• April 19, 2024
 Family Court reporting: how effective and accurate is it?  

Family Court reporting: how effective and accurate is it?  

By Alex Verdan KC, barrister at 4PB and Sacha Lee, associate at Dawson Cornwell

The 2023 social landscape is a very different one to that of 2015, 2010 and 2000. I grew up during an era of exponential technological expansion. When I was a toddler, if you were very lucky, you might own a first-generation PlayStation, to be shared with your siblings. Now, children who have not yet learned to tie their own shoelaces are more adept at using iPhones than I will ever be.

My socialisation as a child was based on friendships formed by face-to-face interactions. In 2024, children can meet and socialise with (literally) any other child in the world, through TikTok, Minecraft, Roblox and more.

As a society, our virtual connectivity and the wealth of information we can access is at an unprecedented level. The upsides of this are tangible. Children learn to articulate consent and maintain their chosen boundaries. Teenagers and young adults articulately campaign for social change. Women reject outdated sexist models. Others feel that they finally have the confidence to leave an unhappy partnership or marriage, no longer tolerating behaviours which history has long taught them to accept.

Through this dramatic expansion of our connected worlds and the content we consume, we articulate ourselves, our emotions and experiences with increasing precision. Concepts such as attending therapy have been normalised through the TV shows we stream as we scroll through social media on our phones, the therapy podcasts we listen to and the TikToks we watch which show acted scenarios for ‘partner red flags’ or ‘POV: therapy appointment’.

As a result, words like ‘gaslighting’, ‘narcissist’ and ‘abusive’ have entered our mainstream day-to-day vocabulary. Indeed, ‘gaslighting’ was Merriam-Webster’s word of the year in 2022 as lookups for the word on merriam-webster.com increased 1,740% in 2022. We are more clued up than ever on how to spot potentially and actual abusive behaviours than ever before and have new and expanded vocabulary to express how we feel.

There is an obvious cautionary tale here. It is an unmistakable progression to gain greater and more articulate understanding of our world, shed light on conditions previously under-researched and challenge stereotypes. However, where the pace of social development has increased so rapidly, we have a collective responsibility for engaging in calm debate and critical discussion about the words we now use every day.

There are inherent risks with self-diagnosing oneself or others from the media. Although it is true in some cases (and those should not be glossed over), not every headache is a brain tumour, not every argument is abusive and not every person who is unpleasant or selfish has narcissistic personality disorder. Greater understanding of what the terms mean, whether and how their context has changed, is key to avoiding confusion, mislabeling and ensuring that those for whom the terms apply do not fall between the cracks. What may be true for some, will not be true for all. Seeking genuine, tailored to you, professional and expert advice is vital.

How does this feed into family law?

As a children lawyer at Dawson Cornwell, my practice encompasses the whole spectrum of legal cases pertaining to children matters, including the most serious of allegations. Our changing social fabric has had two major (and connected) impacts in my work.

The first is that it has been an increasing feature in my work over the past four and a bit years for a parent to make allegations of abuse against the other parent (increasingly of coercive and controlling behaviour, which is a form of domestic abuse that has had recent publicity in the news and developments in legislation and judicial coverage) and for parents to accuse each other of ‘parental alienation’.

The second impact is that my clients regularly refer to the wealth of media available: social media, books, articles and news outlets, as their sources for identifying, articulating and sharing their experiences of these concepts.

Indeed, two BBC news articles published recently discuss these very topics, entitled ‘Children forced into contact with fathers accused of abuse’ and ‘‘We kidnapped our kids from abusive dads and fled the UK’.

The titles of the above two articles are uncharacteristically emotive for the BBC. They would be enough to frighten any member of the general public and especially those who might be considering issuing proceedings in the family court, understandably so. However, it is here that I again urge that a step back is taken.

From a legal perspective, in brief, in cases where domestic abuse is alleged, Practice Direction 12J in the Family Procedure Rules 2010 sets out the careful approach that the family courts must take. Case law, such as K v K [2022] EWCA Civ 468, Re H-N [2021] EWCA Civ 448 and F v M [2021] EWFC 4 to name just a few also provide essential guidance.

In respect of ‘parental alienation’, this was initially defined in Re S (parental alienation: cult) [2020] EWCA Civ 568, [2020] Fam Law 861, at paragraph 8, as: ‘When a child’s resistance/hostility towards one parent is not justified and is the result of psychological manipulation by the other parent. To that may be added that the manipulation of the child by the other parent need not be malicious or even deliberate.  It is the process that matters, not the motive.’ This is an adoption of the CAFCASS definition (CAFCASS are the Children and Family Court Advisory and Support Service set up to promote the welfare of children and families involved in the family court).

Peter Jackson LJ goes on at paragraph 11 to say: ‘Cases at the upper end of the spectrum of alienation place exceptional demands on the court.  It will recognise that the more distant the relationship with the unfavoured parent becomes, the more limited its powers become.  It must take a medium to long term view and not accord excessive weight to short-term problems: Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 per Sir Thomas Bingham MR at 129.  It must, in short, take action when and where it can do so to the child’s advantage.’

Alienating behaviours perpetrated by one or both parents are a very serious matter, as, if found to be true or if maliciously alleged, can cause irreparable emotional harm to the child at the centre of the proceedings. Given its significance, it is not a term that should be thrown around lightly.

The recent case of Re C (‘Parental alienation’: Instruction of Expert) [2023] EWHC 345 (Fam) contains essential guidance by the President of the Family Division of the High Court, Sir Andrew McFarlane. It was reiterated that ‘parental alienation’ is not a ‘diagnosable syndrome’. It is about whether (as a question of fact as determined by the court) there are ‘alienating behaviours’ and ‘the impact that that behaviour may have had on the relationship of a child with either or both of his parents.

The family court can be somewhat of a blunt instrument at times and the ever-increasing backlog of cases in the system causes delay which is inimical to child welfare. It is no secret either that the family court system is underfunded. However, at its core, its approach to domestic abuse and child welfare is (perhaps surprisingly to non-lawyers) nuanced and forward thinking.

This is a reflection on the thousands of cases it sees every year. Indeed, during January to March 2023, there were 13,221 private law cases started in the family court. Every case is unique and hinges on subtly different points. This is what makes family law such a challenging and human area of law. The legislation for children law is more limited compared to other areas of law, meaning that practitioners and judges are reliant on case law and updating judicial guidance to shape approaches to cases.

However, this only goes part of the way. Each case we are faced with has its own highly individual dynamics which practitioners and judges must be very sensitive to. The court’s paramount consideration in any application in respect of the upbringing of a child is the child’s welfare. This is enshrined within section 1(1) of the Children Act 1989. Family court judges have a wide-ranging discretion in respect of how they apply the law in order to ensure that the eventual outcomes they order (if agreement is not reached between the parties before then) are holistic and specifically tailored.

The fear-mongering language used in recent national news reporting is a concerning trend. It is an incitement to and indictment of family law litigation in the same breath. It fails to take into account the very complex factors in play, including those that I have set out above in very brief detail, in cases where there are serious allegations.

The (no doubt unintended) consequence of news outlets, including the BBC, reporting in the above terms is that it does not assist those in society who require the services of the (overstretched and underfunded) family courts the most. These include children and adolescents in the care system, victims of serious domestic abuse, adoption applications and wrongful removals of children to our jurisdiction.

Law is a famously difficult profession for aspiring lawyers to enter into. It requires years of training and securing a training contract to be a solicitor (or a pupillage for barristers) is notoriously competitive. During training and in practice afterwards, the learning curve remains steep. Faced with this complexity, there should be no expectation that the non-legally trained general public are familiar with the difficult concepts practitioners and the court deal with on a daily basis. With that in mind, the UK public deserve to read news focusing on legal issues that is informative, well-researched, balanced, accurate and accessible.

The two news articles by the BBC recently do not do this. In the article entitled Children forced into contact with fathers accused of abuse’, notwithstanding the frightening title which suggests that this is very commonplace, the opening lines of the article refer to ‘dozens of children’. This is an extremely small proportion of the overall cases in the family court (if it were 24 children out of the 13,221 private law cases in the first quarter of 2023, this would be 0.2%, if it were 50 children, it would be 0.4%).

If children are being forced to spend time with parents who are abusive, contrary to their best interests, then no matter whether it is one child or thousands, this is a very serious issue which deserves detailed, thorough and accurate reporting to shed light and hold the legal system to account and effect change.

However, this article does not investigate this issue thoroughly or carefully. As a result, it has the effect of fear-mongering because it conflates very complex issues together without proper detail, analysis or explanation. This causes misunderstanding. It is also an injustice to the families whom the articles discuss, who deserve proper reporting of their stories and experiences.

In the opening lines, the article states that this is about ‘fathers accused of abuse’. There is a difference between being accused of abuse and proven abuse (through either previous criminal convictions or by the family court making findings of fact on the balance of probabilities). The court must weigh up the importance of a child building and maintaining a positive relationship with both of their parents with potential risks to that child and if/how any potential or actual risks in the case could be managed.

In cases pertaining to children, allegations of domestic abuse are very serious, as are allegations of alienating behaviours. What is also very serious and sadly can be a feature of some cases are false allegations of domestic abuse or alienating behaviours made by a parent in the hope that it will boost their case. The court has a duty to understand and unpick situations very carefully, in order to make a determination about what is in the best interests of the child. If this is not being done, then these stories deserve highly detailed, evidence based and careful reporting so that the issue can be addressed as it should.

The stories in this BBC article are extremely wide ranging, conflating different issues and there is a lack of detailed and nuanced reporting. For example, in Grace’s story, it appears that the court ordered a transfer of residence for the child from Grace’s primary care to the father, who had a previous conviction for sexual abuse against another child. The family court does not order the transfer of residence of a child from one parent’s primary care to the other lightly. It happens very rarely because of the serious emotional impact it can have on the child. A transfer of residence to a father with a previous conviction of this nature means that the facts of this case are highly unusual. There would have been a detailed judgment in this case setting out the court’s rationale for this decision and why it was deemed necessary. Without this and detailed analysis of the same, the reporting of this case lacks crucial information.

Furthermore, highly complex cases of this nature hinge even more closely on details. Without them it is impossible to unpick the trajectory that led to a devastating conclusion for this mother, what and at what time things went wrong, what the court’s handling of this case was, whether there was involvement from other services such as Children’s Social Services or the police, whether the judgment was appealed or not etc.

In Sheila’s case, there is omission of all of the key details which may give an indication of why the court gave the warnings it did and what the court process in her case was (for example was there a Fact-Finding Hearing in respect of her allegations against the father?). As for Grace’s story, this omission leads to a significant lack of clarity about exactly what went on in these cases.

Sarah’s story is different altogether, touching on a different issue about delays in family court proceedings and the devastating impact this can have. Under the medical emergencies section, it refers to a case where the children had been removed from the mother’s care (again, removal of children from a parent’s care is not something that is undertaken lightly) and a further case where a mother died of a treatable illness which the article suggests was caused by her experience of her medical records being discussed in the family court.

These stories pertain to very different issues which deserve proper and thorough analysis in their own right. In the same way that my brief summary of the law in question does not explain all of children law, a few lines in a short article cannot possibly encompass the experience of the parents and child in each case or the court’s rationale for each decision made. This is especially so where these particular cases have ended so tragically.

These are issues that pervade the other BBC news article ‘‘We kidnapped our kids from abusive dads and fled the UK’. In a few lines, it states that the police were called out to reports of stalking and abuse, that one police report graded Rose as being at risk of further harm, that Rose’s partner was never convicted, that there was a transfer of residence order for Rose’s child and that she then abducted her child to the Turkish Republic of Northern Cyprus (TRNC). In Susan’s case, it states that there were 120 court appearances. This is extraordinarily unusual. The majority of cases (if they are in court at all) require 3-5 hearings, if they are fully contested to the conclusion of a final hearing.

This raises many questions which the article does not address. Who called the police? Were the partners ever spoken to by police and formally investigated? If not, why not? Were they charged? If not, why not? How did the court handle the proceedings? Was there a detailed welfare report prepared in respect of the child? Were Children’s Social Services involved? If so, what were their investigations and recommendations? Why was a transfer of residence ordered? What was the court’s detailed rationale for it? Was there a sufficiently detailed rationale? Why was there a risk that the child would be taken into care? What is the impact on the child of now being effectively imprisoned in the TRNC?

Given that my view (mid-twenties, female and solicitor) is but one angle, I wanted to speak to someone with a different background to me in the legal profession on this crucial issue. I sought the opinion of my colleague, barrister Alex Verdan KC, former Head of Chambers at 4PB, with over 36 years of children law experience (including the most complex and serious cases). He has also spent over 15 years sitting as a Deputy High Court Judge. He made the following comments:

The increase in media attention that the family courts are receiving is not surprising. At the end of January 2023, a Transparency Reporting Pilot was launched in the family courts of Leeds, Cardiff and Carlisle, allowing accredited journalists and legal bloggers greater access to family court cases. The Pilot came about as a result of the President of the Family Division’s Transparency Review in October 2021, whose aim was achieving better and more purposeful transparency in the family justice system. We are now approaching the end of the first year of the Pilot scheme and as a result, are seeing an increase in the number of headlines in the mainstream media dealing with family proceedings.

As of 29 January 2024, the Pilot will be extended to a further 16 family courts across the country and no doubt will go nationwide in the foreseeable future. Greater media coverage of the work done by the family courts is expected to follow.

Family practitioners have welcomed the Transparency Reporting Pilot as an opportunity for the public to gain greater accurate insight into the workings of the family courts. However, the media coverage that has followed has often been sensationalist and critical in nature, as perhaps best exemplified by the media’s treatment of alienating behaviours and domestic abuse cases which contrasts with the careful, nuanced, and balanced approach adopted by the vast majority of family courts in such cases. A simple presentation of these cases e.g. ‘mother who suffers domestic abuse by father loses care of the children because judge found she alienated them from him’ does little to improve the public’s knowledge of such complex cases. It is hoped that with the extension of the Pilot to a greater number of family courts later this month, the focus will turn to more accurate and informative pieces and that public confidence in the family justice system will improve as a result of a greater number of family courts opening their doors to journalists and legal bloggers.

The decision of Mrs Justice Lieven in the High Court in October 2023 in Tickle v Father and Others [2023] EWHC 2446 (Fam), (an appeal against a case management decision adjourning Ms Tickle’s application for permission to report on family proceedings) serves as a reminder of the important place that family court reporting has in society, in achieving open justice and greater public understanding of the work done by the family courts. However, those aims simply cannot be achieved without accurate and detailed reporting.

It is crucial that the members of the press attending family court hearings are alive to the need for sensitivity, nuance and accuracy in the stories they publish which inevitably will require them to understand properly the cases, the arguments and the judgments. So far, in the main, we have seen newsworthy ‘clickable’ headlines taking precedence over pieces that accurately shed light on the procedures and safeguards adhered to in family proceedings. To achieve true transparency and public awareness going forward, commentators must pay attention to the details and nuance of each case, and adhere to anonymity rules, aimed at avoiding jigsaw identification of the children for whom these proceedings are so important, and not just a news story.

It is not only the television companies that risk publishing misleading information on the work of the family courts. A recent article by the Independent in December 2023 was titled ‘Thousands of children waiting nearly a year in ‘unacceptable’ custody courts backlog’. While this piece is rightly aimed at informing readers of the delays currently being faced by family court users, it is extraordinary that such a respected newspaper uses the ‘custody’, a legal concept which has not been used in the family courts for decades and is more properly reserved to criminal proceedings in England and Wales to refer to confinement or imprisonment. The term ‘custody’ has largely no place in the modern family law of this jurisdiction. Child arrangements orders pertaining with whom a child should live or spend time and when i.e. residence and contact, are instead the correct legal terminology that should be adopted in media publications to ensure accuracy and better understanding of family court processes for readers. Without this accuracy, it is hard to envisage the Transparency Reporting Pilot achieving its aim of improving public confidence and understanding of the family justice system.”

Where can we go from here?

Alex and I agree that without detailed, thoughtful and accurate analysis, these cases are left wide open for extrapolation of all sorts of conclusions which may not be true. If, as children lawyers, media reporting like this leaves us with more questions than answers, how can the UK public be expected to be properly informed about very complex and hotly debated legal topics, especially ones which have increasing exposure and court consideration such as domestic abuse and alienating behaviours? Furthermore, how can the family court be properly held to account if reporting of very complex issues is not properly undertaken?

When news outlets like the BBC report on eg: politics, expert political correspondents provide accessible guides to explain processes, there is extensive coverage given to political issues with debates covering all angles, backed by in-depth research, there might be supporting articles covering areas that have perhaps been neglected to ensure understanding of the headline topic and politicians are held to account regardless of their party. It is disappointing that the same level of care is not afforded to the other major pillar of our society: our legal system and we call for that as a matter of urgency.

We strongly believe that the public deserve to have faith in their legal system and understand how it works. A key factor in this is that they also deserve to have access to careful, nuanced, thorough, analytical and critical reporting in respect of the same.

Eve Tawfick, Editor

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