Annex 2
DOMESTIC VIOLENCE IN CONSENT ORDERS
A paper by Lord Justice Wall given to the Hertfordshire
Family Forum at the Law Faculty of the University of St Albans
on 13 March 2007
I need to begin, I suppose, with the
usual caveat. The views I am about to express are, of course,
my own. They do not pretend to represent those of the judiciary
as a whole, although I would hope that many of my colleagues would
agree with what I am about to say.
You have asked me to address a specific
question. I need, however, to put that question in context. Although
applications for contact are a common instance in which domestic
violence falls to be considered, it is, of course, only one small
aspect of a very much wider problem. I therefore need to make
a first, and very obvious point, and it is that domestic abuse
is endemic. It affects every level of society. It is a major social
evil. It is intractable. It represents perhaps the greatest single
interdisciplinary challenge to the family justice system. It is
absolutely right that you are concerned about it; and it is also
absolutely right, to take just one example of a more general concern,
that the Family Justice Council (FJC) has both what it calls a
"children in safeguarding proceedings committee" and
a domestic violence working group.
My second general point is one which
is, perhaps, more controversial and is one with which a number
of people here may not agree. It is that domestic violence is
predominantly a male problem. Of course there are women who kill
their children and abuse their partners. However, in my view,
for men to fall back on the politically correct view that the
problem affects both sexes equally is, in my view, not only wrong:
it can easily lead to a complacent view that men really don't
need to do anything about it. This is a point I have made to men's
groups. Men's groups must, in my view, be open and public of their
condemnation of domestic abuse, and should be at the forefront
of those aiming to assist both victims and perpetrators.
This leads me to my third general point,
which I accept is subjective and largely based on my own experience.
One of the most dispiriting aspects of dealing with cases of domestic
abuse in court has, for me, been the reluctance of most perpetrators
to acknowledge what they have done. How often have we all heard
the grudging admission that the man may have "pushed"
or even "slapped" his partner, usually combined with
an assertion that she had attacked him and that he was only acting
in self-defence. This makes both the "treatment", let
alone the reduction/eradication of domestic violence even more
difficult.
It is, accordingly, very important in
my view that we should continue to promote the message that it
is not possible at one and the same time to be guilty of serious
violence to your partner and to hold yourself out as a good parent.
The old approach that a man may have abused the mother of his
children, but that he had not struck the children and that he
was still a good father will no longer wash in the over-whelming
majority of cases. As Dr Sturge and Glaser put it in the ground
breaking report to the Court of Appeal in Re L in 2000:
"Domestic violence involves a very serious and significant
failure in parenting".
This leads to my next point, which is
also a general one, but which has some relevance to the point
you have asked me to address. It is my view that the family courts
are ill-equipped to deal effectively with domestic violence. Our
remedies are crude. We can attempt to protect victims by means
of non-molestation orders, occupation orders or by refusing contact
between violent parents and their children. In the criminal context,
the police and the criminal courts can facilitate the prosecution
of perpetrators. But none of this goes to the heart of the problem.
The heart of the problem is how we address the issue in its wider,
social context. The question which you have asked me to address,
is, as I have already made clear, only a very small part of a
much wider problem.
I am, of course, not competent to address
these wider issues, interesting and important as they are. The
only real contribution I can make, I think, relates to the hope
that increasingly disputes over children in particular can be
taken out of the court room, and that parents can be educated—by
suitable programmes, counselling, mediation and other means—into
an appreciation that violence in a relationship is unacceptable,
and in particular that it can, potentially, have enormously damaging
consequences for children who experience it either directly or
indirectly.
If this seems a pipe dream, the process
towards achieving it will, of course, only occur if the government
chooses to intervene, for example by funding the types of programme
which should, prospectively, accompany orders made under the Children
and Adoption Act 2006. I am disappointed that the genesis for
the 2006 Act and what Children Act Sub-Committee (CASC) of the
short-lived Lord Chancellor's Advisory Board on Family Law was
trying to achieve when making its proposals in the report Making
Contact Work appears to have been misunderstood. We were seeking
to educate, not to punish. We took the view that the solution
to an intractable contact case was not endless, ineffectual court
hearings culminating in committal proceedings, but external intervention
designed to teach recalcitrant parents about the damage their
ongoing disputes were causing their children. This included, of
course, trying to demonstrate to a violent father why his violence
was responsible for the absence of contact; and to assist the
recalcitrant resident parent, usually the mother, in understanding
why her determined resistance to contact often had little to do
with the welfare of her children, and everything to do with the
ongoing battle with her former partner. How may contact cases
are about children?
I do not wish to sound unduly pessimistic.
There have, I think, been many improvements in the past five years.
Above all, there has been the recognition, in particular by both
the courts and by the police that the question of domestic violence
has to be faced up to and addressed. The tensions between the
need to empower the victim of an abusive relationship to take
steps to prosecute the abuser on the one hand, and the myriad
of pressures—some self-inflicted, which pull the victim
in the opposite direction are undoubtedly being addressed by the
police. My anxiety is that the welter of recent legislation, particularly
in the field of harassment, will make the inter-relationship between
the family and the criminal court even more difficult to navigate.
But that is another topic for another day.
In summary, however, my view is that
until we can generate a culture in which violence between partners
and parents is simply unacceptable—a culture in which women,
in particular, have greater social and economic power—the
problem will remain endemic. In the millennium volume of essays
published in 2000[254],
I cited 17th century cases which—a few anachronisms apart—could
have been in my court when I sat at first instance—every
day of the week. I predicted that in the year 2,100 there would
still be domestic abuse. I would like to think that I was wrong.
I won't, of course, be here to find out, but if nothing else the
point goes to complacency. We must never think that we have succeeded
in eliminating domestic abuse. We must, however, be ever vigilant
and ever inventive in our efforts to combat it.
Enough generalisations. I need to address
some practical points.
I start, not with the WAFE report entitled
29 Child Homicides but with the first CASC report unmemorably
entitled A Report to the Lord Chancellor of the question of
Parental Contact in cases where there is domestic violence.
I realise, on re-reading it, how badly it is put together. You
don't even get a date (May 1999) until the very last page.
The conclusions we reached are set out
in section 4 of the report, and in approaching the question of
domestic violence in consent cases it is, I think, helpful to
remind ourselves what they were. We acknowledged the importance
of the subject, and the powerful public perception that domestic
violence was not being fully addressed by the courts. We were
not persuaded that legislation—for example following the
New Zealand model, was necessary. We were, however, strongly of
the view that there should be good practice guidelines, preferably
introduced by Presidential Practice Direction. We said that the
operation of the Guidelines should be monitored by the Department
and the Court Service for a defined period, and the question of
legislation reconsidered if they were not working. That monitoring,
we said, should be part of a "systematic gathering and analysis
of information relating to applications to the court for contact
in which domestic violence is an issue". We also recommended
"longitudinal research" funded by the Department and
aimed at informing all the professionals working within the Family
Justice System about the effects of domestic violence on children
and their parents. Finally, we commended continuous joint training
for what was then the Court Welfare Service, together with training
of the judiciary in understanding the effect of domestic violence
on children and parents.
I fear that much of this simply did not
happen. There was no Practice Direction. I am not aware of any
really consistent monitoring or systematic gathering of information.
I am not aware of any ongoing longitudinal research. CAFCASS continues
to be under-funded and unable to put in place much of the work
I know it would like to undertake.
We do, of course, now have the 2006 Act.
The jury is out in relation to implementation and the resources
to be provided for it. Much, as I have already said, depends on
the extent to which the government is prepared to put in place
the necessary funding.
This leads me, at long last, to the topic
you have asked me address. I begin with the WAFE report, 29
Child Homicides, which, as it title suggests, identifies 29
children killed by their fathers after the parental relationship
had broken down, and when the children in question were visiting/staying
with their father.
It is, I think, important to bear in
mind a number of factors when considering this report. The first,
of course, is that it covered a 10 year period. The second is
that 18 of the 29 children who were murdered were not subject
to any form of court proceedings; and the third is that of the
11 children who were the subject of court proceedings, eight died
as the result of parental actions which had not been and could
not reasonably be foreseen. The deaths, therefore, appalling and
unnecessary as they were, represent a very small sample. As I
made clear in my report to the President, that is not in any way
to underestimate the personal tragedies in question. It does,
however, enable me to retain a sense of perspective.
If I may be allowed a personal anecdote,
one of the most moving cases I ever heard was the case of the
father suffering from Huntingdon's disease who decided that because
he was terminally ill, he would commit suicide and kill his children
at the same time. The method he chose was to offer to take the
children on a camping weekend. He had bought several cans of petrol,
and he intended to immolate himself and the children in his van.
Fortuitously, and because of the curious movements he made. You
will find the case in the books, reported as Re H (Contact
Order) (No 2) [2002] 1 FLR 22. The mother in that case, however,
wanted the father to see the children, even though he had been
violent to her. She readily agreed the contact. She had no idea
what he was going to do, nor could she have reasonably foreseen
it.
You will, I think, be aware that in two
of the cases in which there had been consent orders I was concerned
that perhaps the judge could have been more alert. In one of them,
the child who was untimely killed had complained previously to
his mother about his father's behaviour on contact, and the order
had been varied because of it. On the other hand, it was clear
that the parties would probably have made their own arrangements
whatever the judge decided. I found it very hard to be critical
of the judge in either case. Both had acted conscientiously and
in what they believed to be the e best interests of the children.
I was very pleased that the President
took up my invitation to ask the FJC to report to him on the question.
This seems to me precisely the sort of task the FJC ought to be
addressing, and I am impressed with the quality of the result.
I am sure you are aware of the report's recommendations, but you
will find them set out in detail on the Family Justice Council's
website. They are quite far-reaching. They call for a cultural
change away from the "contact is always the way forward"
approach to the "contact that is safe and positive for the
child is always the appropriate way forward".
The recommendations call for a Practice
Direction based on Re L [2000] 2 FLR 334. Safety is to
be the watchword when considering contact. There should be a process
of risk assessment in every case in which domestic violence is
alleged. The court forms should be simplified and details of allegations
of domestic violence should be given. There should be improved
multi-disciplinary training. The Law Society's Family Law Protocol
should be strengthened to make it clear part of a solicitor's
duty when acting for either parent in a contact or residence application
is consideration of the effect of a proposed order on the safety
and welfare of the child concerned. The question of separate representation
should be considered in highly conflictual cases. There should
be a system of feedback to judges in which harm has arisen from
a contact order. The Court Service and the DfES should explore
how the family court process should be included within Serious
Case or Domestic Violence Homicide Reviews.
These recommendations are developed in
the body of the main report, which I commend to you. I do not
have time this evening to deal with them all. I will, however,
comment briefly on one or two aspects of them.
I fought and lost a battle with the then
President (Baroness Butler-Sloss as she now is) over the proposed
Practice Direction. I tried in vain to persuade her that she would
not be telling her judges what to decide in individual cases (something
she quite properly perceived as unconstitutional) merely how they
should go about the process of making their decisions.
My fear was—and I think it has
proved justified— that unless there was a Practice Direction,
the Guidelines[255]
would be ignored—or, if not ignored, reduced to the status
of something which existed, but which did not require any particular
course of action to be taken on the facts of the individual case.
I recall seeing some correspondence on FELIX, the judicial Email
making it clear that guidelines did not have the force of law
and could be safely ignored.
In my judgment, a practice direction
is very important. I hope it will be based on the CASC Guidelines,
reproduced below. The Guidelines were not written in stone. They
provided a template from which the court in the individual case
could select the approach to be adopted.
I am therefore very grateful to the FJC
and in particular to the authors of the report for recommending
a specific practice direction.
I would like to address in particular
two of the aspects of the Guidelines which have attracted criticism.
They are, respectively, the emphasis on finding of fact hearings;
the second is on the abuse to which the system is subject if one
party—usually the woman—seeks to advance a case of
domestic violence which is either exaggerated or untrue as a means
of frustrating contact. The two are, I think, linked in the sense
that they are both case management issues.
I am unrepentant about the need for the
court to establish the facts before it makes its orders. Fact
finding is a particular prerogative of the first instance judge.
You cannot, in my view, safely make an order in relation to children
without a good understanding of what the underlying facts of the
case are.
Insofar as hearings designed to establish
the facts cause delay, this is, in my view, essentially a case
management issue. The delay has to be balanced with the other
factors in the case. Robust case management is required. Issues
must be identified clearly and equally clearly addressed by the
evidence. If the allegations made are unlikely to affect the order,
it may not be necessary to address them. These are all matters
for the good sense of the lawyers and the judge.
Lack of resources will always be prayed
in aid as a reason for not undertaking the task. As a first instance
judge, I deeply resented a lack of resources preventing me form
doing my job properly. Every case, of course, involves a balance.
But in my view the lack of resources should not be allowed to
put children's safety at risk. If the needs of the children require
a proper enquiry into the facts that is simply what must happen.
I strongly deprecate any attempt to frustrate
contact by means to spurious allegations of domestic violence.
But once again, this seems to me a case management issue. The
court must examine the allegations, and the response to them,
speedily. It may be necessary to make a snap judgment based on
an assessment of the case overall. I do not underestimate the
difficulties. But as the report from the FJC makes clear, these
cases are of the utmost importance to children and their parents,
and must be properly heard.
Intervention in cases where there is
agreement may be difficult. It may upset the parties. It may irritate
the profession. The ethos of the Children Act is non-interventionist,
but if children's safety is to be uppermost in our minds when
considering the welfare equation, we will have to intervene if
we think an order has been agreed which is likely to compromise
the child's safety.
I think the FJC report poses challenges
to all of us. For the legal profession, the challenge is to tease
out and address the issue of domestic violence wherever it appears,
and to apply to the allegations made in a given case careful judgment
and wise counsel. For CAFCASS and Social Services it will require
courageous decisions and the need to address judicial findings
with both victims and perpetrators. For those attempting to address
abusive behaviour and/or to protect victims, the search to understand
the phenomenon and to attempt to educate both victims and perpetrators
will continue. For judges there will be the challenge to make
findings where necessary, and to be proactive where to be silent
would be much easier. The most important factor is that we identify
the issue and address it.
We are all small cogs in a huge wheel,
if that it not too obvious a metaphor. None of us will solve the
problem, but we can each in our own way contribute towards its
solution.
254 Essays for the new Millennium ed Professor
Stephen Cretney, Family Law, 2000, pp 43-54. Back
255
I was, of course, at that time discussing the proposed CASC guidelines,
which I reproduce in an appendix to this paper. Back
|
