Legal Wrangle Forgets Child

Family court judges have pushed their luck by probing into very private areas of family life regarding matters which are extremely complicated. It is now almost inevitable that mistakes will be made. In a recent private law case the Court of Appeal has strongly criticised Judge Tolson here . The appeal court judge concluded that he had employed obsolescent concepts concerning the issue of consent, instead of a proper legal argument informed by the newer concept of controlling and coercive domestic abuse. Unfortunately, the resulting Twitter storm and media coverage driven by some feminists has completely missed the point. They have forgotten the child.

The core facts in this case are as follows. The parents met in 2013 when the father was 23 and the mother 17 years old and shortly afterwards the mother moved in with the father. Over the course of their relationship the mother made multiple complaints to the police that her partner was aggressive and abusive towards her, although charges were never brought. They have a son, who was born in January 2015. The couple relationship became increasingly strained and they finally separated in August 2016, when the mother went to stay in a refuge, taking the son with her.

More than two years later, in October 2018, the father applied for a child arrangements order. His application triggered a fact finding hearing because the mother alleged domestic abuse and serious sexual assault. The father was at some disadvantage at the hearing in August 2019 because he was not granted legal representation, although the mother was. Judge Tolson did not uphold the mother's allegations of sexual assault here . The mother appealed and a retrial was ordered.

The interminable legal wrangle in this case has made everything too complicated. It is obvious that decision-making regarding children must be conducted carefully but the ongoing arguments about the intricacies of the law and the absence of any facts about the child makes it seem as though the child is unimportant. There seems to be a presumption that the family court can establish the truth about domestic abuse in a manner similar to the criminal court. In this case the judge had to consider whether this mother had been subjected to penetrative sex without her consent by the father. The police had been given information about an alleged sexual assault but no action was taken by the Crown Prosecution Service. Also, it was noted that due to her psychological state she was not able to take physical pleasure from sex. It can only be concluded that anyone expected to arrive at the truth about consent to sex within this relationship would have an extremely tall order.

The most curious aspect of this case is whether a detailed examination of the sexual activities of the couple in the past was really necessary. For two years the son has been in a safe place with the mother, which means the current risk to him is minimal. The appeal court judge introduced the new legal concept of coercive control, which has been introduced in the criminal court. Although this may have been an underlying dynamic in the couple relationship in the past, the mother has now successfully escaped from the father's control and has established her independence.

During the appeal, it was disclosed that the father had convictions for theft, common assault, criminal damage, resisting arrest, and battery and criminal damage involving a former partner, and had been subject to numerous police call outs for alleged domestic abuse of two previous partners. His own mother, brother and aunt had also all complained to the police about his violent and abusive behaviour in the past. The fact that the father has a long history of violence obviously raises serious concerns. On the other hand, the mother lived with him for some years and they had a child together. She must have had some positive feelings for him at the beginning of their relationship.

The father's application to court shows that he wants to enter his son's life in some way. It is unfortunate that the legal process has been used to re-ignite conflict rather than to contain it and and seek resolution. This couple needed help to come to terms with their situation and arrive at a negotiated solution. Gill Gorell Barnes is a family therapist with a special interest in working with fathers within family court proceedings. In her book (see Further Reading below) she examines the developmental problems that may cause boys to become violent in emerging adulthood and suggests that a therapeutic approach can be helpful:

The majority of fathers that I have worked with in the context of the family court have been men who also suffered from mental and emotional disorders that, in turn, could be considered through the lens of anxious and disorganised attachment. The therapeutic work I have attempted in a legal context has been in the framework of alternative dispute resolution agreed by both parties as an attempted way forward, and second as "expert witness" (someone defined as having special skills or knowledge), sought and agreed by the parties and solicitors concerned and recommended to the court. The primary goal of all this work has been to provide an opinion relating to specific questions regarding future care of the children.

In recent decades the pattern of family life has changed dramatically and more couples are having children without getting married. The reasons for these changes are complex. While most children feel distressed when their parents' relationship breaks down, even when those relationships are riddled with conflicts, they may realise that it is better for their parents to live apart. Children show their distress in many different ways. Unfortunately, in this case nothing is known about how the boy has responded to his father's absence. The rights of the child have been promoted by lawyers but we have a long way to go before the rhetoric of this rights-based approach is incorporated into legal practice.

Poor practice in private law cases is not uncommon. Rulings are based on the principle of the balance of probabilities. However, media coverage of this case does not make clear that there is a significant distinction between the approach of the family court and the criminal court. Judge Tolson could have handled this case better but it appears he simply wanted to avoid endless legal scrutiny of highly disputed 'facts' and move on to consideration of the boy's welfare.

A family court judge should approach the task in two stages. The first is to consider whether a serious sexual assault took place. If this is deemed a 'fact' the judge must then consider the consequences of this. What is required is a better understanding of the circumstances that led to the assault rather than a punitive response. The judge would need to acknowledge the victim's distress but should avoid an unnecessary legal wrangle about the meaning of consent within a relationship in the past. It should also be recognised that, in this case, the appeal and its publication may have caused the parents further distress.

When a case such as this comes before a family court judges are now being pushed into a more adversarial approach that reinforces conflict between parties and reduces the likelihood of achieving conciliation and resolution. The public is divided over the appropriate level of state intervention into family life that is necessary for resolving disputes between parents. Professionals within the system may claim that the law gives families appropriate support but many parents do not experience it this way.

Some parents are finding it difficult to meet their children's needs after separation but it should not be assumed that everything has to be resolved through the court. There should be a greater input from social workers and family therapists to engage the family in work that looks at the pros and cons of the child maintaining an ongoing relationship with both parents.

It appears that the parents who need most help are those who cannot move on emotionally and remain locked in an ongoing battle with a former partner. This points to the need for a service that can elicit a more thoughtful and sustained consideration of what needs to change. This service should be staffed by senior practitioners with training in social work and family therapy to work towards an agreed solution. The parents would have to understand that this service is offering them the last chance of receiving personal help for their difficulties and final decisions will be made about the arrangements for the children. The role of the family court would then be to receive a report from this service for consideration and to make an appropriate legal order.

Hilary Searing