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BH&O Tony Roe

A public inquiry into the family justice system?

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First published in Family Law

“Call for inquiry into abusive parents’ access to children” was the story on the BBC website on Thursday (15 May). It plugged a feature on the BBC’s Victoria Derbyshire programme. For early birds the story was also at the top of the news on the Today show on Radio 4 but nowhere else.

What was this all about and what do we know? Initially very little outside these two sources. Was this simply the BBC show plugging? It was more than that.

The BBC website announced that it had “learned that 123 MPs from seven different parties have now come together to sign a letter to Justice Secretary David Gauke calling for an independent inquiry into the family courts “to establish the extent of the problem and if more fundamental reform is required”…

Labour’s shadow policing minister, Louise Haigh MP, said it was “horrifying that even in proven cases of sexual assault, severe domestic abuse, rape, murder in some cases, men are still being encouraged and granted access to their child”. She added: “If they’re a known risk to mother or child, then we need to assume that contact probably isn’t best for the child and grant it only in certain circumstances.”

When there is a court-ordered contact, a parent can be at risk of being fined or going to prison if they fail to send their child on the unsupervised visit”.

I make no apologies for quoting the BBC in detail – after all, that’s all we have got. Sadly, these succinct paragraphs raise more questions than they answer. What is this letter? What is its content? Can we see a copy please? Who were the MPs?

It is unfortunate that the BBC hasn’t explained the detail. Isn’t the first rule of journalism to “show your working out?” It is not as if they need to protect their sources, is it?

My requests of a couple of MPs to supply a copy of the letter went unheeded. So did my request for comment. A barely legible copy is available on Louise Haigh MP Twitter feed. It refers to the “lack of transparency of the family courts essential in maintaining the privacy of families and children (which) does not allow scrutiny and masks decisions that are made contrary to the interests of victims of domestic abuse, rape and violence or their children”.

Louise Haigh MP took the opportunity of Prime Minister’s Question Time to ask for an independent inquiry into the family courts. She referred to research by the BBC’s Victoria Derbyshire programme that revealed that, in the last five years, four children have been murdered by a parent after the family court had granted contact to “known abusers”. This research was based on an analysis of serious case reviews for the period. The programme claimed that dozens of parents had told the show that their abusive ex-partners were granted unsupervised contact by the courts.

The Prime Minister was asked to agree that there was “something wrong with a system that forces contact between children and parents that are known risks to that child and if she does agree will she commission that public inquiry today?”

The Prime Minister turned down the appeal for a public inquiry, saying that the Ministry of Justice had not seen evidence to suggest that such an inquiry is necessary. She replied: “The family court system should never be used to coerce or to re-victimise those who have been abused, and a child’s welfare must be the paramount consideration for the court in any proceeding.” She added that the President of the Family Division had published some new draft guidelines the previous week which provided “greater clarity on some issues around the family courts”.

The Prime Minister was referring to the President’s draft guidance for consultation on reporting in the Family Courts published on 8 May. The document acknowledges the need for greater clarity and guidance in relation to applications by journalists to vary or lift statutory reporting restrictions. It builds on Practice Guidance (Family Courts: Transparency) 2014 1WLR 230 and recent practice guidance on anonymisation.

So no public inquiry then? No. A shame about that. However, on 21 May the Ministry of Justice announced that a panel of experts was to review how the family courts protect children and parents in cases of domestic abuse and other serious offences. The panel was to comprise senior members of the judiciary, leading academics and charities. A public call for evidence was promised imminently.

The MoJ said that this move followed responses to the government’s domestic abuse consultation in which concerns were raised about the family courts’ response to potential harm to children and “victims”.

Justice Minister Paul Maynard said: “Some of the most vulnerable in our society come before the family courts, and I am absolutely determined that we offer them every protection. This review will help us better understand victims’ experiences of the system, and make sure the family court is never used to coerce or re-traumatise those who have been abused. Its findings will be used to inform next steps so we can build on the raft of measures we have already introduced to protect victims of domestic abuse.

The MoJ said that, specifically, the work will:

  • “examine the courts’ application of Practice Direction 12J – this relates to child arrangement cases where domestic abuse is a factor
  • examine the courts’ application of ‘barring orders’ which prevent further applications being made without leave of the court under the Children Act 1989
  • gather evidence of the impact on the child and victim where child contact is sought by someone alleged to have, or who has, committed domestic abuse or other relevant offences”

The MoJ added that this review will build on the draft Domestic Abuse Bill published in January which includes measures to ban abusers from directly cross-examining their “victims” in family courts.

It said that the panel would make recommendations and report back within three months. Three months is not long enough. Indeed, this was the message of a joint letter signed by 37 individuals including Jenny Beck, co-chair of the Legal Aid Practitioners Group, and Dame Vera Baird QC, the newly appointed victims’ commissioner. Instead, the signatories called on Justice Secretary, David Gauke, to set up an independent inquiry.

The letter also apparently raises concerns about the application of Family Procedure Rules 2010 practice direction 12J, which explains what the court must do where there is reason to believe a child or party has experienced domestic abuse or is at risk and provides for fact finding hearings in such circumstances.

So, we have a Prime Minister claiming that the MoJ does not have the evidence to have a public inquiry. It may be stating the obvious but, without more openness in the family courts the evidence the MoJ supposedly lacks will not be visible. In place of an inquiry the MoJ announces a three month review. Such a short period means that any review may be little more than cursory. It also puts undue pressure on panel members who want to do a proper job. The MoJ should announce a public inquiry now. How many more children need to die or be harmed at the hands of an abusive parent granted contact? Frankly, children deserve better.

Tony Roe,
Consultant solicitor and arbitrator

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