Examination of Witnesses (Questions 200-219)
14 DECEMBER 2004
HILARY SAUNDERS,
RUTH AITKEN,
PHILLIP NOYES
AND BARBARA
ESAM
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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