Authors: Sarah Learmonth, PhD researcher at LSE, in collaboration with Dr Susan Robson, Cris McCurley and Vivienne Hayes MBE, CEO Women’s Resource Centre.

This review was requested by the Women’s Resource Centre (WRC) as a contribution to the struggle to make family courts accountable to both the public and professionals (McFarlane, 2021: 6). The focus of this report is the pathologisation of women survivors of male violence, particularly domestic violence, by the family court and their appointed professionals who contribute to the evidence used to remove their children.

Main Findings:

• Family court assessment of experts’ credentials and the content of their reports is inadequate at best, and dangerous at worst. A rare evaluation found content that was unethical, inappropriate, out of scope, and/or unreliable and experts appointed without the necessary competence, currency, or expertise.
• Practice Direct 12J is either not understood or misinterpreted by family court practitioners, facilitating predominantly male abusers with a legal avenue to persist in post-separation abuse.
• Sexist and misogynistic attitudes and behaviours of family court practitioners and judiciary create a hostile, demeaning environment that is as inhumane as it is dangerous for women and children surviving male violence.
• Allegations of abuse are routinely rejected by the family court as incredible on the basis of the unproven theory of Parental Alienation Syndrome with two-thirds of women advocating for their children’s safety pathologised and their motivations viewed as malicious.
• Civil protection orders can be and are vacated by family court judges in favour of the ‘pro-contact’ mantra which also influences some family law solicitors to advise women to breach bail conditions put in for their safety to avoid accusations of being hostile to contact.
• Data is not collated or collected by the family court to review good or poor practice or outcomes for women and their children. Secrecy and silencing with regard to court processes and decisions hamper monitoring and improvement.
• False abuse allegations are rare with no evidence that it is higher in care proceedings. In contrast violence against women and children is more prevalent in contested childcare cases than in the general population of divorcing couples.
• Family court decisions can fail to act in a manner that is compatible with the human rights of victims, mothers in particular.
• Once pathologised and labelled an unfit parent, some mothers never regain custody of their children in spite of their allegations of abuse (the main ‘symptom’ of their ‘pathology’) being validated.

Recommendations

1. All evidence admitted in child arrangements and parenting adjudications should be subject to the relevant admissibility standards. Courts, but especially Family Courts, must reject pseudoscientific concepts that pathologise parents seeking to protect children such as Parental Alienation Syndrome and other simplistic theories of parental alienation that rely on invalidated constructs.
2. Child arrangement decisions follow the law; practice direction 12J and practice direction 3AA and only offer opinions for which there is an adequate evidential basis. Related to this, we urge professional bodies to enact more specific standards of practice.
3. Evidence from court-appointed professionals regarding abuse allegations in childcare cases should be admitted only when the professional possesses a current and documented expertise and competence in the relevant types of abuse, trauma, and the behaviours of both victims/survivors and perpetrators.
4. Family Courts must recognise the expertise held by the VAWG sector and appoint them in proceedings and evidence gathering.
5. Timely transparency of Family Court processes and decision making must be accompanied by appropriate and continuous monitoring and improvement. This should inform the accountability mechanism in Recommendation 8 below.
6. We welcome the MOJ’s endorsement of the recommendations of the Harm report of June 2021 dealing with all aspects of how family courts treat victims of abuse in private children cases. We recommend that both private and public cases are afforded similar treatment and call for the implementation of transparency of decision making in such cases and anonymously publishing of such Judgements, including the monitoring of all decisions made in such cases with written reasons being provided. We recommend that this process is expedited so that the voices of victims are not silenced.
7. Establish an independent accountability mechanism for the Family Courts to be developed in consultation with experts and survivors.

To read the full report, please visit here.