ontario, and who is well respected for his work on domestic violence. He says here: "Women who raise concerns about a violent partner in family court proceedings are unlikely to be believed because lawyers and judges tend to overemphasise the possibility that false allegations are being used to further custody claims."

  Q203 Chairman: My question was whether any of you had come across examples, and Mr Cranston following, of malicious allegations?

  Phillip Noyes: Yes, but also we have got examples of situations where the referrer has been malicious about the adult and in fact the allegations have been true. So a golden rule for the NSPCC staff taking the calls, including calls about domestic violence, is to separate out what sounds like malice between adults from what needs to be investigated in relation to the safety of the child.

  Q204 Mrs Cryer: Ross Cranston was asking about injunctions, that a woman could make allegations and gain an injunction against her husband to exclude him entirely from the family. Am I right in assuming that husband normally would appear before that judge, perhaps a week later, and put his side of the case, therefore appealing against that injunction? I just want to clarify it in my own mind. That is still the case, is it not, that the excluded husband would have a right of appeal?

  Hilary Saunders: Yes.

  Q205 Mrs Cryer: An application for the injunction would be heard without his presence but then he would be invited to come into the court, say, a week or so later, to put his side of the argument?

  Hilary Saunders: Certainly that is my understanding.

  Mrs Cryer: I just wanted to make sure that was right.

  Q206 Mr Clappison: Just going back to the point about finding out when women have been victims of violence, is it within your experience, when you say that sometimes you have had women who, perhaps through sheer embarrassment, have not said anything about violence, that later on you have uncovered cases where there has been actual, serious, physical violence?

  Ruth Aitken: Yes, absolutely. Another common theme is that women may say, "He abused me but he was okay with the kids. I don't think the kids have seen anything, we always tried to keep it quiet." Before I was Policy Officer, my job was working as a psychologist directly with women and children in a refuge, in fact for a number of years, and I would be working in parallel with the woman and with the child so I would hear both sides, confidentially, of course. I have had a little five year old say to me "My dad used to strangle my mummy. She used to say it was a joke but I know it wasn't a joke, but I don't tell her because she gets upset." So there is silence and secrecy between the parties.

  Q207 Mr Clappison: I understand that you are dealing with complex situations in which people sometimes do not want to admit things. On the question of the definition, which you did strive to highlight, would you accept that there is some danger if you pitch the definition too wide on this, in perhaps the vast majority of cases, given that there is always going to be disagreement, rancour, between the parties, reasons why people want to separate from each other? Do you accept that there could be a difficulty in having a definition which was too wide and it would include nearly every case?

  Ruth Aitken: I do not think so, because our understanding of domestic violence, and the understanding that comes out of the New Zealand legislation definition, is that it is ongoing, systematic, purposeful, the purposeful abuse of power and control within a relationship. We need to find ways, I agree, of differentiating that from problems around relationship breakdown, problems around arguments, problems around conflict, but if we have a clear definition and people are trained I cannot really see that there is a problem with that.

  Q208 Mr Clappison: The definition should spell out a clear difference between the two?

  Ruth Aitken: Then couple it with training, rolling it out, implementing it, I think that would help.

  Q209 Mrs Cryer: Can I put a question to the NSPCC. This Committee has received submissions which suggest that in cases which involve the neglect and physical or sexual abuse of children the children were more likely to be living with their natural mother alone. Have you any evidence to support this?

  Phillip Noyes: It is very difficult that way round. In terms of who perpetrates abuse, the NSPCC's prevalence study, which looked at a sample of about 3,000 18-24 year olds talking about what had happened to them when they were younger, suggested that more women than men physically abused children and neglected them, and more men than women sexually abused them. Because of the limitations of the data collection, that did not take into account the incidence of children living with their natural mothers on their own. Previous research that we had done, which was on incidence, based on child protection registers, suggested that when you controlled for the domestic arrangements of children then men were probably round about twice as likely to be afflicting physical abuse on children than women.

  Q210 Mrs Cryer: This is to Women's Aid. You have suggested that non-resident parents should be banned from applying for contact for several years in high risk cases. What do you consider to be high risk cases? In order for such an order to be made, should the non-resident parent have been convicted of an offence in a criminal court?

  Hilary Saunders: No, because the level of criminal convictions is very, very low. The central problem with all of this is that we are talking about abuse that is committed usually within the home, behind closed doors, and so what the court is presented with is a he said, she said, situation. If you do not have that broad understanding of what constitutes domestic violence, you can get narrowed down to talking about just one event. It is extremely difficult to prove. One of the things that we would really like to see, and we argued for this in our latest report which was launched yesterday about 29 child homicides, these were children who were killed as a result of contact or residence arrangements in England and Wales over the last 10 years, 10 in the last two years, we talk about the need for front-line staff in statutory agencies to recognise significant risk indicators and for research to establish what significant risk indicators are with regard to children affected by domestic violence and involved in family proceedings. We are close to it in South Wales because the Cardiff Women's Safety Unit has worked with the South Wales Police and also with the NSPCC to draw up significant risk indicators with regard to women, and if you applied them to the 29 child deaths that we looked at in that report you could see that there was a high correlation. What we want is for front-line staff to have good risk assessment tools and an awareness of where the risks are, because if you do not understand the dynamics of domestic violence you can make very dangerous assumptions.

  Q211 Mrs Cryer: You would say that no-one would be banned from applying for contact for several years unless there was some strong body of evidence?

  Hilary Saunders: Absolutely; yes.

  Q212 Mrs Cryer: It is just that there are some very high profile pressure groups operating on this and this is not always made clear?

  Hilary Saunders: I think when contact is refused in less than 1% of cases there has to be a good reason for those refusals.

  Q213 Mrs Cryer: Again to Women's Aid. You have complained that the standard of proof has been raised higher than the balance of probabilities in serious cases involving sexual abuse. In fact, the civil standard of proof which is applied by the courts always means more likely than not. If non-resident parents were to be denied contact for several years in high risk circumstances, how could their rights be safeguarded against malicious accusations? Also, if the consequences of an accusation of domestic violence are to escalate so that a non-resident parent were to be denied contact with the children until findings of fact were made, should the standard of proof also be raised?

  Hilary Saunders: I appreciate the concern about a loving parent being denied contact with their children. I think that is very unlikely to happen. What I would be much more concerned about is what happens to children when the courts demand what they call a higher standard of proof, a higher balance of probabilities, because the worst cases that we see are cases involving child sexual abuse. When a woman says that a child has just disclosed child sexual abuse, we know that woman is going to have a terrible time in the family courts, because very often we are talking about children who are under the age of five and that child is too young to give evidence. So even if you have got a social worker and a police officer agreeing that, yes, they think this is sexual abuse, you have to prove that he did it, it is not enough just to prove that the child has been sexually abused, you have to be able to show that it was that particular person. It is incredibly difficult.

  Q214 Chairman: You have to show that he was party, in some way, to the abuse?

  Hilary Saunders: Yes.

  Q215 Chairman: Not that he carried it out but that in some way he was party to it?

  Hilary Saunders: Yes, and because that is so difficult we come across really bizarre situations. That was highlighted in the AMICA survey[1]in 1999. This was a study of 130 abused parents talking about what had happened to their children in family court proceedings. They found that direct contact was slightly more likely to be granted in cases where there were allegations of physical or sexual abuse of a child than in cases where there were simply allegations of abuse to the mother. If you think about that, it is quite extraordinary, in fact it is utterly perverse, and we think that is a direct result of the Re H & R judgment. I know that Lord Hoffman has made a statement, quite an amusing statement, which aims to clarify the position, but we are still seeing cases where, frankly, very dangerous decisions are being made, particularly in cases involving child sexual abuse.

  Q216 Keith Vaz: Do you think there is a bias against fathers in the family justice system?

  Hilary Saunders: I do not think there is a bias against fathers. I do not think there is a bias against mothers. I think the one real problem that we have got is that there is such an overwhelming presumption of contact, that has made the family courts a profoundly hostile environment for abused women and children.

  Q217 Keith Vaz: What about the NSPCC, do you think there is a bias?

  Phillip Noyes: I agree. We have got no evidence that there is bias. I guess it is underpinning what we are saying that we are concerned about bias against children and that the discourse around men versus women will somehow blind us even more to the fact that children, one at a time, need to be properly safeguarded when they get contact with their parents.

  Q218 Keith Vaz: Let us look at the bias against children then and the issue of contact arrangements. Do you think that the views of the children are being taken into consideration adequately when these arrangements are being made?

  Barbara Esam: I started to refer to that earlier, as you know, and certainly we do not think that these children's circumstances are being adequately looked into and that is a failing of the system in private proceedings at present. There seems to be a sometimes dangerous presumption that if you consult both parents the welfare of the child is automatically then going to be safeguarded, and we think that is a real concern and is not giving children the right that they deserve to have their views properly taken into account. They need to receive information as well about what is happening, and of course all of that needs to be with the proviso that there has to be the recognition that children have to be of a certain age and understanding so that they are not overburdened with this.

  Q219 Keith Vaz: Let us look at the age situation. Obviously, the younger children, their views will carry less weight than if the child is, say, 10 or 11. Do you think that there is a difference, in terms of priorities, in the views of the children, depending on the age of the child?

  Barbara Esam: I do not think their views should carry less weight, necessarily, depending on their age. It is more difficult to get information from children the younger they are, but there should be sensitive procedures to provide age-appropriate means of getting information from children, giving them an opportunity to have their views listened to.

1   AMICA stands for Aid for Mothers Involved in Contact Action. With the help of Dr Lorraine Radford this organisation carried out a survey with 130 abused parents and Women's Aid Federation of England published the findings of this survey in a report titled Unreasonable Fears? in 1999 Back

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