London's Victims' Commissioner on Family Court Reform

Since my appointment as London’s Victims’ Commissioner in 2017, I have seen improvements in the response to victims in the criminal justice system. Whilst Crown Court backlogs and limited resources are still negatively impacting on victims’ experience of the justice system, there has been increased collaboration and debate on the issues affecting victims of crime. This can be seen in the response to the Government’s National Rape Review, the work to transform the criminal justice response to rape via Operation Soteria and the Victims and Prisoners Bill which aims to strengthen victims’ rights, and which will receive royal ascent in the coming months.  

Despite campaigning and advocating for change to the family court response to victims since my appointment, I perceive the pace of change as far too slow, and certainly behind that of the criminal court. For example, the Youth Justice and Criminal Evidence Act 1999 prohibited the cross examination of sexual offence survivors by their alleged abuser and allowed victims of domestic and sexual abuse to use ‘special measures’ in criminal proceedings if the quality of their evidence was deemed to be impacted by their fear or distress. Yet it was not until the introduction of the Domestic Act 2021, and hard-fought campaigning from myself and others over 20 years later, that victims in family court could obtain the same special measures or be assured that their abuser would not directly cross-examine them.  

The Domestic Abuser Commissioner's report ‘Achieving Cultural Change’ and the Ministry of Justice Harm Panel Report 2020 all outline the major issues that victims face in private family law proceedings. These reports, alongside the correspondence into my office, demonstrate how some victims are being retraumatised and harmed by their treatment at the hands of our family justice system. This article will highlight some of my work on family justice reform and highlight areas such as child sexual abuse and privacy rights, which have been less widely debated or covered in previous reports and articles.  

The challenges facing victims of domestic abuse in family court were well documented by the Government’s Harm Panel Report 2020 and well debated through the passing of the Domestic Abuse Act 2021. There has been less public scrutiny of cases involving children who disclose sexual abuse perpetrated by a parent. 

The 2019 Crime Survey England and Wales found that 5.8% of women and 4.3% of men who had experienced sexual abuse before the age of 16 were abused by their father and 7.5% of women in the sample were abused by a step-father. 9% of child sexual abuse offences recorded by the police in 2022 were perpetrated by a parent. There is no data however, on the charge and conviction rates for parent to child sexual abuse. There is also no data on how frequently these cases are seen in private family law proceedings and the family courts findings in these cases.  

The absence of data on the outcomes of private law proceedings which involve all abuse allegations is problematic. This is why the Domestic Abuse Commissioner called for, and is now running, a pilot project called the Family Court Review and Reporting Mechanism to understand the scale of domestic abuse in family court proceedings and the court response. Unfortunately, this project will not include cases of child sexual abuse.  

A lack of data means we cannot be assured these cases are being dealt with effectively or understand how these cases are handled in private law proceedings. The child sexual abuse cases that have come to my office and to the support services and professionals I work with, are concerning. They involve children’s experiences of sexual abuse, and their wishes and feelings regarding parental contact, being dismissed, minimised and reframed by family court as the consequence of ‘parental alienation’. The Harm Panel Report highlighted the use of ‘alienation’ allegations and the President of the Family Division Sir Andrew MacFarlane recently said that there has been a “complete upsurge in the number of cases in which it is alleged”. Taken to its extreme, alienation allegations can lead to a transfer of residency to the accused parent against a child’s wishes and with no or limited contact with their safe and preferred parent.  

A recent article by Dr Elizabeth Dalgarno, a Lecturer in Healthcare Sciences and Director and Founder of SHERA Research Group, looked at 45 private law proceedings cases involving domestic abuse. It found that in the 9 cases that involved alleged child sexual abuse, all 9 resulted in some contact with the perpetrator father with four of these cases resulting in the child being transferred to the father’s residency. An upcoming article will provide further insight into these cases. The ‘parental alienation’ response to child sexual abuse is so pervasive that We Stand, an organisation that support the safe carers of children who have experienced sexual abuse, now see parental alienation allegations in 100% of the family law cases in their services.  

The family court response to child sexual abuse lags far behind the evolving understanding of how perpetrators operate and how victims respond.  Evidence finds that this form of abuse involves high levels of emotional manipulation and grooming, with perpetrators abusing their position as a primary attachment figure to silence and confuse the child. A complex web of disclosures may emerge over time and be made in a variety of ways but these disclosures are least likely to be made to social workers and police. A lack of understanding on behalf of family court professionals means these common features of abuse cases are misinterpreted as evidence that the supportive parent has coached the child as part of a high-conflict separation. 

It is not unusual for child sexual abuse to co-exist with other forms of abuse against the child and/or domestic abuse against others in the household, creating an ‘abusive household gender regime’. An allegation of parental alienation makes it impossible for the supportive parent to raise their own experiences of abuse or raise additional disclosures made by the child without entrenching professionals view of them as an ‘alienator’ and jeopardising contact. Victim parents are also caught between the ‘three planets’ of social care, police and family court all with their own evidential thresholds and expectations of how victims should respond to safeguard their children. Social care demand victims separate from domestic abusers due to the risks they pose but can push for contact with fathers where child sexual abuse has been alleged. The police require victims to report and evidence their abuse, however family courts expect victims of domestic and sexual abuse to facilitate contact and can look negatively upon safe carers who continue to report disclosures. This lack of join up makes it impossible for domestic abuse victims, and parents of child sexual abuse victims, to prove to the authorities that they are working in the best interest of their children.    

A culture of disbelief in response to child sexual abuse is not new. The Independent Inquiry into Childhood Sexual Abuse (IICSA) heard from nearly 6000 victims and survivors. The reports from the inquiry highlight how child sexual abuse has been minimised or even condoned over decades. 47 percent of survivors who participated in the Truth project said that no action was taken following their disclosures and only 5 percent of those who disclosed to an institution at the time of the abuse were believed. Some of the research included analysis of statutory serious case reviews where a child has been seriously harmed and had previously disclosed sexual abuse. They found that commonly these disclosures were assumed to have been fabricated by the child. They conclude that the dominant social and political discourses around child sexual abuse have been of deflection, denial, and disbelief, sometimes using ‘mother-blaming’ narrative such as allegations of “alienation”. Unfortunately, without reform, the family justice system will continue the historical trend of failing to listen to and protect child sexual victims, a trend that IICSA was intended to interrupt and transform. 

The data and research on the criminal and family justice response to parent-child sexual abuse disclosures is limited but anecdotal evidence from survivors indicates that criminal proceedings are negatively impacted by family proceedings. Family court cases must move quickly to safeguard children but criminal justice investigations, particularly for the most serious sexual offences, move slowly. In 2022/23 the average length of time for all rape investigations (adult and child) from report to charge was 421 days. The backlogs in Crown Court are likely to mean it would take at least another year from the point of charge for a trial to take place, meaning children may well be waiting for over two years for a case to conclude.   

If criminal justice proceedings are pending and family proceedings do not find for sexual abuse, or a counter-allegation of parental alienation is made against the mother, the criminal investigation is likely to cease as the criminal burden of proof is considered to have been impacted. A family court judge may even order a criminal investigation to come to a halt on the assumption that allegations are false. Furthermore, family court proceedings may issue orders for police records alongside third-party material such as counselling notes or social records, meaning an alleged abuser may have advanced insight into the details of an investigation before it is concluded. 

The case law which is quoted in family cases involving child sexual abuse also works against victims and their families when they disclose. This case law cautions the court to approach disclosures cautiously and consider disclosures carefully for misinterpretation or fabrication (Baroness Hale in Re B [2010] UKSC 12 at [29]). It also tells the court that children are ‘poor historians’ (Re K (Children) (2019) EWCA Civ 184) and that sexual abuse is defined by the intention of the abusive parent to feel sexual gratification (Re C [2022] EWFC 138), which is almost impossible to evidence.    

The general societal attitude towards child sexual abuse, a lack of understanding amongst professionals of how children disclose, the timing of proceedings, sharing of records and existing case law mean that victim-survivors face many barriers in being heard via family court proceedings and that this may also have a knock-on impact on criminal justice outcomes. Even when there are convictions, victims can face obstacles in obtaining the protections they need, which is why I sought legislative change via the Victims and Prisoners Bill and ‘Jade’s Law’. 

On the 3 October 2023, the Government amended the Victims and Prisoners Bill to include Clause 16, which would introduce what had been referred to as “Jade’s Law”. Jade Ward was murdered by her former partner in 2021 with her four children sleeping in another room. Her family campaigned to change the law after her murderer was able to continue to take part in decisions relating to the children and they were forced to confront him via family proceedings.   

The Government’s intention was to ensure that parents who kill a partner or ex-partner with whom they have children, will automatically have their parental responsibility suspended upon sentencing via a prohibited steps order. It means the burden is not on family members to apply to the family court to ask for the parental rights of a killer to be removed.  This was a change that I and other campaigners had been calling for since 2016 and I was pleased to see the Government had finally agreed to act. 

With this clause added to the Victims and Prisoners Bill, I saw the opportunity to address the issue which had been raised with me where those convicted of sexually abusing their own children retain their parental responsibility. This is the case even though at the point of sentencing these offenders are issued with a sexual harm prevention order to minimise the contact they can have with children in the public domain. I have encountered terrible cases where children and mothers are spending large amounts of time, energy and in some cases financial resource on trying to obtain the necessary protections from family court. You can see an example of a case below.  

I worked with Baroness Shami Chakrabarti to draft an amendment. The amendment incorporated these child victims into the Jade’s Law clause so that anyone who is convicted of sexually abusing a child in the family would be subject to a prohibited steps order at the point of sentencing, automatically suspending their parental responsibility. The amendment received good support in the Lords by the Liberal Democrats and Labour and was pushed to a vote but narrowly lost.

One of the reasons that the amendment failed is because at the same time as my campaign, the MP Harriet Harman was calling for parental responsibility to be removed from all those convicted of sexual offences against children, regardless of their relationship with the victim, via a different parliamentary Bill. Shortly before our amendment was to be debated, the Government made a concession to Harriet Harman’s amendment, committing to deliver an amendment via the Criminal Justice Bill which would see the parental responsibility of those convicted of raping a child under 13 (regardless of their relationship to the victim) automatically suspended.  

Whilst positive that the Government acknowledges and seeks to address this loophole, only 7% of recorded sexual abuse offences relate to rape of a child under 13. If enacted, this reform will see most convicted sex offenders who abuse their own children maintaining their parental responsibility and their victims and supportive family will still be forced to apply to family court for protection, sometimes at cost. Furthermore, with the current progress of the Bill, the remaining parliamentary timetable and upcoming general election, the Criminal Justice Bill may not receive royal ascent.  

This is why I will continue to call for strengthened safeguards for children who are sexually abused by a parent. 

After I raised the alarm over four years ago, the use of expert evidence in family court has been under scrutiny. Since then, I have continued to raise my concerns regarding these experts, especially “alienation” experts who are unregulated and unaccountable to the Health Care and Professionals Council (HCPC) and therefore unqualified to work in the NHS.  

In September 2023, I held a roundtable in parliament where child victims and mothers who had been forcibly separated because of alienation claims, spoke about the impact of these expert assessments and decisions. The President of the Family Division has confirmed that alienation “is certainly not a syndrome” and yet the roundtable heard how, upon the recommendation of such experts, domestic or sexual abuse victims were compelled to undergo obscure forms of therapy to ‘reunify’ them with the abusive parent. Sometimes the recommended therapy is via their own practice or other affiliated experts, creating a means to profit from their diagnosis of ‘alienation’. Mothers may seek out this therapy, even though they consider it unnecessary, in a desperate effort to resume or maintain contact with their children but find it impossible to access because professionals they approach do not agree with the diagnosis or consider the course of treatment unethical. In the United States this practice has be taken to an extreme with the use of ‘reunification camps’, a practice which has recently been outlawed in Arizona, Colorado, Utah, California and Tennessee.  

As part of the Victims and Prisoners Bill, Baroness Chakrabarti tabled an amendment which would have prohibited experts in family court from undertaking psychological assessments of victims unless they were registered with the Health Care and Professionals Council (HCPC). This is critical because the input of experts in family court can have significant ramifications for children’s lives but without regulation, there is no accountability mechanism.  

Although not accepted by the Government and not pushed to a vote, I was pleased to see that the Minister Lord Bellamy stated that “something needs to be done” and confirmed that the Government would be instructing the Family Procedure Rules Committee to implement changes. In the same week the President of the Family Division Andrew McFarlane provided evidence to the Commons Justice Committee and stated that “it should be the norm to instruct people who are registered”. He confirmed that the Family Procedure Rules Committee would take on the issue which should be concluded within 6 months. 

Another issue facing victims in family court is that of the protections afforded to children who were conceived because their mother was raped by their biological father.  

The Victims and Prisoners Bill for the first time identifies those children who were conceived because of rape as victims in their own right, meaning they are entitled to victim services. This was known informally as ‘Daisy’s Law’ following the dedicated campaign work of a survivor who called herself ‘Daisy’ who had been adopted after her mother was raped at the age of 13. Daisy suffered significant consequences because of this rape yet was not entitled to any form of support. The campaigner Sammy Woodhouse has also been instrumental in obtaining better protections for these children. Sammy became pregnant and had a child at 15 following sexual exploitation and abuse via a grooming gang in Rotherham and has spoken movingly about the impact on her son.  

In Sammy’s case, her abuser was joined to care proceedings after she went to the local authority for help with her son’s additional needs. This perpetrator, who was convicted for 35 years for multiple crimes against her, did not have parental responsibility. Nevertheless, the local authority argued that they were legally required to contact the rapist and notify him of proceedings involving the child. The perpetrator was then informed he could seek visits from his son via the family court and he was told he could be kept informed of all future proceedings.  

Sammy’s case is not unique. In the case of S (A CHILD) [2023] a man was joined to care proceedings, even though he had been charged with rape and sexual assault against the child’s mother who was his niece and minor at the time of the abuse. He had no parental responsibility and whilst the application was initially rejected by Judge Wright, the father was granted the right to appeal on the grounds the judge had failed to have proper regard to his Article 8 rights. The appeal court judges found that the onus was on the court to find a justifiable reason for the father not to be joined to proceedings rather than the onus being on the father to establish a justifiable reason to be joined.   

This test, established through case law, is further evidence of the ‘pro-contact’ culture that was identified by the Government’s Harm Panel Report. I urge the Government to address this unjustifiable prioritising of perpetrator rights over victims of rape and their victim children.  

The final issue I wish to highlight is the lack of safeguards for victims’ privacy rights in family court, especially in comparison to the criminal justice arena.  

As part of the London Rape Review 2019, I undertook interviews with victim-survivors of rape who had reported to the police in London. These interviews demonstrated that there were routine intrusions into victims’ privacy, from the use of mobile phone data and third-party material such as medical and counselling records. I concluded that these practices were negatively impacting on victim attrition, which was around 60% at the time. In my Rape Review recommendations, I called for more to be done to end the unnecessary and disproportionate intrusions into victims’ privacy and on the CPS to only request therapy notes to show the impact of the crime.  

Following these recommendations and dedicated campaigning from myself and others, the protections afforded to victims are now far stronger in the criminal justice process. The Policing, Crime and Sentencing Act 2022 brought in a code of practice on the extraction of information for police, which has helped to ensure that requests for victims’ mobile phones are reasonable and proportionate and that phones are returned to victims within 24 hours. The Victims and Prisoners Bill, which is likely to receive royal ascent in the coming months, has also clarified that police information requests from a third party about a victim of crime must only be made when reasonable and proportionate. Furthermore, in April 2024 an amendment by Baroness Bertin was accepted by the Government meaning that going forward police must now assume that counselling records are irrelevant to a case unless they are satisfied that these notes would add substantial value to the investigation.  

These are welcome developments, but they do not address the similar issues faced by victims in family court. Right to Equality have highlighted that there are victims of rape in private family law proceedings who have been ordered to disclose their medical records in full, including for access by the perpetrator. These are often ordered when a victim-survivor describes experiencing trauma following domestic and/or sexual abuse or following allegations made by the perpetrator that the victim-survivor is ‘mentally ill’. Those accused of abuse are rarely asked to share their personal information and so are free to use this request to further intimidate and harm their victims. I have heard of a victim-survivor whose counselling notes were requested and read out in court, meaning she immediately stopped attending counselling. I have heard of victims having to disclose their medical records since birth. Perhaps most concerningly, I am currently hearing of cases where the counselling records of children who have disclosed sexual abuse are being ordered for disclosure by the court, with little regard for their privacy rights or how this may impact on therapeutic interventions.  

The lack of transparency in family court means that we do not know how frequently these requests are made. This issue was briefly highlighted in the Harm Panel Report but it is now time for the Government to consider this more closely and ensure that victims have the same privacy protections in both jurisdictions. 

There are some positive developments in our family justice system’s response to domestic and sexual abuse, including the introduction and expansion of Pathfinder Courts, the Family Court Review and Reporting Mechanism being undertaken by the Domestic Abuse Commissioner and the expansion of the Transparency Implementation Group Reporting Pilot (TIG) to a further 16 courts. All these initiatives are to be welcomed as they will provide greater insight into the experience and response to victims in our family justice system.  

Despite this progress, the current response to victims that I see within our family justice system remains of significant concern and reform is well over-due. We need to expand the Review and Reporting Mechanism to include child sexual abuse allegations, review the way in which victims’ personal data and information is utilised in private family law proceedings, introduce legislative change to remove the parental responsibility of anyone convicted of sexually abusing their own children and address the cultural and legislation presumption of parental involvement at all costs. I will be calling on the Government, following a general election, to deliver a Family Justice Bill to address these issues in full.  

The findings of the Harm Panel Report in 2020 were stark and wide-reaching. They found that a pro-contact culture, limited resources, adversarial practices and siloed working was enabling the continued harm of victims via private family law proceedings. After the publication of this review the now Secretary of State for Justice Alex Chalk, speaking on behalf of the Government, said that the report should be “the springboard for the actions we will take to better protect and support children and domestic abuse victims throughout private family law proceedings”. Four years later, we still await the meaningful change that was promised, and victims and children are still suffering every day in our family courts in England and Wales.  

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Note:

This article was first drafted in May 2024, prior to the General Election. Since writing, the Victims and Prisoners Bill [now Victims and Prisoners Act] passed into law and incorporates the provisions known as 'Jade's Law'. Unfortunately, the proposed Criminal Justice Bill did not progress prior to the election and so changes to parental responsibility for those convicted of child sexual abuse offences has not changed. We continue to lobby for these crucial changes.

[A version of this article appeared in the napo Family Court Journal, Vol. 10 No. 1 Summer 2024 issue]