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Background

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), which includes organisations of single mothers, women of colour, women with disabilities, rape survivors, breastfeeding advocates, psychotherapists, men and social workers. We defend mothers and children against unwarranted separation and the devaluing of the mother-child relationship. We are in contact with hundreds of mothers and other primary carers, and children, family law professionals, organisations and concerned individuals.

The context of this Bill is the increasing public and parliamentary concern about family courts enabling abusive fathers to continue their reign of terror against women and children. Family court bias against mothers and children was confirmed in a recent MOJ Harm Review and has serious and even lethal consequences. Most couples reach amicable arrangements as any caring father knows that children need their mother. It is the uncaring and violent men who are most likely to pursue women through the courts as their priority is not the welfare of the children but the fury at losing control over their ex-partners. They use the family courts to intimidate and bully by asserting their demands, and to avoid prosecution in the criminal court.

This Briefing conveys our persisting concerns about the dangers of a gender-neutral Bill.

We support amendments aimed at stopping abusive men using the family court to reassert their rights over women and children; and amendments to end the exclusion of migrant and disabled women from protection. We support all amendments for essential resources for women and children to escape violence.

We SUPPORT the amendment by Baroness Gale on the Duty of the Secretary of State to take account of gender. But in Clause 1, gender must be included in the definition of domestic abuse.

Part 1 of Women’s Aid’s Committee Stage Briefing points out that ”the UK is a signatory to a range of international treaties and conventions that recognise that this crime is a form of gender-based violence – including the Istanbul Convention . . . which require states to recognise ‘the gendered dynamics, impact and consequences of these forms of violence and [operate] within a gender equality and human rights framework.’”

The Domestic Abuse Bill must not be allowed to pass without acknowledging that victims of domestic abuse are overwhelmingly women and their attackers men.  A gender-neutral law would undermine potential benefits of the Bill for women’s and children’s safety.  It could make women’s access to justice and protection even more remote, as men could falsely call the police on women, take our children and get us evicted, with state backing. What a travesty for a Domestic Abuse Bill!

DA Bill Lords Committee Stage – the most important amendments and principles

• We strongly oppose the amendment to Clause 1 by Baroness Altmann, Baroness Meyer, Baroness Watkins & Earl Lytton to include parental alienation in the definition of domestic abuse.
• We SUPPORT the amendment (new Clause after Clause 64) by Lord Rosser, Baroness Gardner & Baroness Jones of Moulsecoomb on the presumption of contact. But it must be strengthened to include evidence from charities/support services.  In cases involving violence where contact is allowed, there must be a presumption of SUPERVISED contact.
• We SUPPORT the amendment to Clause 1 by Lady Tanni Grey-Thompson to ensure that a carer of a person with disabilities is included in the definition of "personally connected".
• We SUPPORT the amendment (new Clause after Clause 72) by Baroness Gale, Duty of the Secretary of State to take account of matters relating to gender – recognising “that domestic abuse affects women disproportionately and is a subset of violence against women and girls.”
• We SUPPORT the amendment (new Clause after Clause 72) by Lord Rosser, Baroness Hamwee, Baroness Butler-Sloss, Baroness Bennett of Manor Castle Recourse to public funds for domestic abuse survivors.
• We PROPOSE an amendment to put a duty on the government and local authorities to make resources (principally money and housing) available for women to escape domestic abuse with their children, including by prioritising implementation of Section 17 of the Children Act. No mother should be forced to choose between staying with an abuser or having her children taken into care.  There must be resources to keep mothers and children together and S17 was aimed at that but is hardly ever implemented.  The trauma of separation has devastating life-long impacts on children and on mothers, for whom loss of their children is the worst imaginable ‘punishment’ for a crime of which they are the victim.
• We SUPPORT the amendment by Baroness Burt & Baroness Butler-Sloss Local Welfare Provision schemes.

Key facts about domestic abuse

• Domestic abuse is widespread and often deadly. Two women are killed each weekby a current or former partner.  It is estimated that a typical victim of domestic abuse endures up to 35 assaults before speaking up.[i]
• Crown Prosecution Service data shows that 93% of defendants in domestic abuse court cases are male, and 84% of victims are female. Yet women are three times more likely to be arrested for incidents of abuse.[ii]
• Five times more women than men were killed by their partner or ex-partner in the year ending March 2018.[iii]
• 89% of people who experience four or more incidents of domestic violence are women, and women victims are more likely to be seriously injured than male victims.[iv]
• 70-90% of family court cases feature domestic abuse yet less than 1% of child contact applications are refused – violent fathers nearly always get contact.[v]
• One support organisation, Women’s Aid, reported in the High Court (21 Jan 2021) a case load of 11,489 women and 13,387 children all in refuges with private law cases from 2018 till early 2020, and 156,109 women and 187,483 children supported in the community with more than half needing support with contact.
• Rape has been practically decriminalised, with just 1.4% of reported cases being prosecuted (an even smaller proportion reach conviction). Almost half (45%) of rapes are committed by a partner or ex-partner.[vi]
• Male victims are more likely to have been attacked by male partners rather than by women partners[vii].

Sexism, racism & class bias in the family courts

 The Harm Review found a pattern of “sexism, racism and class bias,” against mothers and children in the family courts, which operate in secret and so escape the discipline of public scrutiny.  This has protected them from having to change in response to women’s pressure that men’s sexual and domestic abuse should be dealt with as the violent crimes they are.

Family courts routinely blame mothers for causing the child “emotional harm” by witnessing domestic violence rather than the father who committed the violence, and remove children from their mother.  (This is the same victim blaming that rape survivors have campaigned against for decades.)  While women’s mothering is scrutinised, practically any father is considered a “good enough” parent to have unsupervised contact or residence.  No perpetrator of any other violent crime is so “rewarded”.

Over the past 10 years a militant lobby of fathers’ groups (in particular Families Need Fathers, FNF) have become embedded in the family court system.  FNF deny the extent of men’s domestic abuse against women, claiming that “in most cases, actually, the abuse is actually mutual and reciprocal abuse.  And it is usually in these situations that the worst incidences domestic violence incidents . . . happen.”  They insist that of 60,000 cases CAFCASS is currently dealing with “many of them will involve false or exaggerated claims of domestic violence and abuse”.  This flies in the face of all the evidence of domestic violence.

Proof of the fathers’ lobby undue influence is confirmed by the fact that five men’s groups are among CAFCASS stakeholders, yet only two women’s groups are.  From this position, domestic violence deniers have prejudiced CAFCASS perspective and decisions – both under its former CEO, Anthony Douglas, and under the current CEO, Jacky Tiotto, who recently addressed FNF national conference spoking warmly about FNF’s contributions (21 November 2020). Further proof is CAFCASS’s response to the sexism and other criticisms in the MOJ’s Harm Report: the internal Advisory Board CAFCASS set up to review its “performance” includes FNF!

The fathers’ lobby also has undue influence over the President of the Family Court, Sir Andrew McFarlane, casting doubt on his suitability to head the family courts.  As the keynote speaker at FNF’s conference, he said that he was “. . . pleased to be supporting FNF, since becoming president and indeed for a long time before I've had good relations with those groups in the Midlands and now nationally, we meet regularly . . . I find that I'm in agreement with very much of what is said by . . .  representatives of FNF who come to visit me.”

Response to Amendments

OPPOSE parental alienation amendments to Clause 1 by Baroness Altmann, Baroness Meyer, Baroness Watkins & Earl Lytton

These amendments would include “parental alienation” as a form of domestic abuse and define it as a situation “where A, being one parent of a child, acts in a manner or takes steps, deliberate or otherwise, so as to sever, damage, hinder, delay, harm or otherwise negatively affect the child’s relationship with B, being another parent of the child, thereby negatively impacting the child’s welfare.” This is very dangerous and undermines the presumption of the Bill to ensure that victims of domestic abuse, who are overwhelmingly women, many of them mothers, are protected from violent men.  It opens the way for protective mothers not only to have their children taken away (which happens with increasing regularity) but to prosecuted as a perpetrator of domestic abuse!

“Parental alienation” is not a form of domestic abuse but a misogynist theory and tactic used by domestic abusers to continue their reign of terror over women and children.  It originated in the 1980s from discredited US psychiatrist Richard Gardner who defended paedophilia and forced children into contact with violent fathers.  It is widely regarded as junk science among academics and researchers.

From our own research we see that mothers attempting to protect their children (and themselves) from domestic abuse are more and more frequently being accused of parental alienation by fathers, judges and by CAFCASS.  It is fast becoming the default argument of abusers against any mother who raises safety concerns. The misogynist fathers’ lobby claim that women and children lie about abuse, yet research shows that false child abuse allegations in custody cases are rare and most commonly come from anonymous reporters and non-resident parents (usually the father) rather than resident parents (usually the mother) and children (Trocme & Bala, 2005).  Parental alienation is an extension of the widely discredited myths that women commonly lie about rape.

The Harm 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.”

Mothers say:

“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.” “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 . . .”

The authorities in Scotland recently resisted concerted attempts to add parental alienation into the new Scotland’s Children Bill.  We understand from our network in Scotland that parental alienation is not used as widely as it is in England to misinform the family court against mothers who have suffered violence.

AMEND presumption of contact

We SUPPORT amendment by Lord Rosser, Baroness Gardner & Baroness Jones of Moulsecoomb New Clause after Clause 64

 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 Harm 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).  Children who do not want to see their fathers are being put into foster care or given to other family members to force them into contact – as the London Victims Commissioner said: this is state sanctioned child abuse.

“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.”

We SUPPORT this amendment to the presumption of contact but we are very concerned that:

2 (2D) says that the evidence of domestic abuse to be provided should be according to regulation 33 (2) of the Civil Legal Aid (procedure) Regulations 2012.  These regulations are over eight years old and have been significantly updated by the government, most recently in 2018.  The crucial issue is the range of agencies/professionals who can provide evidence of domestic abuse, and the time which is considered relevant (now increased from two to five years).

Since it is known that only a small percentage of domestic abuse victims report the violence they are suffering to any official body or even to their GP or health professional, it is very important to include that evidence can be provided by a domestic violence support service, as the current legal aid domestic abuse guidelines specify here.

(4) (8) would prohibit unsupervised contact only if the (parent) had been charged with a domestic abuse offence or was involved in ongoing criminal proceedings for a domestic abuse offence.  This is much too limited, especially given that most domestic abuse is unreported and, when reported, rarely leads to conviction. We think the same legal aid guidelines (as outlined above) should apply to ban unsupervised contact.

The issue of unsupervised contact is crucial as it is contact that enables abusers to continue their reign of terror over women and children.  Violent men are usually furious that the woman they abused and controlled has been able to escape them and use the children to pursue and terrorise her.  Men who behave in this way are not interested in their children, except as a weapon against their former partner.  It is not in the interest of the children to have contact with a father who abuses them or their mother.  Such contact is terrifying and potentially lethal.  It also teaches children that men’s violence is normal and acceptable since they are being forced to endure it, and that women count for little since their mother’s warnings are dismissed and ignored by the authorities.

The father who murdered Claire Throssell’s two sons by setting fire to an attic he had lured them into was able to do so because he had unsupervised contact.  Virtually all the children in the Women’s Aid 19 Child Homicides were murdered in the course of unsupervised contact (in one or two cases the child/ren actually lived with their father).  The same Women’s Aid report notes that “One study of 203 child contact orders found that there was only one order prohibiting any contact, and only 3% of contact orders were for supervised visiting.”

If there is to be contact, there should be a presumption of supervised contact, especially when court proceedings are just beginning and findings on domestic abuse have not been made.  In our experience, abusive fathers who are allowed only supervised contact (even if only for an initial period) soon lose interest in seeing their children, confirming mothers’ experience that they were using contact with the children to get back at the women who had left them.  In many cases fathers used unsupervised contact to refuse to return children to their mother.  This uncaring and selfish behaviour is extremely damaging to children.  Their safety and the safety of their primary carer, in 90% of cases the mother, must come first.

Disabled women

We SUPPORT the amendment to Clause 1 by Lady Tanni Grey-Thompson to ensure that a carer of a person with disabilities is included in the definition of "personally connected".

And we support New Clause by Lord Ponsonby of Shulbrede & Baroness Grey-Thompson to ‘Repeal of provisions about defence for controlling or coercive behaviour offence which seeks to repeal the ‘carers’ defence’ for the offence of controlling or coercive behaviour in intimate or family relationship.

Migrant women

We SUPPORT the amendment by Lord Rosser, Baroness Hamwee, Baroness Butler-Sloss, Baroness Bennett of Manor Castle
After Clause 72 New Clause  Recourse to public funds for domestic abuse survivors

It is essential to ensure all survivors of domestic abuse can equally access support, welfare systems and legal tools that provide protection from abuse, without discrimination on any grounds, in accordance with 4(3) of the Istanbul Convention.  Ensuring 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.

We SUPPORT the amendment by the Lord Bishop of Gloucester, Lord Rosser, Baroness Hamwee
New Clause  Victims of domestic abuse: leave to remain and the DDVC.  But we are concerned that it gives power to the Secretary of State to “issue guidance to providers of services about the assessment of eligibility” so we suggest that there should be a comprehensive definition of who is eligible as a victim of domestic abuse as outlined in the previous amendment on Recourse to public funds.

We SUPPORT the amendment by Baroness Meacher, Baroness Wilcox of Newport, The Lord Bishop of London, Baroness Hamwee
New Clause Victims of domestic abuse: data-sharing for immigration purposes

Access to resources – crucial to protecting victims

There can be no protection from domestic abuse without women and children having the resources to leave violent partners.

We SUPPORT the following amendments:

New Clause Baroness Burt, Baroness Butler-Sloss Local Welfare Provision schemes – this must include implementation of Section 17 of the Children Act so that resources are provided to keep mothers and children together.

New Clause: Baroness Lister, Baroness Meacher, Baroness Primarolo, Baroness Burt Repayment of universal credit advances

New Clause: Baroness Lister &The Lord Bishop of Manchester Benefit cap: domestic abuse

New Clause: Baroness Lister, Baroness Burt, Baroness Meacher, Baroness Sherlock Duty to assess impact of social security reforms on victims of domestic abuse.

Other amendments we support or oppose and why

SUPPORT: New Clause Baroness Helic, Baroness Wilcox, Baroness Hussein-Ece, Baroness Butler- Sloss Effective protection and support for all victims of domestic abuse.

SUPPORT: New Clause Baroness Kennedy, Baroness Hamwee, Baroness Jones, The Lord Bishop of Gloucester Reasonable Force in domestic abuse cases.

SUPPORT: New Clause Baroness Kennedy, Baroness Hamwee, Baroness Jones, The Lord Bishop of Gloucester Defence for Victims of Domestic Abuse who commit an offence.

SUPPORT: New Clause Baroness Jones Anonymity of domestic abuse survivors in criminal proceedings.

SUPPORT: New Clause Lord Kennedy, Baroness Bull, Baroness Burt, The Lord Bishop of London Evidence of domestic abuse for the purposes of legal aid: restriction of fees.

SUPPORT: Clause 73 –The DABill’s relationship to other Violence Against Women and Girls strategies. Page 58, line 8, at end insert “and any strategy to end violence against women and girls adopted by a Minister of the Crown.”

It is catastrophic when the government through legislative and funding changes systematically separates Domestic Abuse from other forms of violence against women and girls. Overwhelmingly these crimes are gender-based and committed by men, often against an intimate partner, or relatives. Rape and many other sexual offences are commonly committed by partners as part of a pattern of domestic abuse. WAR campaigned for 15 years to get rape in marriage made a crime – the law was finally changed in 1991. In practice, we have had to complain when police and courts dealt with reports of domestic violence separately from rape, thus undermining the prosecution of violent men as only a partial picture of their violence is considered. Women’s struggle for legal protection, justice and resources has been constantly weakened by these procedures. This Bill and its consequent impact on society must be part of any Violence Against Women and Girls strategy.

OPPOSE: New Clause Baroness Greengross, Lord Hunt, Lord Randall Social workers: powers of entry rather than protect victims of violence – this could endanger women and children

Domestic Abuse Protection Order (DAPO) 

Problems with Clause 33: We remain concerned about the implementation of DAPOs.  A key problem of any laws against violence against women is the refusal of the police to take action against their attacker.  Well documented police sexism and racism are, a collapsing criminal justice system with a backlog of over 50,000 cases waiting for a court date, and the detrimental effect of legal aid cuts are the context for DAPO. Yet these issues have not been expressed in debates on DAPO, so we have little confidence that much will change with the new DAPO.

We share the concerns in Women’s Aid’s Briefing that when a report to any authority has come from a concerned third party there must be a clear obligation in the Bill to consult the actual victim of domestic abuse about her wishes.

https://supportnotseparation.blog/  @NotSeparation sns@legalactionforwomen.net

https://womenagainstrape.net/ @againstRape war@womenagainstrape.net

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[i]  https://crimestoppers-uk.org/domesticabuse

[ii] Professor Marianne Hester (2009) Who Does What to Whom? Gender and Domestic Violence Perpetrators and Crown Prosecution Service, Violence against Women and Girls Crime Report, 2014–2015

[iii] https://www.refuge.org.uk/our-work/forms-of-violence-and-abuse/domestic-violence/domestic-violence-the-facts/ Office for National Statistics (2019) Homicide in England and Wales: year ending March 2018

[iv] Walby and Allen (2004) Domestic violence, sexual assault and stalking: Findings from the British Crime Survey

[v] Domestic Abuse, Child Contact & the Family Courts – All Party Parliamentary Group on Domestic Violence Parliamentary Briefing [2018]

[vi] ONS 2018: estimates extracted from the Crime Survey for England and Wales (CSEW) on the relationship between the victim and offender for rape or assault by penetration (including attempts) experienced since age 16 by adults aged 16 to 59. Data are presented for the year ending March 2017.

[vii] SafeLives Insights data shows that those identifying as gay men were experiencing physical abuse at the highest rate; 75% of gay men within the Insights dataset had experienced physical abuse, compared to 65% of other LGBT+ groups. https://safelives.org.uk/sites/default/files/resources/Free%20to%20be%20safe%20web.pdf