Evidence to Home Affairs Committee on Domestic Violence, 5 July 2018

Summary: This evidence covers five key policy areas that result in increased vulnerability to domestic violence and lack of resources to escape violent men:

1. Family courts and domestic violence
2. Austerity cuts and domestic violence
3. Destitution – a recipe for domestic violence
4. The hostile environment for victims of domestic violence in immigration and asylum procedures
5. Improving the police and CPS response to domestic violence, and victims’ experience of the Criminal Justice System

 1. Family courts and domestic violence (DV)

1.1 We are part of the Support Not Separation Coalition – a national network of mothers, grandmothers and other kinship carers, campaigners, psychologists, social workers, academics and other professionals. Reporting DV has become a major reason children are removed from their mothers often with the excuse that they are ‘at risk of future emotional harm’.  It is contrary to the welfare of the child and the mother, who is usually the child’s protector, for the child to be removed from her care.

1.2 Mothers’ experience of family courts is that domestic violence is often not believed, they are not given the protection they need, and are in every way disadvantaged – from legal aid to cross-examination by their attacker. Their trauma as a victim of a controlling relationship is not taken into account by judges who are often sexist and expect unrealistic standards of evidence while often excluding evidence such as reports from support organisations like ourselves or refuge workers.

1.3 In our experience the relevant Practice Directions (3AA and 12J) to assist vulnerable witnesses in the family court are often not implemented, and it is too soon to know whether recent changes to 12J (2018) are helping.

1.4 Family courts cannot fundamentally improve the treatment of vulnerable witnesses until they address the shocking disbelief commonly expressed by judges and other professionals when mothers or their children report that they have been victims of rape or other violence, including coercive and controlling behaviour by the father.  This bias against mothers and children has been well-documented: see Suffer the Little Children and their Mothers by Legal Action for Women 2017, and Domestic Abuse, Family Courts and Routine Failure to Protect Children by Mothers Unite UK 2017, Courts (Abuse of process) Bill 2018 presented by Liz Saville Roberts MP, Women’s Aid research (May 2018).  These all show that mothers still face routine disbelief and even questioning by their abuser in family courts.

1.5 In general, our experience is also that children’s wishes are often disregarded and mothers’ warnings about safety are disbelieved or ignored.

1.6 The family court (eg in Practice Direction 12J) recognizes that children suffer harm from witnessing DV to their mother, but in deciding to remove the child from the mother, they take no account of the harm that they will cause with that separation. In New York, the separation from the mother has been recognized in a 2002 precedent case as more traumatic to the child than witnessing DV, and courts are no longer allowed to take children from their mothers on that basis. The same principle needs to be applied in the UK.

1.7 Section 17 of the 1989 Children Act instructs local authorities to use their resources to support families so that children can stay within the family instead of being removed.  But it is rarely used, especially to support mothers who are DV survivors. It’s implementation must be prioritized.

1.8 Instead of support and protection, women victims of DV and children are punished.  We have been involved in a number of cases where children were taken from the mother when she reported DV or when it was discovered that she was a victim, traumatizing the child who was then placed with strangers.

1.9 Women are damned if they report DV and damned if they don’t. Either way, the father’s violence is blamed on the mother who is accused of failing to protect the child. Why isn’t the State instead acting against violent men?

1.10 Mothers who are particularly vulnerable to injustice in family courts include those who are victims of repeated rape and DV, BME mothers, migrant and immigrant mothers, those who are mentally disabled, single mothers especially those who are working class and/or on benefits, and all those who are denied legal aid.

1.11 It is outrageous that a family court judge has the power to rule in a Finding of Fact hearing whether or not a woman was raped or suffered violence.  These judges are sometimes more sexist than the rape-ticketed judges in the criminal courts.  Family courts have not kept pace with changes in other courts.  This is largely because criminal courts are public while family courts are not, what goes on there is little known and family court judges are not publicly accountable.  Some of them don’t know the law on rape or DV, and others have belittled rape as insignificant and repeated DV as unlikely to have happened.  The secrecy of family legal proceedings also cuts off the mother’s opportunities to seek support, keeping her isolated and increasinging her vulnerability.

1.12 Many social workers are also biased against mothers – blaming the woman is easier than confronting a violent and bullish man.  Budget cuts to local authorities have certainly contributed to harsher uncompassionate decision-making but merely increasing funding will not address the institutional bias in the system.  Sexism, racism and class bias needs to be addressed so that mothers and kinship carers are not treated as disposable or irrelevant in their child’s life, to be replaced by a foster carer, a children’s home or adopted by a better off family.

1.13 We are opposed to the privatisation of children’s homes and adoption services, which introduce a profit motive.  There is clearly a conflict of interest if agencies which are reporting to the court on what is best for the child are making money from children being taken into care.  The motivation should instead be the child’s welfare, and putting resources into helping women and children escaping domestic violence, not separating them.

1.14 In some cases the children are given to the father and the mother is banned from seeing them if she continues to raise that he is a danger to them.  The bias in favour of fathers even when they have a record for violence is extraordinary.  Even men with previous convictions or non-molestation orders can be concealed during the family case.

1.15 We can only conclude that the courts want men - even the most violent - to have access to their children and to their former partners, whatever they may say and whatever the consequences for safety.

1.16 The hostile fathers’ lobby, led by Families Need Fathers, has the support of the NSPCC and CAFCASS, and their recent campaign to get the authorities to recognize that they are victims of parental alienation is a worrying step towards misogyny.

1.17 It is well-known among mothers’ networks throughout the UK that men use the family court as a vehicle through which to continue to coerce and control a female partner who has left them.

1.18 Men are using the family court to get investigations of rape and DV dropped.  We know of cases where the police stopped investigating after a judge decided he didn’t believe the mother.  We also know of a number of cases where abusive men dared their victims to call the police as social services would come and take their children into care.  The mothers were petrified and didn’t report the violence as a result. Violent men are very confident – after all, they generally have the power of higher wages over women, and also the backing of the authorities which are more likely to believe them than women.

1.19 Mothers whose immigration status is dependent on staying with a violent partner are at particular risk.  Women in these situations have also experienced bullying and intimidation including terrifying threats to report them as “illegal overstayers” to the Home Office if they dare report the violence.  Family courts are far more likely to believe men and deport women causing untold harm to mothers and their children.

1.20 The State has to stop assuming that a man who is violent to his child or to his female partner is a good father.  Children are being forced into unwanted contact with violent uncaring fathers against their will.  Some children’s reports are dismissed as the result of manipulation or coaching by their mother.  On the other hand, we have seen cases where a child said their mum has once slap them and the child was removed from that mother, a totally disproportionate response.

1.21 None of this is in the interests of the child – a key principle that family professionals are supposed to uphold.

1.22 The government is proposing to train a wide range of professionals to spot domestic abuse.  But what are they supposed to do about that abuse?  Every state agency has become more intrusive and punitive while offering very little help as a result of wide-ranging funding cuts.  Does spotting abuse result in more children of DV victims being taken into care?  Does a mother lose her housing after DV?  If she lost her job, what welfare benefits are left to support her?

1.23 Action points - We strongly recommend that the family courts should:

• End the secrecy of family court proceedings. They must be open to public scrutiny in a way that protects the child’s identity (eg call the parents A and B).
• Stop forcing children into unwanted contact with violent uncaring fathers.
• Stop men using the family courts as a vehicle through which to continue to control a female partner who has left them.
• Use Section 17 to provide resources to families who are poor, rather than take their kids away.
• Reverse the privatisation of children’s homes and adoption services.
• Stop taking children from mothers who report or are victims of domestic violence. They need protection not separation.

 2. Austerity cuts and Domestic Violence

2.1 DV has to be viewed in the context of the life conditions of women and children and the policies that help or hinder their conditions.  The government has cut women’s escape routes out of DV by massively cutting benefits, social housing, legal aid, advice lines, and funding to refuges.  Of the austerity cuts 86% have fallen on women.[1]  Many already cannot get appropriate mental health treatments on the depleted NHS.  Merely training officials to spot violence is not going to address any of this; it will instead increase state powers against women and children.  In the absence of resources and help, state agents such as social workers tend to prioritise policing mothers and punitively removing their children.

2.2 Research shows that low income Black and Asian women are the poorest and pay the highest price for austerity. Camden where we are based is ranked the 15th most deprived borough in London and has one of the highest rates of child poverty - 60% of children live in low income families. Mothers risk their children being taken into care when their poverty is equated with “neglect”. In 2011, 56% of Camden’s residents described being of Black minority ethnic origin or non-white. The overwhelming majority of rape and DV victims who come to us for help are working class and disproportionately affected by poverty, racism and other discrimination compared to the general population.

2.3 We refer you to recent evidence to the Work and Pensions Committee by WinVisible – Women with visible and invisible disabilities, to which we contributed. Universal Credit paid to the man in the household is a recipe for DV, as is the benefit cap:

2.4      ‘The single monthly payment when paid to violent men is as dangerous as the total benefit cap, which is condemned by Women Against Rape for trapping women and children with violent men, and for penalising single mothers fleeing violence who rely on benefits to pay the rent in their safe accommodation. When the total benefit cap was first challenged at the Supreme Court in 2015, although the overall appeal failed, Lady Hale, currently President, stated: “The prejudicial effect of the cap is obvious and stark... This prejudicial effect has a disproportionate impact upon lone parents, the great majority of whom are women, and is also said to have such an impact upon victims of domestic violence, most of whom are also women”’(para 180, see http://www.bailii.org/uk/cases/UKSC/2015/16.html

2.5 Action points

• We support WinVisible’s demands to Stop and scrap Universal Credit, to reinstate disability benefits (including for women with mental ill-health caused by the trauma of domestic rape and other violence).
• Reinstate welfare and housing benefits and end benefit sanctions
• Reinstate legal aid.
• Fund emergency and permanent housing for women fleeing violence beginning with the established network of refuges. Housing benefit is essential for refuges to survive.

3. Destitution – a recipe for domestic violence

3.1 Destitution puts women at grave risk of domestic violence.  Women left with no money or resources are prey to every predatory, violent, exploitative man who takes advantage of the fact that she is desperate and has no routes to escape. This includes violent and abusive husbands, boyfriends and partners. For the government to deliberately make women destitute is to encourage and promote this abuse.

3.2 Destitution was first deliberately deployed against women seeking asylum (and with other immigration applications) whose legal cases had failed and been closed.   Many have already suffered domestic violence before coming to the UK. Our own and other research has found that over 70% of asylum-seeking women have fled rape in their country of origin. With the introduction of Section 55 (of the Nationality, Immigration and Asylum Act 2002) asylum-seekers who did not make a claim immediately on arrival in the UK were denied any support. Literally hundreds of women came to the door of the women’s centre where we are based. Some were sleeping in parks, in hospital A&E units, on night buses.

3.3 The deliberate policy of destitution against asylum-seekers and other immigrants has since been rolled out against many other women, making them also more vulnerable to domestic violence. For example, benefit sanctions and the delays in paying Universal Credit, have left many women with absolutely no income, or living below the poverty line, sometimes for months on end.  The Joseph Rowntree Foundation’s 2018 report found 1.5 million people destitute in the UK.

3.4 Destitution among women is particularly hidden, as they are less likely to be “street homeless” because of the fear of violence. In one study, 35% of destitute homeless women asylum seekers in the UK reported being raped.[2]  Instead women tend to rely on family, friends, acquaintances and strangers for a roof over their head and the basic necessities. This makes them vulnerable to sexual and domestic violence. For example, one woman in our network described fighting off attempted rape by the husband of the woman she was staying with.  She couldn’t risk telling his wife for fear she would end up in an even more dangerous situation on the street.  Nor could she tell the authorities, for fear she would be detained and removed because she had no immigration status. Another mother who was given shelter in exchange for childcare and housework became homeless when her son was physically attacked by the male head of the household.

3.5 Even when women win their legal cases, some are denied access to public funds and remain victims of or become vulnerable to domestic violence.

3.6 A government that makes women and girls deliberately destitute cannot claim to be taking action to protect women from domestic violence.

3.7 Action points:

• Ending destitution is essential in tackling domestic violence. No-one should be left without the means to survive, least of all some of the most vulnerable women in the community – many of whom are already victims of domestic violence.
• End the No Recourse to Public Funds policy.
• The government should provide women who had fled from domestic violence to the UK with resources and protection in order to meet its Istanbul Convention obligations towards victims “irrespective of immigration status”.

4. The hostile environment for victims of domestic violence in immigration and asylum procedures

4.1 Women are made destitute when their immigration applications are turned down, but in our experience cases fail unjustly because women do not get the legal and other help they need.  The hostile environment is deeply embedded in how asylum and immigration cases are considered.

4.2 To our knowledge no investigation or account has been taken of the impact on women’s vulnerability to domestic violence by how the Home Office treats asylum and immigration cases. A callous, hostile and frequently unjust system results in women being unable to report domestic violence and rape, and uses their difficulties in speaking about these horrific experiences to disbelieve them when they do. WAR’s Refuge from Rape and Destitution Campaign is highlighting how the Home Office and judges routinely flout case law and their own guidelines on how women should be treated, so that no consideration is given to the traumatic impact of rape and domestic violence.

4.3 Policies are being employed that deliberately disrupt women’s ability to pursue their legal cases: the Chapter 60 policy which sets a three month “window” within which women get no further notice of removal; certification which denies the right to an in country appeal, including by holding women at fault for not reporting rape and domestic violence earlier; fast-track decisions by the enforcement team charged with meeting targets for removals rather than a fair and thorough consideration of the evidence presented. The legal aid cuts compound the injustice, leaving many victims going to appeal hearings unrepresented or in the hands of inept or even corrupt private lawyers.

4.4 Action points:

• Restore the right to legal aid for all asylum and immigration cases
• End the “deport now appeal later” procedures so all appeals can be heard in the UK.
• Withdraw the Chapter 60 “windows” policy and allow people time to access lawyers and the courts to challenge removals/deportation.
• All Home Office and Tribunal hearings must adhere to their guidance about the treatment of vulnerable victims.
• The government must recognise that severe and prolonged domestic violence is torture and that under the Convention Against Torture victims are entitled to resources and support to recover in the UK even if this took place in another country.
• The UK should ratify and implement the Istanbul Convention to help protect vulnerable immigrant women in the UK, who otherwise have little protection and may be deported if they try to report violent men.

5. Improving the police & CPS response, and victims’ experience of the justice system

•  We do not call for any more powers to the police, as they are not using them accountably but are instead abusing them to intimidate and even arrest the women reporting violence.
• The police and CPS do not implement the existing laws against domestic violence. They must be made to do so or be sacked.

5.3 The police can’t be relied on to investigate domestic violence, including domestic rape and even murder.  Nothing in your paper seriously addresses the current problems in how existing domestic violence laws are applied and the appallingly low conviction rate of 6.5% (Women’s Aid website 2014).  Two women are still being killed every week – often after many calls to the police and police inaction.  Yet no officer has ever been prosecuted or properly held to account for the bias or negligence that resulted in such deaths.  Even when the police were found guilty of failing in their duty of care to victims, we are not aware that the officers responsible were demoted, sacked or prosecuted.  If any have been, we would like to know.

5.4 The police already have laws and resources at their disposal if they choose to use them to protect women from rape and domestic violence.  They often choose not to.  In relation to rape – they seem to make up their own version of the law.  The Met was sued successfully this year for refusing to investigate serial rapist John Warboys –upheld by the Supreme Court despite a £1m legal appeal by the Met and government support.

5.5 When will they be held similarly accountable for refusing to investigate DV?

5.6 We know from extensive experience over four decades that in response to reports of domestic violence, the police and CPS do not always record them properly; in many cases they don’t gather, don’t test, or lose forensic and witness evidence; and they do not charge appropriately.

5.7 They put pressure on women to retract, and in some cases investigate the woman for committing some kind of crime, including accusing her of lying.  This has been evidenced by whistleblower PC James Patrick and other officers to the Public Administration Select Committee in November 2013, who testified that many women are bullied by police into retracting their allegations of rape.

5.8 Also, the 2014 HMIC report ‘A Matter of Fact’ said: “We are seriously concerned about the picture that is emerging – one of weak or absent management or supervision of crime recording and serious sexual offences not being recorded (14 rapes).  Some offenders have been issued with out of court disposals where their offending history could not justify it.  In some cases they should have been prosecuted.”  [HMIC REPORT]  Little has changed according to more recent reports.

5.9 The issue of rape as a serious and common form of DV, and the additional disbelief/suspicion that comes from many professionals/officials rarely receives official acknowledgement.  Every woman who ‘cries rape’ is suspected of lying, particularly if they have ever suffered violence before.  Yet it is well known that DV is a recurrent crime and that most victims suffer many attacks before they report.

5.10 The police also need to stop investigating rape and domestic violence separately when they are committed by the same perpetrator.  Rape is part of the definition of domestic violence; when they are investigated together more evidence will become available to build a case, get the CPS to charge appropriately, and more violent perpetrators can be convicted.

5.11 The CPS legal guidance on domestic violence says:

“Where a summary only offence has been committed, such as common assault, any charge(s) or information must be laid within 6 months of the date of the alleged incident.  This time limit may prevent some previous cases being joined with those involving later complainants.  However, the earlier victim(s)/complainant(s) may still be able to support the more recent case through the use of bad character evidence.”  https://www.cps.gov.uk/legal-guidance/domestic-abuse-guidelines-prosecutors

5.12 This time limit of six months is a major problem in many cases and in practice results in many cases being dropped as out of time or the number of charges heavily reduced.  In court the woman victims find the history of domestic violence has been reduced to a single incident, and isolated from the pattern of other violence and threats to kill – such a representation is much less serious and convincing and less likely to result in the conviction and sentencing the crimes deserve.  Domestic violence incidents such as common assault, threats to kill, or threats to harm the children, should not be prosecuted as a summary only offence.

5.13 We strongly disagree with the government’s proposed new statutory definition of domestic violence which would make the law gender-neutral.  The current definition does not exclude men and boys.  But the proposed definition would take out gender completely thus hiding that the overwhelming majority of DV victims are women.  We have found that removing gender from violence which is very gendered further reduces women’s power to get protection and justice.  Men who are violent and controlling feel ‘entitled’ to exercise power over women and are adept at portraying themselves as ‘victims’ when they don’t get their way.  A gender neutral definition would play into their hands and should not be introduced.

5.14 We have seen many cases where men call the police on their victim in order to discredit her and cast doubt on what she has to say; tragically they are often successful.  Institutional sexism within the police and the criminal justice system as a whole results in women being disbelieved more than men, and facing harsher treatment.

5.15 Research by Prof Marianne Hester in 2009 ‘Who Does What to Whom?’ found that women are disproportionally arrested for DV compared to men.  Women are 3 times more likely to be arrested for DV – they are arrested every 3 incidents out of 10, whereas men are arrested every 1 incident out of 10.

5.16 More women victims of DV will be arrested and even charged if their violent partner can use this new definition as leverage to deflect blame away from themselves.  This already happens and will happen even more often.  More disbelief and prosecutions of women will follow, deterring even more women from reporting and seeking justice.

5.17 There is no better encouragement to women to engage with the criminal justice system than to improve the conviction rate and to robustly enforce the restrictions of movement on their attacker.

5.18 The victim should not be forced to prosecute or testify.  She is in the best position to judge whether a prosecution of her attacker will protect or endanger her, or her children.

5.19 Women must be given the power, protection, resources and support to follow through with a prosecution, rather than take it out of their hands and prosecute their attacker behind their back and without their consent.  It is punitive and heavy handed to prosecute a perpetrator of DV without giving his victim any police protection, and without changing the economic and other conditions in which she has been living so her and her children’s survival and safety are assured.

5.20 There are too many cases where women’s sexual history is still allowed in court.  Evidence found sexual history to have been used in a quarter to a third of rape trials (Vera Baird: Seeing is Believing: The Northumbria Court Observers Panel. Report on 30 rape trials 2015-16., and Application of Section 41 Youth Justice and Criminal Evidence Act 1999: A Survey of Independent Sexual Violence Advisers (ISVAs), by Lime Culture 2017.)

5.21 We are glad to see that Vera Baird and Harriet Harman are finally pressing for what we demanded during the formulation of the Youth Justice and Criminal Evidence Bill in 1999, where we made it clear that evidence of sexual history with men other than the defendant should be excluded from trials.  Worryingly, Vera Baird’s evidence of breaching the current restrictions on evidence was totally dismissed by the Attorney General recently.

Contact: Black Women’s Rape Action Project bwrap@rapeaction.net
Women Against Rape war@womenagainstrape.net
T: 020 7482 2496

[1] Women’s Budget Group

[2] Underground Lives, PAFRAS Report March 2009