Domestic Abuse, Parental Alienation, and Sorites Paradox – It’s all just semantics…
If you have a grain of sand, that is not a ‘heap’. If you add another, that is still not a heap. Clearly, the addition of one grain of sand is going to make no difference to whether or not you have a heap. The problem is that, on this basis, you will never have a heap. But we know that, at some point, you WILL have a heap…but when? That’s Sorites Paradox.
This kind of problem arises all the time in law. For example, it is not legal to have sex if you are 15 years and 364 days old, but perfectly legal 24 hours later. Where do you draw the line, and on what basis? Who decides, and why?
The answer seems to be that ‘you have to draw the line somewhere’.
The UK Government has just released some guidance about domestic abuse. Help is available from the Department of Work and Pensions (?!). Who is this help available for? Well…
“The cross-government definition of domestic violence and abuse is:
any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:
There are two things to note here. The first is that domestic abuse does include ‘psychological and emotional’ abuse. The second is that this help is available to persons ‘aged 16 or over’.
Victims of psychological and emotional abuse aged 16 or over
Well, what reasonable person would argue that these victims deserve support? Nobody. That much is, surely, uncontroversial.
Victims of psychological and emotional abuse aged under 16
The problem with this initiative for STOPPA is that there appears to be an assumption that people under 16 are already adequately catered for. We know that this is not true. Not in practice.
The Psychological and Emotional Abuse of Children
The law provides plenty of remedies for the punishment of persons that abuse children.
Let’s start with S 66 of the Serious Crimes Act 2015, which amends Section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), to add psychological injury to the offences listed. Simply put, it is an offence to abuse a child psychologically.
Next, we have S37 of the Children Act 1989, which empowers the court to make a care or supervision order in respect to any child where, to do so, benefits the child’s welfare. This can be read, for our purposes, in conjunction with S43 of the Act, which says
“Child assessment orders.
(1) On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—
(a) the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;
(b) an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm”
So, this is all very simple.
It is a criminal offence to abuse a child psychologically, and (separately, or in conjunction with this sanction) the court can order an investigation and, if necessary, order that the child be taken into the care of a Local Authority if it is of the view that there is a risk of ‘significant’ harm to the child.
So far, so good. Good theory. What about in the real world?
In practice, as so often with the law, we come down to semantics. And this is where Sorites rears his ugly head. Legal books are filled with cases that address the issue of semantics. What does ‘reasonable’ mean? What does ‘subjective’ mean? What does ‘objective’ mean? What does ‘semi-objective’ mean? What does ‘country’ mean, and so on. The rest of the world seems to know instinctively what ordinary words mean, but the law must be precise. So countless cases are heard in courts all the time that attempt to define terms that most of the rest of us take for granted.
This is right and proper. For your idea of ‘green’ might be different to mine. Your idea of what constitutes a ‘table’ might be different to mine and so on. The law is there, amongst other reasons, to define terms.
In this context, we have to decide the meaning of two common English words – “psychological” and “significant”.
And, again, we are faced with the age-old problem that we all have different ideas about what these words mean. This is where the law is exposed as a somewhat clumsy interpretative and definitional tool. Because you might ask 100 judges what “significant” means on any set of facts, and get 100 different answers. You might ask 100 different experts what set of facts would amount to “psychological” harm and get 100 different answers. It all depends on the facts of the case.
But surely there are some cases where everyone would agree that the child has suffered, or is suffering, “significant” harm. And there are. But there is also a whole truckload of cases where, as laymen, we would say “surely this harm is significant” and judges seem to go quiet on the issue.
There will also be cases where ordinary people would regard harm as psychological or emotional where a judge might say “well, yes, that might be some kind of harm, but it is not serious enough to be classified as psychological.”
Is the harm caused by PA “significant” and can it really be described as “psychological”?
If the answer to both of these questions is “yes” then, logically, there should presumably be a large number of prosecutions under the Serious Crimes Act, and a large number of children taken into care following the psychological abuse caused by PA, right?
But there is not.
So, it follows that somebody somewhere does not feel that PA causes psychological harm, and/or that any harm so caused is not “significant”.
Who are these people?
Well, those that determine whether there is a possible breach of the criminal law are the police and the CPS (Crown Prosecution Service). Whether there is an actual breach, and a criminal offence, is decided by judges, juries and magistrates.
Those that determine whether children need to be protected under the Children Act are judges guided, crucially, by social workers.
A good place to start is the case of re W  EWCA Civ 772.
This is a case where Lord Justice Ryder gave the leading judgment. He thought that, on the facts of this case, the harm suffered by the child was “significant”. Lords Justices Underhill and Laws agreed.
The Facts of the Case
The child in question was an eight-year-old girl. Judge Cardinal (a County Court Judge sitting as a High Court Judge) had ruled that the girl should be removed immediately from the care of her mother. The mother asked for permission to appeal. The child was represented by a Guardian. The Guardian, the father and the Local Authority all opposed the appeal.
At a finding of fact hearing in December 2010 the court concluded that the child had been sexually abused by her paternal grandfather. There was then a further finding of fact hearing before Judge Cardinal that immediately preceded the child’s removal on 11 November 2013 and which dealt with further serious allegations made by the mother against the father.
Judge Cardinal made the following findings. He held that the mother
1. (i) had wrongly suggested that the child did not want to see her father, and was frightened by him;
2. (ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;
3. (iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child’s life;
4. (iv) believed that the father was involved in the child’s abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;
5. (v) misled the court by saying that it was the child rather than herself who struggled with the grandfather’s abuse;
6. (vi) deliberately put the worst interpretation on events to place obstacles in the way of the father’s contact;
7. (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);
9. (ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning – the child was and is subject to influences which she should not be;
10. (x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and
11. (xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.
The judge concluded that the child had suffered significant emotional harm in her mother’s care within the meaning of section 38 CA 1989 and that her psychological safety required her immediate removal from that care.
The mother argued that there was no risk to the child that necessitated immediate separation, that removal of the child was disproportionate, that the mother’s care was better than ‘good enough’ and that she had had insufficient notice of the possibility of the child’s removal.
Lord Justice Ryder held that there was no procedural unfairness. He further held that
“There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case.”
The mother’s appeal was dismissed.
The reason that this case is such a good starting point for our purposes, is that, given Judge Cardinal’s findings of fact, this child was clearly suffering significant harm at the hands of her mother. STOPPA argues that there can be no serious argument about that.
The question that arises, then, is this:
Are the facts in this case so much more serious than other cases that have not been regarded as involving serious emotional/psychological harm?
If not, then we must ask why more cases are not moved into the public law arena, moving children to local authority care. (We will leave aside, for the moment, whether such a move does actually serve the best interests of the child).
If this case is really serious and so much more serious than other cases, what is it about this case that ‘tips the balance’?
What if the damage in this case were just a bit less serious?
We see above that there were 11 findings made by the judge that, collectively/cumulatively ‘tipped the balance’. Here comes Sorites again… What if one of these were removed? Or two? Or five? See the problem?
This is why cases have to be decided on their own facts, some would argue.
However, we could also argue, just as effectively, that the balance should be tipped, and the harm regarded as “significant” if just some of the key findings were replicated in other cases. In other words, we could and should use cases like this to provide, at the very least, guidelines as to what might constitute “significant” harm for the purpose of the Act. Our telos should be certainty. Certainty is a worthy goal. Not always easy to achieve, of course, but children need it in their daily lives, and litigants need it in their dealings with the courts.
Let’s look at finding 7 – to remind ourselves:
“7. (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);”
Let’s suppose that this were the only finding of fact – that the other 10 findings were just not there.
Could it be said that encouraging a child to make false allegations of sexual abuse against her father (or anyone else) amounts to “significant” harm to the child? To emotional/psychological abuse? STOPPA intends this question to be rhetorical. Is it possible that such encouragement could NOT be abusive? Is it possible that, being abusive, it could not be regarded as “significantly” so?
What about finding 8?
“8. (viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;”
We could go on. The point is that every time a judge makes a finding like finding 7 or 8 it should not be difficult to conclude that there is significant emotional/psychological harm to the child.
So – are there other cases where such findings were made, and, if so, was an order under SSs 37 – 43 of the Act then triggered? And if not, why not? And, crucially what do we do if such harm is found to have occurred? Well, get the child outta there for a start! Moved to Local Authority care? Maybe, if there is some kind of risk to the child at the other parent’s house. Moved to the other parent, if there is no risk and safeguarding procedures have been conducted? Of course!
Are there other cases involving false allegations against the TP?
You bettcha! According to Families Need Fathers, false allegations are made somewhere between 48% and 63% of the time. Looking at the case law, you might think this figure to be higher. At all events, false allegations are very, very commonplace in PA cases. This is not open to serious doubt.