|Second reading – 5 January 2021|
This Briefing is from Women Against Rape (WAR) and Support Not Separation Coalition. Since 1976 WAR has provided advocacy and information in individual cases and campaigns for justice, asylum, protection and compensation. It has won changes in the law such as getting rape in marriage recognised as a crime. WAR is active in the Support Not Separation Coalition (co-ordinated by Legal Action for Women), along with organisations of women of colour, women with disabilities, breastfeeding advocates, psychotherapists, men and social workers. It defends mothers and children against unwarranted separation. Through this work, we are in contact with hundreds of mothers and children, family law professionals and organisations.
This Briefing contains our main demands for the Bill to address the way abusive fathers are using the family court to continue their reign of terror over children and women. We challenge the omission of essential resources that women need to escape; the weaknesses of a gender-neutral Bill; the exclusion of migrant and disabled women from protection; and raise concerns about the criminal justice system.
Domestic abuse is widespread and often deadly. On average two women a week are killed by partners or ex-partners—this doubled during the first three weeks of the COVID-19 lockdown, and calls to the Met police from victims rose by one third. Overwhelmingly, the victims of abuse are women and the perpetrators are men, particularly in more serious physical attacks, and coercive and controlling behaviour.
We daily work with mothers who have suffered domestic abuse and are fighting in the family court to protect their children from abusive fathers. We provide support and campaign for change as part of a growing movement of women across the UK. Domestic violence, including rape, by the father against the mother and/or the child is the most common justification given to remove children from their mother, despite the mother’s efforts to protect her children from the abuser.
The mothers who come to us are overwhelmingly low income, single mothers, women of colour and/or who have a disability. Their experiences have been substantially confirmed by the recent Ministry of Justice Review (see our Review summary) which documents a family court process that is deeply sexist, racist, class-biased and discriminatory in other ways.
It would be a missed opportunity if the Domestic Abuse Bill ignored the overwhelming evidence now in the public domain about the lack of protection for mothers and children across the family courts.
Family courts enable men’s abuse of mothers and children
In family courts, mothers who report domestic abuse to themselves or their children are too often disbelieved, especially if the violence is sexual. Or the abuse is dismissed as either not serious or irrelevant to contact by judges who disregard non-molestation orders and the criminal law on rape.
Mothers are accused of harming children because they may have witnessed abuse, while perpetrators are not. They face having their children taken away by the state and even given to the violent/rapist father, further traumatising the children by separating them from the mother they depend on for protection.
The courts do not recognise that 90% of primary carers are women, who do the bulk of unwaged caring work, know the situation best and are most committed to the children. This has increased during Covid19. After separation, fathers who genuinely care for their children are least likely to invoke the court, having made an amicable decision on shared parenting and maintenance.
Abusive fathers are most likely to take cases to court. Between 70-90% of family court cases involve domestic violence, yet only 1% of fathers are denied access to children—a strong indication of how biased the courts are, and how they prioritise fathers’ demands over children’s and mothers’ right to safety and wellbeing.
Children’s wishes are often ignored and many are unjustly removed from loving mothers, potentially causing lifelong trauma. The effect of this trauma is not even considered when decisions are made; neither is the likelihood of suffering abuse while in the care of the state, which has proven to be all too common.
We are therefore asking you to raise the following issues in the Domestic Abuse Bill debate.
1. End the presumption of contact by deleting it from section 11 of the Children and Families Act 2014. There is no need for a further review – the evidence is clear!
The presumption of contact pervades the whole court process and is used by abusive fathers to insist on unsupervised access and even residence of their children, with deeply harmful consequences. The Review recognised this, and confirmed that this presumption
“. . . has led to a ‘pro contact culture’ reflected in case law and promoted by all professionals … [which] results in a pattern of minimisation and disbelief of allegations of domestic abuse and child sexual abuse.”
“… the dominance of contact [is seen] as excluding other welfare considerations, including the child’s need for protection from abuse, or the child’s wishes and feelings [our emphasis].”
The presumption of contact results in children’s wishes being ignored or dismissed as a sign of “alienation” by the resident parent. The Review found a pattern of bias as court professionals gave weight to the views of any child who wanted contact with a father, but dismissed the views of those who did not. Children are forced into contact with domestic abuse perpetrators despite clearly saying they are afraid of them and do not want to see them. Research indicates that children usually have very well thought out reasons for objecting to contact (Fortin, Hunt and Scanlan, 2012).
“All three children have suffered with anxieties, having to deal with multiple professionals, sleep issues, behaviour issues. They are often visibly upset, angry and frustrated when having to meet with the social worker on a weekly basis. They feel that they are not being listened to when they say they do not want to see their father. I feel that the court process is being used by the father to further bully and coerce me; he does not support the children financially, leaving me with the worry of ever increasing legal fees.”
“Insisting on my [7-year-old] daughter going to contact with her father has put a big strain on our relationship because she blames me for forcing her. I felt I had no choice because the court would criticise me if I did not insist.”
2. Remove “parental alienation” from the Draft Statutory Guidance accompanying the Bill (Paras 48 & 118)
Mothers attempting to protect their children (and themselves) from domestic violence are often accused of “parental alienation” by fathers. “Parental alienation” is a misogynist theory that has no place in a Bill about domestic abuse, nor in its Guidance. It is not a form of domestic abuse but a tactic used by domestic abusers to continue their reign of terror over women and children. It is regarded as junk science which originated from discredited US psychiatrist Richard Gardner, who denied domestic violence and defended paedophilia. The Review found:
“… an allegation of ‘parental alienation’ meant that the parent who is the subject of the allegation will be treated as an ‘alienator’, rather than as a protective parent with well-founded fears around abduction or violence.”
“Parental Alienation” appears in Para 48 (Guidance) as an example of controlling and coercive behaviour. But the behaviour described (stopping a child visiting their grandparents or friends) resembles typical behaviour of controlling fathers and is not how the accusation of “parental alienation” is commonly used. Para 118 gives the example of “vexatious applications to the family court to prolong proceedings (sometimes referred to as “parental alienation”)”.
This is an example of what abusive fathers often do to retaliate against the mother with whom the child is living, but again is not how “parental alienation” is commonly used. Both references are misleading and should be deleted.
“ I left an abusive relationship but I am still living in fear. I am being coerced by the family court system which is supposed to protect me and my two young children. My whole life is put on hold. I can’t plan the future for me and my children. I feel like a hostage because my passport and my children’s passports are seized. I have been called obstructive by the judge for making a statement to the police. I feel like a criminal because of father’s allegations of parental alienation and breaching court orders.”
The use of “parental alienation” by the family courts is the result of a militant lobby of fathers’ groups which deny domestic abuse. Five men’s groups are among the CAFCASS stakeholders, yet only two women’s groups are. From this position, they have unduly influenced CAFCASS perspective and decisions, especially under the former CEO, Anthony Douglas. Other family court professionals have also adopted “parental alienation” as a way to dismiss mothers’ and children’s reports of abuse, especially sexual abuse. They use it to claim women and children are lying about abuse, yet research shows that in fact, false child abuse allegations in custody cases are rare, and false allegations most commonly come from anonymous reporters and non-resident parents (usually the father) rather than resident parents (usually the mother) and children (Trocme and Bala, 2005).
“When a social worker told the children that the police could come and take them away from me because they refused to see their father, they were devastated. Whatever you think of me, why would you do that to children? You are breaking their spirit, making sure they are torn completely so that they submit . . . The father has done nothing to bond with the children – no birthday cards, no gifts, no maintenance . . .”
3. Extend the Bill’s ban on cross-examination, as recommended by the Review, to ensure that it applies in any family cases involving domestic abuse (including where abuse has been admitted or is being established). This extension should also apply to the newly added provision in civil cases, and should not be subject to an “evidence test” in family courts, which will not protect all survivors as most women don’t report their abuse.
4. Reverse the legal aid cuts delivered in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and make non-means tested legal aid available for all domestic abuse cases. We agree with Women’s Aid’s demands on this.
5. Prevent disclosure of a refuge address in response to family court orders (echoing a demand from Latin American Women’s Aid). The Bill must urgently address this to protect mothers and children’s lives.
6. We are concerned about the inclusion of children in the definition of victims of domestic abuse. The Bill now includes children (Part 1). The intention behind this clause may be to ensure children’s access to help and services, but including children in the definition of domestic abuse could result in more children being removed from their mothers, thus adding to their trauma and vulnerability to further abuse. Since “witnessing domestic violence” was included in the definition of “significant harm” (in 2014 legal ref), more and more children are being taken from mothers accused of “failing to protect” them. Unless professionals are directed to prioritise keeping children with their primary carer, they are likely to use children’s “independent” status as victims to recommend their removal.
Central government must ensure money and resources go directly to survivors
As research by Women’s Aid and the TUC confirms (), “the most vital needs a woman has if she is to escape abuse are welfare and housing”. But the Bill does not ensure that central government must provide these essentials.
The Bill directs local authorities to provide support to victims, via a new Local Partnership Board and local Strategy (Part 4). But this support is largely unspecified and local authority budgets already slashed under austerity have now been decimated by Covid19, so how will they fund such provisions?
The Bill doesn’t even provide for sustainable funding to specialist refuge services, yet even before COVID, in 2018-19, 64% of referrals to refuges were declined.
Post-COVID-19 poverty and unemployment follow decades of austerity cuts to welfare, social housing, etc. . . . Local Authorities must be instructed and funded to implement Section 17 of the 1989 Children Act – money and resources for keeping children with their mother and siblings. Section 17 is rarely used; instead millions are spent on removing children into “care” – an increasingly privatised and dangerous environment for children. Section 17 must be strengthened to help address mass poverty and homelessness, especially among single mother families. A mother’s poverty is not neglect.
Domestic abuse is a gendered issue Ensure the Bill is NOT gender neutral.
The Bill must make clear that domestic violence is overwhelmingly perpetrated by men against women. In the year ending March 2018, 92% of defendants in domestic abuse-related prosecutions were men while 83% of victims were women; 95% of calls to domestic abuse helplines were made by women (ONS, 2018). Gender neutrality puts women in even greater danger by hiding the violence we face and enabling perpetrators to portray themselves as victims. It goes against the Istanbul Convention and has serious consequences:
1. For the family courts: it enables violent fathers to deny their behaviour while pursuing contact with children, including those they have abused.
2. For the Bill’s Domestic Abuse Protection Orders. Abusive men often make counter allegations that they are victims in order to escape prosecution; unless the legislation explicitly states that the overwhelming majority of DV victims are women, as stated in the Istanbul Convention, the police could use their new powers in Domestic Abuse Protection Orders to remove women from the family home with devastating consequences, especially for the children. Given proven police sexism, racism and other prejudices, we are deeply concerned about how these new powers may be used against families of colour.
Migrant women’s rights to protection
Although the Draft Statutory Guidance acknowledges the particular vulnerability of migrant women, there is no commitment to tackle it in the Bill.
Despite extensive evidence about the devastating impact of the No Recourse to Public Funds (NRPF) condition, the government has only agreed to another pilot study claiming it needs more information.
With other women’s organisations, we demand that the Domestic Abuse Bill includes provisions to: abolish the NRPF condition; extend eligibility for the existing Domestic Violence Rule to all women with insecure immigration status; establish a firewall to ensure that information women give when reporting domestic violence is not passed to the Home Office or used by immigration officials to detain or deport women.
“I left my country because my husband beat and nearly killed me. He was powerful and had friends in the police so was protected. My partner in the UK knew I had no rights in the UK and quickly turned violent. If I could get to a refuge I could leave but instead I’m trapped with a man who knows he can do what he likes. I tread on eggshells every day to avoid firing him up.”
Women Against Rape did a rapid survey of 40 women asylum seekers it is currently working with:
* 28 women are victims of domestic violence, of whom 14 experienced violence in the UK.
* 30 women are rape survivors.
* 32 are mothers, of whom 14 have children in the UK.
Of the 14 women who suffered domestic violence in the UK and who should be eligible for help under the Domestic Abuse Bill, 10 are destitute with no access to public funds because they have no status in the UK or they have been given status with NRPF. Two of these receive support from their local authority, under the Children Act, because they (and their children) are destitute and eight are completely dependent for food, housing and their survival on others; six are still living with an abusive man.
“I had a babysitting job before lockdown which meant that I had some money of my own but now I’m completely dependent on the family I live with who themselves have much less money than before. I can’t even buy sanitary pads or toiletries.”
“I have four lovely children who suffer alongside me. We only have a roof over our head because of a friend. I have to beg for money and get food from charities. The children haven’t seen fresh food for four weeks.”
Granting access to public funds is particularly important at this time of Covid-19, to ensure women and children are not left hungry and homeless and to protect the health of the community generally. In some European countries like Portugal and Spain, this has been recognised and immigrant women surviving domestic violence have won access to benefits and other state support.
Disabled women’s rights to protection
We support the call from Stay Safe East regarding legal protection of disabled women and disabled people generally, which must be included in the provisions of the Domestic Abuse Bill.
Criminal justice system
1. Consent to serious harm for sexual gratification not a defence (Part 6). We are glad this was added to the Bill at Commons Report Stage.
But we oppose related proposals for anonymity for all domestic homicide and all domestic abuse trials that aren’t yet included in the Bill, and may be brought up again. There are other ways to limit barristers from trashing a murder victim’s reputation, for example they could extend the restrictions on sexual history evidence in rape trials (Youth Justice and Criminal Evidence Act). There is real danger if courts are allowed to operate without public scrutiny. Open justice is a fundamental principle of criminal trials. It is normally described as a basic right of the defendant, but it is also a protection for the victim and family to have the eyes of the public on the court. We have seen the detrimental effect of family courts operating in secret, where a mother is not even allowed to discuss her child’s case with her own close relatives. Family judges get away with outdated and outrageously ignorant sexist and racist comments on rape and domestic abuse, which would not be tolerated in today’s open criminal courts.
2. Pre-charge bail – we agree with Women’s Aid that, “Changes in the Policing and Crime Act 2017 have led to a dangerous drop in the use of pre-charge bail in domestic abuse cases, and dangerous offenders being released under investigation with no conditions attached.” The government has been consulting on this Act, and we urge protection for victims now.
Say NO to the lobby of fathers who deny domestic violence
REJECT any proposals from the representatives of militant fathers’ groups who deny domestic violence and have been trying to wreck this Bill. MP Philip Davies, tried to get “parental alienation” included in the definition of domestic abuse. Davies also argued for the Bill’s gender neutrality, thus hiding that overwhelmingly women are the victims and men the perpetrators. Davies has also spoken at US men’s conferences alongside Islamophobes and male supremacists. His and others’ similar views have no place in a Bill to protect victims of domestic abuse and must be strongly opposed.
 Howard, M and Skipp, A, Unequal, trapped and controlled, Women’s Aid and TUC 2015.