There is a somewhat disagreeable tension between domestic violence and parental alienation. I would like to try to analyse this, as it may well lie at the heart of the problem in getting PA recognised as a ‘thing’ – a proper psychological issue worth investigating.
In order to do this, I think it would be helpful to divide cases into two categories, viz:
- Cases where child contact or change of residence is in issue;
- Cases where child contact or change of residence is not in issue;
Taking these in reverse order, let’s look at cases where DV is alleged, but the husband (as it nearly always is) is not seeking contact or a change of residence. The impression I get is that women feel that courts do not grant injunctions quickly or easily enough, or that allegations are not taken seriously. I do not know if this is true, but for these purposes it doesn’t need to be. I am going to assume that this charge is true – courts are rubbish at dealing with cases where women (usually) have been physically or sexually abused.
The first question to ask is whether allegations of physical or sexual abuse against the child are being alleged too. I do not know the answer to that and will do some research. For the moment, I will guess that these cases usually do NOT contain allegation of abuse by the man on the child. That seems reasonable to me, for the following reasons:
- To get an injunction only allegations (‘proved’ – ‘on the balance of probabilities’) against the wife are necessary;
- The wife in these situations is seeking, primarily, an order that the husband stops abusing and/or is ejected from the matrimonial home – she is not (necessarily) looking to punish the husband by denying access to the children, not primarily;
- She should not be seeking orders preventing contact because the ‘beef’ is between the wife and the husband – there may be no objection to contact per se. Of course, it may well be that orders preventing contact are made, but that is not the woman’s prime motive. She just wants her husband to stop beating her up;
- Even if the man is shown to have been abusive to the wife, it doesn’t mean he will be abusive to the kids, or anyone else. It might – but not necessarily;
- The abuse has usually been going on for some time. In PA cases the allegations invariably relate to the man’s conduct post-separation (curiously enough…);
- There may be independent evidence of the abuse such as statements from witnesses, police reports, medical evidence and so on.
So, I am going to assume, being generous, that the allegations are always true, and that the courts are useless in some or most or all of those cases. I don’t think it matters.
Now, to consider cases where contact is an issue – where the man wants it, but the woman does not want to give it.
There may be many reasons why the woman wishes to prevent contact from being unfaithful to leaving the top off the toothpaste. None of these spurious reasons justify a man being denied contact with his child, or, more importantly, the child being deprived of contact with a father he loves. These cases would be easy which is why such spurious allegations can’t be used to support an injunction application. And that’s why DV is alleged. It’s serious. And it gives the woman that complains some ‘traction’ in her argument that contact should be denied.
What about if the woman alleges violence against her, but not against the kids? Is this adequate reason (subject to proof?!) to deny contact? Is a man more likely to abuse his kids if he also abuses his wife? Yes, possibly. But by no means necessarily. The argument might be that, as he has shown a tendency to bully weaker people (the wife), there is some risk that he will bully and intimidate his kids. This case is a tricky one, and one that the judges will have to take on a case-by-case basis. Sometimes denying contact may be justified, perhaps.
What do we see, though? We see allegations of abuse being made, routinely, which are not investigated by the courts (we know this from our survey). Why don’t judges take these allegations seriously? Because judges know that they are false and being used merely to prevent contact, punish the man and MAKE HIM SUFFER. And how do judges know this? Experience. This judge has sat on his or her (usually) fat bum and heard these kinds of allegations for years. He knows them to be false – only used to prevent contact. So, what’s the point in giving them credence? The answer is simple – the judge can use these allegations, which he knows damned well are false, to deny contact. But WHY would the judge want this, given that the Act says that the courts should assume that contact between a child and both parents will be good for the child?
What goes on in the family courts is completely illogical. Judges are not illogical. They are trained to be independent, objective observers.
So, the judges are doing this for political, not legal, reasons. And the political objection is, I think, this:
We know from re A and other cases that a fact-finding hearing is a MUST. This is simply because in PA cases, allegations may be false – they almost always are. And the only way to determine if they are false is to have a fact-finding hearing, where both parties give evidence and the judge determines who is lying. After all, it’s a zero-sum game. Either the allegations are true, or they are false. And you can only work out which by examining and cross-examining the parties (of course there is never any independent evidence in these cases, like police or medical reports because the allegations are untrue). All the judge has to do is work out who is lying and this should be easy for an experienced judge who has spent 20 years listening to people lying to him.
So the BIG question is “Why judges do judges not order fact-finding hearings?”
The answer, I think, is this: Fact-finding hearings use up a lot of court time. Much cheaper and easier for CAFCASS to do the investigating. And a vast majority of judges (Mrs Justice Parker is an honourable exception) simply go along with what CAFCASS say. But CAFCASS are politically anti-man. We know this, because when they did their report on this subject, they consulted just one pressure group – Women’s Aid. To make matters worse, the ‘evidence’ that they glean is not taken under oath, and the husband is not able to cross-examine. Further, the child tells his story to CAFCASS without the husband (perhaps for good reason) being able to ask the child questions. Also, every bit of ‘evidence’ that comes from the child’s mouth is spoon-fed to the child by the alienating abuser. In addition CAFCASS have a backlog of cases. Finally, CAFCASS are horribly under-funded and overworked.
Given this combination of factors, it is no surprise that the family courts consistently deliver (when they get ‘round to it) unjust results.
So what’s the answer?
If there were enough funding, CAFCASS officers could be trained properly (by which I mean de-programmed), and you could hire more of them, and they could do their bit more justly and quicker. Alternatively, spend the money on getting more judges, such that they would not have to use CAFCASS to do the investigating – judges could simply order an early fact-finding hearing every time.
Having read ‘The Secret Barrister’ (about the inadequacies of ‘the system’ in criminal cases) and investigated, for example, mental health issues, it is clear that MONEY is a problem everywhere. Yes, you can look at lots of other factors, but the fact is that MONEY is the key.
And, after all, the ones being hurt are children. And they don’t have the vote.