You don’t get four conjoined domestic abuse cases heard speedily by the President in the Court of Appeal - in the middle of a pandemic upending the family justice system - when just a few scattered women feel their children’s safety has been compromised by the courts.
You get it after years and years of ravaged lives… when thousands of traumatised victims of domestic abuse have raised their voices, in frightened whispers, because of the terror that a judge will take a dim view and your children will be transferred to your abuser. You get it only after those thousands of victims have gathered and talked to each other, still petrified, under the radar; when extraordinarily courageous individual survivors of their partners’ violence have organised and spoken out; when hundreds of women, wearing masks because they are still so scared, not just of their former partner, but of the courts’ ire, protest in front of Parliament; when they have wept in the offices of their MPs, who themselves - I know this, because they tell me, I see their letters to their constituents, and they speak out on social media - are outraged at what they hear. You get it when journalists from different types of publication convince their editors that ‘something is going wrong here’ and despite the chilling statutory restrictions, find ways to publish at least something of what domestic abuse victims are put through by a system that does not care – is not designed to care – for them.
You get it when a group of family lawyers in East Sussex are so disturbed at what they see every day that they commission their own academic research on how PD12J is being followed - and the results are dismaying. You get it when MPs and lawyers write letters in the press demanding that the government look at the harms caused by the family justice system, and the report eventually published by the Ministry of Justice is so excoriating of every single element of the family justice system that the shame should burn those working in it from top to bottom.
And you get it when activist lawyers, whose commitment to justice runs bone-deep, work unstintingly over Christmas and New Year to bring four distraught women’s cases to the Court of Appeal, and challenge the highest judges in the land to take a long, hard look at the woeful lack of understanding of domestic abuse being played out in lower courts across the country (albeit, in these four cases, by circuit judges), and demand they listen to audio recordings of oppressive bullying inflicted in court by the powerful state - the judge - on the powerless citizen - the party.
The judgment in the four conjoined domestic abuse cases heard by Sir Andrew McFarlane, King LJ and Holroyde LJ in January will have come out by the time this piece is published in Family Law Journal. In all four cases, the women involved are asking for their allegations to be reheard. But the lawyers working on these cases have also asked the Appeal Court to issue guidance on issues they say are inherently problematic when it comes to substantiating domestic abuse, and in particular, on courts’ understanding of and attitude to coercive and controlling behaviour.
The issue of how a court is to recognise, and then find that coercive control has occurred feels particularly urgent to me at this moment – because the risk it poses can be lethal. Over the past six months, I have been working on an investigation into domestic abuse killings that have gone unrecognised by police, pathologists and coroners. The podcast series went live the week I sat down at my desk to write this. Produced by the slow news online publisher Tortoise, these hidden domestic abuse homicides have devastated the families I talked to. They illustrate the sharpest end of the dangers that victims – and fatal domestic abuse happens overwhelmingly to women – are placed in by a current or former intimate partner; the man who has terrorised them and frequently their children during their life – before ending it.
As part of the investigation I drove north up the M6 to interview Laura Ellis* the mother of a 34 year old woman who, last July, took her own life after 15 years of what I can only describe as prolonged mental, physical and sexual torture inflicted by two partners. Vivienne Taylor (not her real name) had five children, one just 11 months old at the time of her death. Both her partners were well known to police; one had served prison sentences for violence.
In the deserted cafe of a garden centre, the only place we could find to conduct the interview during the pandemic, Laura Ellis told me her daughter was in the midst of care proceedings due to concerns about domestic abuse when she killed herself. All five children had been placed in a mixture of kinship care and, for the baby, foster care. The pain felt by Vivienne thanks to the restrictions on contact with her children due to the pandemic only compounded her anguish and guilt.
And yet… it was not she who had abused her children.
Laura handed me a four sheets of closely written foolscap on which Vivienne had, over several afternoons sat in her mum’s garden, handwritten a list of the coercive and controlling behaviours to which her first partner had subjected her. She hadn’t had time to get on to what her current partner was doing. As her mum read out every line, I realised that I was hearing what could have been a handbook for domestic abusers. Here are some of them:
Say I couldn’t cope without him
Accuse me of being paranoid or mad
Accompany me everywhere
Speak for me because I didn’t understand much!
Accuse me of being a bad parent and threaten to take my children
Tell the kids I was ill, mad, couldn’t cope with them
Deliberately confuse me
Hide important documents and things
Pressurise me into drugs and alcohol
Undermine me when I asked others for help, saying “she’s mad”
Said I was selfish when I went to mums for Christmas on a day I wasn’t well enough to cook Christmas dinner, and I wanted to make sure the kids had one.
Hide my laptop in the car boot, I looked but couldn’t find it. Turned out he’d pawned it yet again. Told me I was lying, i hadn’t looked in the spare wheel well, as I wasn’t clever enough, I was too thick to do that.
Used to say he would batter (a relative) if I ever left him.
If he shouted at me and I didn’t hear him and come running, he would literally scream my name, it got to the point that when he shouted I would have to jump and “literally” run to him.
Force me to take antidepressants and say I was “fucked in the head”
Force me to go and ask my neighbour for cigs or money for him. If I didn’t do it, he’d scream at me or be snarky with me.
When I asked him for help, he’d reply to me “I haven’t got a gun with a bullet, that’s the only help you need, you’re beyond fucking help”.
That is just one page of a litany of abusive behaviour that covers eight sides of lined A4 paper. I’ll add one more, from another page, that chilled me:
Used to squeeze me so hard I couldn’t breathe, he used to say this was because he "loved me so much”
Would Vivienne have been able to prove any of this in a family court fact finding hearing where contact with children was in dispute? I very much doubt it. But the abuse she was subjected to meant social services were involved; they were being taken into care, which, her mother told me, utterly broke her. I’ve seen the note she wrote to her children in anticipation of taking her life. She promises them that she tried so hard to escape her abusers, and apologises, repeatedly, for not being able to.
The family justice system is simply not set up to protect victims of domestic abuse. As a system, it does not care about them. A parent’s sole purpose is to advance their child's welfare, and the court’s sole purpose, explicitly set out in law, makes that child its paramount consideration. But given that domestic abuse is rampant, given the appalling damage it can do to individuals who are subjected to it, and given that in the vast majority of cases, children’s best interests are integrally bound up in their protective parent's ability to care for them, this is a false distinction – and one that can have terrible consequences.
This is part of an article ‘A system that re-abuses victims is not a system fit for purpose’ by Louise Tickle. The full article, in which Louise goes on to discuss the distressing reality of the numerous fact finding hearings she has attended, will be published in March’s Family Law Journal.
*names have been changed