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Transparency, domestic abuse and more

A week in family law

Last week I mentioned here the first forced marriage prosecution in this country. It didn’t take long to wait for the second. A couple from Leeds have been convicted of attempting to force their daughter into marriage, after tricking her into travelling to Bangladesh in order to marry her cousin. In the summer of 2016 they told their children that they were travelling to Bangladesh for a holiday to visit relatives. Once they arrived in a remote village, the daughter was informed about the marriage. When she refused, her parents took her phone away and threatened her with violence if she did not comply. Thankfully, the British High Commission in Bangladesh, the Forced Marriage Unit, and Bangladeshi police were made aware of the situation, and worked together to rescue the daughter and bring her safely back to the UK. Again, hopefully, this case will send out a clear message to any potential perpetrators of this awful crime.

Cafcass Cymru, the Children and Family Court Advisory and Support Service in Wales, has published a review of research and case law on the subject of parental alienation. The review found that the evidence base for parental alienation was very limited, because of a lack of “robust empirical studies”. This was partly because the term itself is contested, with no clear definition, and partly because the research literature is dominated by a small number of authors who tend to hold polarised views. The review ends with a list of ‘key implications for practice’, including that: “Good practice in intractable contact disputes needs to include clear processes to investigate and analyse reasons where a child is him or herself refusing or resisting contact” and that: “Research literature and judicial guidance is clear that early identification of the issues is important in preventing positions becoming entrenched.” Hopefully, the review will be of assistance to courts in both Wales and England dealing with the issue of parental alienation.

Sir James Munby, the President of the Family Division, has refused to allow a mother to publish details of a case which took place in 2002, concerning arrangements for her daughter. In the case G (A Child: transparency in the family courts), the judge, Mr Justice Singer, had made a catalogue of “extremely unpleasant findings”, and ordered that the daughter should reside with her father, with the mother only having very limited indirect contact with her. The mother applied for permission to pass on a wide range of information relating to the case to her children and the media, so that she could tell her side of the story and take her case to the ‘court of public opinion’. However, the President refused permission, saying (amongst other things) that it was for the father, not the mother, to tell the daughter about what had happened. However, he did allow the daughter’s older half-brother to have copies of Singer J’s original judgment, plus certain experts’ reports and witness statements, subject to the proviso that the half-brother should not disclose the documents to anyone, except his legal advisers, without the permission of the court. An important judgment on the issue of transparency in the family courts.

Still on the subject of transparency, it has been announced that Court of Appeal cases will be live-streamed on YouTube from October. This means that appeals in important cases such as the recent Alfie Evans case could be watched by audiences around the world. The Master of the Rolls Sir Terence Etherton said: “It’s revolutionary. I am so excited about it because I think it’s exactly what we’re trying to do here . . . we all believe in open justice and the effect of transparency to enable the public to have confidence in what we’re doing.” It is, indeed, an exciting development, although one must remember that some family cases will not be suitable to broadcast, for example due to the need to keep the identity of any children private.

And finally, alleged victims of domestic violence continue to be cross-examined by their alleged abusers in family courts, more than a year after the Government promised to stop such ordeals, according to a study by Women’s Aid and Queen Mary University of London. Almost a quarter of survivors (24%) surveyed said they had been cross-examined by their abusive ex-partner. Further, three in five (61%) said there was no special protection, such as separate waiting rooms, different entry/exit times, screens or video links, despite the domestic abuse allegations. Survivors also reported that they were repeatedly not believed, were blamed for experiencing abuse and seen as unstable by judges, barristers and Cafcass officers. Almost half of survivors (48%) reported that there was no fact-finding into the allegations of domestic abuse in their case, while one survivor reported that her abusive ex-partner was able to cross-examine her about her sexual history during child contact proceedings. These are very worrying allegations – let us hope at least that the Government finally gets around to dealing with the cross-examination issue, as soon as possible.

Have a good weekend.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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