In this new article, published by NAPO (The Trade Union, Professional Association and campaigning organisation for Probation and Family Court staff), we discuss the BBC documentary 'Mums on the Run: Failed By The Family Court' and what needs to change in the Family Court. Information on FiLiA Hague Mothers can be found here.
Citation: Dalgarno, E., Hussein, R. and Dineen, R. (2023). Failed by the Family Court. NAPO Family Court Journal, 9 (2) pp.11-21. Available at: https://www.napo.org.uk/
Failed by the Family Court
Dr Elizabeth Dalgarno, Dr Rima Hussein, & Ruth Dineen
A recent BBC documentary by Ed Thomas –'Mums' on the run: failed by the Family Court' revealed the desperation of mothers who flee to Northern Cyprus in an attempt to safeguard themselves and their children. In doing so, they leave their family and friends, their homes and their jobs. Many end up in poverty, trapped in the country they have fled to. They are criminalised, labelled as abductors.
This article looks at what has gone so wrong in our courts that exile is seen as a solution. We consider both the court process and the wider context that impacts on mothers and undermines their safety and their access to justice. We then consider what a safe and just Family Court might look like, drawing on existing [but under-utilised] recommendations and guidance, on examples of good practice, and on the experiences of domestic abuse victims themselves.
Failed by the Family Court?
The BBC documentary 'Mums' on the run: Failed by the Family Court' has once again brought private law proceedings of the Family Courts in England & Wales into the spotlight. The documentary and subsequent news reports drew on the experiences of a number of mothers and children with commentary from the President of the Family Court Division and the Domestic Abuse Commissioner [DAC] alongside research at the University of Manchester led by one of the authors of this article in partnership with The Survivor Family Network and members of SHERA Research Group.
The experiences related by the mothers and children were stark. Their fear was palpable. For all of them, their attempts to navigate the Family Courts in England & Wales to escape from perpetrator fathers and safeguard themselves and their children became so traumatising that the only solution they saw as available was fleeing to Northern Cyprus in search of sanctuary.
Globally, mothers who attempt to escape abuse by taking their child or children across international borders without permission from the father will fall foul of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This international treaty ensures the swift return of the child to the country of habitual residence; a return that frequently results in custody being given to the perpetrator and in some cases, to the mother facing criminal charges. The Convention has been signed by over 100 countries. But Northern Cyprus, however, is not a signatory and as such, there is no international mechanism that enforces the child's return.
Exile is not an easy option. Mothers gave harrowing accounts of family separation and isolation, the loss of support networks, of living in poverty without access to UK bank accounts or work. They are often placed on an Interpol no-fly list, reduced to living as virtual prisoners in Northern Cyprus and in fear of their lives. And yet, mothers considered exile in Northern Cyprus as preferable to remaining in the UK.
The programme revealed very similar patterns in the mothers' experiences of the Family Courts. They reported some form of abuse enacted by the father; they felt disbelieved and unprotected by the Family Courts; they were then accused of so-called parental alienation [PA]or 'alienating behaviours' and found themselves positioned as the abusers rather than victims of the alleged perpetrator father. This accusation led to the threat of mother and child separation, a threat that is carried out with disturbing frequency.
The trauma caused by this sequence of events and, in particular, the mothers' realisation that the Family Courts will not protect their child from harm, cannot be overstated. Its impact is profound. Tragically, we heard of several mothers who had died by suicide after being accused of parental alienation, including one mother whose young child had been sent to live with the child's father, a convicted rapist. It is this combination of perpetrator abuse and court-sanctioned legal abuse that led these mothers to choose exile in Northern Cyprus. They saw it as the only way they could continue to protect their child and themselves.
It might be assumed that the BBC documentary and the anecdotal evidence offered by the mothers who took part is partial; that victims of domestic abuse are protected and children safeguarded by the Family Courts. Disturbingly, however, a growing number of research studies and related reports demonstrate that the experiences documented in the programme are not exceptional. In the words of the UN Special Rapporteur on Violence Against Women and Girls: Within the context of child custody cases, there exists multi-layered violence that has yet to enter the collective conscience of the international community as a human rights issue.
A research study led by Dr Dalgarno [University of Manchester] has revealed patterns of trauma-inducing actions and behaviours by judges, lawyers, court officers, and abusive partners in the Family Courts: Court and Perpetrator Induced Trauma.
The study reviewed 45 Family Court cases. All involved an initial report by the mother of some form of abuse by the father. The mothers had all either been accused of or warned about parental alienation or alienating behaviours. The courts subsequently ordered some form of contact between the child and their father in 43 out of the 45 cases, including fathers with child sexual abuse convictions. 'She [Cafcass officer]told me actually, in the garden that if I didn't agree to contact, the judge would make a decision that I wouldn't like, and that was her threat to me on a change of residency...I was constantly accused of parental alienation...you become clinical...I wasn't sleeping'.
Mothers self-reported numerous mental health and physiological conditions which they say were exacerbated by or directly associated with the court proceedings. These included memory loss, depression and flashbacks, Crohn's disease, cancer, psoriasis, heart palpitations, and miscarriage. Those responding reported suicidal ideations; some said that mothers known to them had died by suicide following parental alienation allegations. 'There have been four times I've seriously considered killing myself.'
The extent of the problem is tacitly acknowledged by the recent signposting guidance 'At Risk of Suicide: Information for professionals working within the court system' published by the working group of the Family Justice Council. It highlights the absence of, and urgent need for a comprehensive framework to prevent suicide and suicidal ideation related to court proceedings, one which tracks the impact through every stage of the process on domestic abuse survivors and understands exactly how they are re-traumatised through the proceedings.
Even more concerning, a Women's Aid Child First Campaign and subsequent 2016 report highlighted several court-related decisions on child arrangements which have resulted in the homicide of nineteen children. All the perpetrators were fathers of the children who were killed. All had access to their children through child contact arrangements. Tragically, two mothers were also killed and two children seriously harmed through attempted murder.
The situation has not improved. In response to continuing concerns regarding unsafe child contact, Right to Equality has launched a campaign to end the presumption of child contact with abusive parents. Speaking at the launch, the CEO of Rape Crisis England & Wales pointed to the systemic failings of the Court: 'When I managed a team of Family Court assessors, I found that in all child contact disputes involving domestic abuse, some form of contact [usually direct] had been ordered before a risk assessment had been completed. And in 75% of the cases where direct contact was taking place, the perpetrator had been accused, had admitted to, or the court had made findings about the use of life-threatening violence.'
Research by Hague Mother's campaign reveals that a significant majority of mothers enter the justice system as victim-survivors of domestic abuse – physical, sexual, psychological, or economic. 'He was controlling. He didn't hit me, but he would get up really close to me and scream in my face. Or if I did something wrong, he wouldn't speak to me for weeks. But I never knew what I did wrong so I'd be walking on eggshells. So yes, it was total control.' Another victim said, 'I was getting abuse – not only physically but mentally too. I never told anyone. I was embarrassed this was happening to me. I'd make up excuses for my black eyes, lie to doctors about broken bones.'
In respect of mothers facing a Hague Petition, they are additionally traumatised by their escape across international borders: ‘I had to leave everything behind, just take a suitcase for my son, a suitcase for me, and go. And I was panicking, just get me on a plane, get me on a plane, get me on a plane. It was very emotional. I cried the entire flight. I remember my mum saying …you were like a shell, like this shell of a human’.
Women tend to assume that the courts will protect them and their children, that they will receive justice. The reality is clearly very different.
In a presentation to the Child-Friendly Family Courts Conference [November 2023], Natalie Page of Survivor Family Network spoke about the concept of ‘lawfare’, a term coined by the military.‘ Lawfare’ refers to the use of the law as a substitute for military means to achieve an operational objective. Applying the term to the Family Courts, she argued that: A perpetrator accessing the family justice system has usually set their objectives long before they walk into the court room. Broadly speaking, the objective of a perpetrator is usually to punish a victim. […] He intends to extract the worst possible punishment on the mother – to remove her children from her’.
Survivors’ stories reveal that this threat tends to be made explicit long before any court hearing, most often at the point when the mother has decided that she is going to leave the relationship. Mothers attend court knowing that ‘the worst possible punishment’ is a likely outcome. For the perpetrator, the children are collateral damage in this unequal battle. ‘I will never be able to express the fear and indescribable stress of going through the court process with someone I was terrified of’.¹
The Nuffield Family Justice Observatory Spotlight Report [September 2023] found that victims of domestic abuse considered their court experiences overwhelmingly negative and that regardless of the case outcome, the experience was re-traumatising. They feared for their own safety – physical and emotional, and for the safety of their children. Evidence suggests they are right to do so.
Inequality of Arms
In 2020, the Ministry of Justice Harm Report asserted that within private law proceedings, ‘abuse is systematically minimised, ranging from children’s voices not being heard, allegations being ignored, dismissed or disbelieved’. The finding is reinforced in mothers’ testimonies, particularly in relation to allegations of domestic or sexual abuse. In fact, while spurious allegations of domestic abuse are occasionally made, this is rare. Between 2018 – 2021, the Metropolitan Police recorded 365,363 domestic abuse offences of which only 50 [0.01% of the total] were deemed to be false. Further, within child proceedings, it is more common for non-resident parents [usually fathers] to make false allegations of abuse than for mothers to do so.
Even when mothers’ allegations are accepted, the impact of domestic abuse and its effects on children are frequently underestimated by judges who tend to prioritise contact with fathers in the majority of cases. The gender-bias is pervasive and pernicious. A recent report by the UN Special Rapporteur on violence against women and girls found extensive evidence of ‘the depiction of mothers as vengeful and delusional by their partners, courts, and expert witnesses. Mothers who oppose or seek to restrict contact or raise concerns are widely regarded […] as obstructive or malicious, reflecting the pervasive pattern of blaming the mother’.
The bias continues despite Practice Direction 12J which sets out how evidence of abuse should be taken into account when there is ‘an allegation or admission of harm.… to the child or parent’.
‘In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child’s life will further the child’s welfare, unless there is evidence to the contrary. The court must in every case, consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent, or any evidence indicating such harm or risk of harm’. It is apparent this directive is frequently not being followed.
In fact, academic studies such as that undertaken by Kaganas  ² reveal a worrying tendency by judges and court officers to placate Fathers’ Rights Groups; others have raised concerns regarding what appears to be an alignment with Fathers’ Rights Groups by both the judiciary and Cafcass. The President of the Family Courts and senior members of Cafcass, for example, are regular keynote speakers at Families Need Fathers conferences including 2020, 2022, and 2023. And yet, the Family Court President declined an invitation to attend the upcoming SHERA Research Group conference in 2024 [SHERA focuses on the health and rights of women and children].
However, it is heartening that Cafcass [England] have a Learning and Improvement Board  which includes members of multiple groups representing the experiences of women. We remain hopeful that SHERA and FiLiA Hague Mothers will be invited to attend this or similar endeavours.
This seemingly embedded bias goes directly to the heart of the issues raised by the Mums on the Run documentary, i.e., the lack of access to justice for victims of domestic abuse. The 2023 Domestic Abuse Commissioner’s report highlighted the paramountcy of judicial neutrality in these cases; fairness and justice require a consideration of ‘whether there are opportunities to participate [voice]; whether the authorities are neutral; the degree to which people trust the motives of the authorities; and whether people are treated with dignity and respect during the process’.
These essentials are frequently absent from family court cases, and mothers and children bear the brunt of the impact with often catastrophic results. The lack of neutrality is most clearly demonstrated in the prevalence of so-called ‘parental alienation’ allegations – one of the most pernicious methods used to undermine a mother’s testimony, particularly in cases involving domestic and sexual abuse.
The 2020 Harm Report warned that so-called parental alienation was consistently reported as being utilised to diminish the voices of victim-survivors and to reframe them as the alleged abuser, switching the focus away from the perpetrator. One mother reported: ‘I am the one who faces false allegations of parental alienation and brainwashing …the professionals don’t know how to identify a real victim and are easily manipulated by the perpetrator’.
Despite the prevalence of its use in family courts neither parental alienation or alienating behaviours are recognized in law. In fact, both terms have been rejected by government and do not feature in either the Domestic Abuse Act  Statutory Guidance, or the Controlling and Coercive Behaviours Statutory Guidance . Furthermore, on the 9th November2023, in their formal response to the Domestic Abuse Commissioner’s report on the Family Court, the government emphasized that they do not recognize parental alienation, urging professionals to instead utilize the language of coercive control to explore child manipulation: ‘The government does not recognize so-called parental alienation as a concept and did not include parental alienation in the Controlling and Coercive Behaviour [CCB] Statutory Guidance that accompanied the Domestic Abuse Act  […] the CCB Statutory Guidance does not make clear that making false allegations to statutory services and utilizing children to control the victim is part of a pattern of behaviour that amounts to CCB’.³ The President of the Family Court considers the term ‘unhelpful’ and has urged caution against the use of ‘pseudoscience’ in courts.
It is therefore particularly concerning that Cafcass continue to use an alienating behaviours framework which they have developed from references on parental alienation, and that the Family Justice Council have recently released draft guidance on Responding to allegations of alienating behaviours, intended to provide direction for legal professionals when such allegations are made. Whilst the guidance has received some positive reviews, it fails to engage with international challenges to the concept and use of parental alienation. Indeed, the authors explicitly state that the guidance‘ does not aim to explore the research literature into the concept of parental alienation, the socio-political context in which such allegations arise, or to give an historical account’.
The continued use of parental alienation in our courts is profoundly worrying since these allegations have a detrimental effect on the outcome of child arrangement cases and thus on the safety and well being of the child. Challenges to the concept include its deeply concerning foundations and highly gendered application, inconsistency of definitions and dubious evidence base, and the lack of any systematic consideration of alternative reasons why a child might reject a parent.
The 2023 report by the Domestic Abuse Commissioner amplified these concerns. The report quoted the findings from a Cafcass Cymru project which acknowledged that: ‘there is no commonly accepted definition of parental alienation and insufficient scientific substantiation regarding the identification, treatment, and long-term effects […] Without such evidence, the label parental alienation syndrome has been likened to a ‘nuclear weapon’ that can be exploited within the adversarial legal system in the battle for child residence’.
It’s use, particularly in cases of domestic or sexual abuse, places protective mothers in an impossible position. If they insist on presenting evidence of abuse, this will be interpreted as an attempt to alienate the child from the father. The mother then becomes the problem and the father becomes the victim. By reframing a mother as a liar who emotionally abuses her children, the parental alienation label diverts the attention of courts away from the question as to whether a father is abusive and replaces it with a focus on a supposedly lying or deluded mother or child [UNSRVAW 2023].
As such, many have called for the rejection and in some cases, the prohibition of these frameworks in child-arrangement proceedings, and yet, they persist.
What has become known as the parental alienation industry has been reified in the legal system through formal training and promulgated in academic journals. At the front end of this highly profitable industry are the ‘experts’ utilized by the courts to establish the veracity of parental alienation allegations and by implication, the best interests of the child. The power of these unregulated individuals is extensive. Their reports tend to be accepted wholesale even when there is evidence of abuse, and custody decisions are made on the basis of their recommendations. A recent high-profile case [Re C] led to parental alienation‘ experts’ qualifications and expertise being called into question. In response, the President of the Family Courts has insisted that it is for Parliament to legislate on the types of experts and expertise that can be drawn upon to provide input into such cases.
Parliament have yet to address this matter. Meanwhile, unqualified experts continue to operate in the family courts and to cause serious harm.
Towards a safe & just Family Court
The Domestic Abuse Commissioner’s report  envisions a family court system that fosters a culture of safety and protection from harm, where children’s needs are prioritized, the impact of domestic abuse is fully understood, and victims and survivors feel heard and valued. In her recent response to the government’s Domestic Abuse Plan, the Commissioner again emphasized the need for survivor engagement and for their experiences to be at the heart of future policy making. Domestic Abuse survivors themselves are calling for their experiences to be used to support others: It may be an idea to provide a survivor’s experience of family court and to warn future survivors that family courts can dismiss evidence of abuse and be seen to be siding with the perpetrator – this is a common experience of survivors and they need to be reassured that they are not alone.
As outlined above, there is a growing awareness, backed up by research about what can and is going wrong. In particular, the 2020 Harm Report gathered extensive evidence from individuals and organizations across England and Wales, alongside roundtables and focus groups with professionals, parents, and children with experience of the family courts.
The Report highlighted multiple issues in the family law court system with agencies working in silos, an adversarial culture and pro-contact approach [regardless of abuse] with much harm being inflicted on families and children by these systemic problems.
Everyone tells you to notice red flags and to get out – nobody tells you how to protect your children afterwards, when you are both subjected to continued contact.
There is also a growing consensus about how we might begin to solve these widespread problems. For example, at a systems level, the Harm Panel recommended that training in the family justice system should cover overarching reform, a cultural change program to introduce and embed reforms to private law children’s proceedings and help to ensure their consistent implementation. Some of the Harm Report’s recommendations have been implemented albeit inconsistently. These include the prohibition of cross-examination provisions, the use of separate entrances for domestic abuse victims, and the option of remote hearings.
Crucially, Independent Domestic Violence Advocates [IDVA’s] and Independent Sexual Violence Advocates are now permitted access to family court to provide crucial support for victims and survivors of domestic abuse during proceedings.
However, advocate availability is very limited – a 2021 Safe Lives Report suggests that 40% of domestic abuse victims go through court without any formal support.
Similarly, the Domestic Abuse Commissioner’s 2023 report outlined numerous improvements which have been implemented by the courts. The Commissioner also presented a new model –reluctance, resistance, refusal with a view to bringing a holistic and child-centred approach to the court proceedings. Above all, her report called for a nuanced and victim-centric approach, echoing the concerns of others who believe that by placing the focus on parental alienation moves the attention away from the safety and well-being of children and leads to unsafe contact.
In terms of culture, the Domestic Abuse Commissioner’s report was clear: improvements in the courts can only be achieved by improving the judges, lawyers and court officers understanding of domestic abuse, including the particular issues and barriers faced by victims and survivors in the court context. The Commissioner reiterated that in line with Article 12 of the UN Convention on the Rights of the Child and s1 The Children Act 1989, the voice of the child must be central in these proceedings, and their safety and wellbeing paramount.
The priority is made explicit in the excellent but inconsistently applied Practice Direction 12J which acknowledges that children may suffer direct physical, psychological and /or emotional harm from living with violence and abuse and may also suffer harm indirectly where the violence or abuse impairs the parenting capacity of either or both of their parents.
Any child arrangement order must protect the safety and wellbeing of the child and the parent with whom the child is living and not expose them to the risk of further harm.
And at a procedural level, the Pathfinder approach is explicitly non-adversarial and supportive, built around multi-agency working. There is a presumption that children will be listened to, given the opportunity to participate in ways that work for them as individuals. According to two of the judges involved in the pilot, the Pathfinder model has the potential to completely transform the way the family court deals with domestic abuse, creating a much less adversarial experience for adults and child survivors.
So, what do the survivors themselves think?
Victims of domestic abuse continue to find the experience of being in a family court a traumatic one. They feel anxious, out of their depth and fearful – with good reason: ‘because this is about my child … it’s intimidating and it’s worrying as well that you are going to get something wrong because you haven’t got someone else there to help you out.
A Northumbria University research study led by co-author Dr Hussein worked with domestic abuse survivors who had experience of the family courts. Their [often] harrowing experiences provide further evidence of the problems and highlighted their priorities for change. These were  practical: special measures;  procedural: rights, complaints and appeals; and  cultural: transparency and trust in professionals.
As victims of domestic abuse, mothers are frightened of the abuser, and about the opportunities for further abuse offered by the court process. In this context, the availability of special measures such as screens and separate waiting rooms were welcomed as providing a modicum of protection. Advocate support [IDVA, etc] in particular, was viewed as essential by survivors. Support after court /during court proceedings would be so helpful. The emotional toll is horrendous and it felt like the system is trying to break you down bit by bit.
In relation to transparency and trust, the Domestic Abuse Commissioner’s report recommended the appointment of domestic abuse best-practice leads in every family court area with the aim of driving best practice to ensure a trauma-informed family-justice system with a national and consistent approach. The report also called for greater transparency and consistency across the system, backed by a comprehensive domestic-abuse training programme.
The current reality is that the culture of the family court remains adversarial and poorly informed about the reality of domestic abuse three years after the Harm Report identified this culture as detrimental to families. Lessons could perhaps be learnt from criminal courts where domestic abuse victims felt supported and believed. The contrast with family courts was stark for those who had experienced both. In the family court, evidence becomes an allegation and victims become alienators –perpetrators of abuse.
Most of the time, the court considers evidence as ‘hostility’ towards the other parent, and not a way to defend ourselves and our children against the perpetrator. Similarly, smear tactics are used to undermine the victim and support counter allegations; they vilify you, discredit you, and the court doesn’t care.
In this regard, many victims were disturbed to discover that their GP records were being disclosed to the perpetrator in the family court, and problems of mental health or addiction [invariably caused by the abuse] were used against them, particularly in custody battles. Once again, the mother becomes the problem, the inadequate parent.
The lack of trust in solicitors and court officers was striking. Victims felt misrepresented at best, unsupported and abandoned at worst. Sometimes barristers will tell you to just agree to contact because the abuse ‘wasn’t that bad’ and it makes no actual difference to any orders. The Court will ignore disabilities, as will the Children’s Guardian if it makes their job too difficult.
The adversarial culture exacerbated the problem of trust. Mothers felt that they were being lied to and lied about. The other side will not always use appropriate language, even if they are meant to represent only the children. Sometimes documents will mysteriously vanish…and facts change…or terms will change. For example – ‘father being investigated for sexual abuse and domestic violence …can become … father being investigated for historical risk-taking behaviours.
Nor were judges trusted. I think judges have too much power and not enough accountability. We are naturally not wanting to go against the law and the consequences are horrendous. It’s a culture of fear in court.
Concerns about judicial bias and lack of accountability are exacerbated by the judge’s ability to edit the court transcript before it is made public. This potentially enables changes to be made which could influence, whether positively or negatively, the outcome of any appeal.
The ‘culture of fear’ experienced by many mothers also impacts on a victim’s willingness to make a complaint, however justified. Complaining about a judge or asking to change the judge always goes against [you]… it is very difficult that the request is accepted and you risk end[ing] up having the same judge [behaving] even worse.
It is vitally important that victims can hold judges accountable, particularly given the principle of judicial continuity which can mean that victims are trapped in a dynamic that will not achieve a safe or just outcome, for them or their child. Should they wish to appeal against a judge, they must first ask permission from that specific judge. The appeal is often refused and the mother finds herself in a significantly worse situation.
Currently, domestic abuse survivors are woefully under-represented in discussions that underpin policy making in this regard whilst being on the receiving end of a system that causes demonstrable harm to them and their families.
As a community of practice – legal, academic, professional, experiential, we have collectively identified a range of potential solutions, actions that will bring us closer to the goal of a safe and just family court system. Some have been implemented with positive results. Others require a cultural shift, training, and awareness-raising, or simply a consistent approach. None of this is rocket-science. But there are two essential requirements for success.
First, the lived experience of domestic abuse victims needs to be at the heart of any change, and at the heart of our evaluation of that change. We, and others working in this field, can help with that and would be pleased to do so. Secondly, there needs to be an acknowledgement that family courts are currently failing victims and a genuine commitment to addressing that reality. That’s down to judges, legal professionals, and court officers.
Hunter, R. et al, 2020 Assessing Risk of Harm to Children and Parents in Private Law Children cases. pp. 106
Trinder, L. et al 2014 Litigants in person in private law cases; p 81
Dr Elizabeth Dalgarno, PhD, is the Director and founder of SHERA Research Group and a Lecturer in Health Care Sciences in the Department of Public Health, School of Health Sciences, Faculty of Biology, Medicine and Health, The University of Manchester
Dr Rima Hussein is co-lead for the Gendered Violence and Abuse interdisciplinary research group and an Assistant Professor in Organisation Studies in the Department of Leadership and HRM, Faculty of Business and Law, University of Northumbria.
Ruth Dineen is the co-ordinator for FiLiA Hague Mothers, an international campaign which aims to end the injustices caused by the Hague Abduction Convention, specifically for mothers and children who are victims of domestic abuse.