The Politics

Domestic Abuse Bill 2019-21

Whilst there is no movement afoot for a new generic family justice bill, the Domestic Abuse Bill is currently in the committee stage following the second reading on Tuesday 28 April 2020.

Obviously, shared parenting is not a notion fundamental to this bill BUT the amendments tabled by the MPs Philip Davies and Bob Stewart are extremely relevant to the issue. Namely, amendment 8 as below:-

Clause 1, page 2, line 4 at the end insert:-

(4a) ‘Psychological, emotional or other abuse’ includes but is not limited to:-

  • Parental alienation.
  • False allegations of domestic abuse by A against B.
  • A deliberately preventing B having contact with their child or children for no good reason.

We at the Campaign for Shared Parenting support these amendments for the reasons outlined below:-

1.Parental Alienation

This is recognised by Cafcass, as ‘when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent’

In July 2016, Sarah Parsons,Principal Social Worker and Assistant Director of Cafcass, stated that ‘parental alienation is responsible for around 80% of the most intransigent cases that come before the family courts’. (Whitcombe, Sue, Male psychology Conference 2017) Parental alienation, therefore, is likely to be a feature in a minimum of 9,000 family proceeding applications per annum involving more than18,000 children.

We know of no case brought by the CPS under s66 of the Serious Crimes Act 2015 in relation to Parental Alienation despite that piece of legislation criminalising the psychological abuse of children. Therefore, this practice which is very harmful for children (see below) needs to be included in this legislation.

The diagnostic condition ‘child affected by parental relationship distress (CAPRD)’ is introduced into the Diagnostic and Statistical Manual (DSM5) published by the American Psychological Association. It has been argued that Parental Alienation is an example of CARPD. (Bernet, Wamboldt, & Narrow, 2016;Lorås, 2018).

Importantly, Cafcass acknowledge on their website that ‘Both men and women can demonstrate alienating behaviours’ This is not a gender-specific practice.

A survey of self-reported childhood experiences of three hundred and sixty-one adults in Italy found that 42.1% of participants reported acts of parental alienation by their mothers, and 54.3% reported acts of parental alienation by their fathers. (Marchetti, Daniela 2018).

A retrospective study of adults found that independent of damage of a child’s relationship with the other parent, perceived experiences with parental alienation during childhood correlate in adulthood with lower self-sufficiency, lower self-esteem, higher rates of major depressive disorder, and insecure attachment styles. Baker, Amy J. L.; Ben-Ami, Naomi (October 2011) See also Hughes, 2018, Bangor University

The Association of Family and Conciliation Courts in 2010, 98% of the 300 respondents agreed with the question, “Do you think that some children are manipulated by one parent to irrationally and unjustifiably reject the other parent?”.

Growing number of mental health professionals argue that severe parental alienation should be established as a form of emotional abuse and domestic violence (Harman, Jennifer J.; Kruk, Edward; Hines, Denise A. December 2018).

2.False Allegations

These are damaging to children as they are often denied contact with a loving parent while these are being investigated. This causes considerable emotional harm to the child.

Research  from Professor Tommy Mackay (University of Strathclyde 2014) has demonstrated that more than 70% of allegations of abuse are false.

Our charity has obtained figures from the Ministry of Justice that shows that almost half (49.2%) of s8 applications contain some form of allegation of harm. Woefully inadequate data recording systems within MoJ fail to provide any measure for the number of cases where Findings of Fact have been made and subsequently what percentage have been ‘Found’ based on the civil burden of proof.

There is no acknowledgment of the fact that those who are accused of domestic abuse are generally NOT convicted perpetrators, because if they were convicted there would almost certainly be no need for the fact finding hearing.

The Crime Survey for England & Wales indicates that 5.9% of women and 3.0% of men experienced domestic abuse from their partner “in the last year” In contrast, about 50% of private family law cases (overwhelmingly for child contact arrangements) involve allegations of domestic abuse. (Ministry of Justice Research Team, 2017)This immediately raises a concern that a significant proportion of allegations of domestic abuse made in the family courts might be false.

This high level of false allegations arises because of the significant advantage it affords to the accuser with no significant risk if the falsity is exposed. Perversion of the course of justice only exists in theory in the family courts and we are not  currently aware of anyone being sanctioned for making a false allegation of domestic abuse under this law. Hence making false allegations explicitly recognised as a form of abuse is proposed because it will act as a deterrent which currently does not exist.

There is a general presumption of guilt in the present system of Non-Molestation Orders (NMO) The proposed Domestic Abuse Protection Orders (DAPO).which will replace them will not change this. It is entirely possible for someone to obtain a DAPN (Domestic Abuse Protection Notice)and then a DAPO simply on the basis of allegations.

The dangers of poorly judged Non Molestation Orders granted to individuals to seek to obtain an advantage in subsequent family proceedings have already been addressed by the outgoing President of the Family Division Sir James Munby in guidance he issued in 2017 on the granting of Without Notice Orders[1]

This can lead to the child being physically separated from their parent for an average of 6 months (and often far longer)  until a fact-finding hearing.

If allegations are eventually proven to be groundless on the balance of probability following a fact-finding hearing the damage has already been done to the relationship of the children to the accused parent.

The president of the Family Division Sir Andrew McFarlane has also expressed concern, citing a case in which a parent was subject to a continuing non-molestation injunction preventing their  children from having contact with that parent for a period of years.

“That injunction had been based upon the untested and contested factual allegations which were never tried,” he said.

“Until the factual context is clarified and determined by the court, the arrangements for the children cannot move on and develop in a way which reflects the risk or lack of risk, arising from the facts as they are found to be,” he added.

3.Preventing contact unjustifiably

1. A consensus of scientific research now concurs that children of any age have adverse outcomes the more they are deprived of a relationship with a separated parent (Nielsen, Warshak et al 2014)[2]

2.The denial of contact with a parent is causally related to a range of adverse outcomes for children, many of which persist into adulthood. (Mental Illness – Welsh Adverse Childhood Experience (ACE)  and Resilience Study)

3. 70% of young offenders come from families where contact with one parent is denied (Youth Justice Board, 2002).

4. Edward Kruk, writing in Psychology today in 2012 noted that

Children consistently report feeling abandoned when they are denied contact with one parent, struggling with their emotions and episodic bouts of self-loathing.

Children denied contact with one parent children have more difficulties with social adjustment, and are more likely to report problems with friendships, and manifest behaviour problems.

Truancy and poor academic performance:  Children denied contact with one parent have more trouble academically, scoring poorly on tests of reading, mathematics, and thinking skills; are more likely to play truant from school, more likely to be excluded from school, more likely to leave school at age 16, and less likely to attain academic and professional qualifications in adulthood.

Promiscuity and teen pregnancy: Children denied contact with one parent are more likely to experience problems with sexual health, including a greater likelihood of having intercourse before the age of 16, foregoing contraception during first intercourse, becoming teenage parents, and contracting sexually transmitted infection;

Drug and alcohol abuse: Children denied contact with one parent are more likely to smoke, drink alcohol, and abuse drugs in childhood and adulthood.

Homelessness: 90 per cent of runaway children have an absent parent

Exploitation and abuse: Children denied contact with one parent are at greater risk of suffering physical, emotional, and sexual abuse, being five times more likely to have experienced physical abuse and emotional maltreatment, with a one hundred times higher risk of fatal abuse; a recent study reported that pre-schoolers not living with both of their biological parents are 40 times more likely to be sexually abused.

Physical health problems: Children denied contact with one parent report significantly more psychosomatic health symptoms and illness such as acute and chronic pain, asthma, headaches, and stomach aches.

Mental health disorders: Children denied contact with one parent are consistently overrepresented on a wide range of mental health problems, particularly anxietydepression, and suicide.

Life chances: As adults, children denied contact with a parent are more likely to experience unemployment, have low incomes, remain on social assistance, and experience homelessness.

Future relationships: Children with absent parents tend to enter partnerships earlier, are more likely to divorce or dissolve their cohabiting unions, and are more likely to have children outside marriage or outside any partnership.

Mortality: Children denied contact with one parent are more likely to die as children, and live an average of four years less over the life span.

5. Importantly, according to the definition of abuse by the charity Women’s Aid ‘taking the children away’ is defined by them as abuse under the category ‘Pressure Tactics’ see https://www.womensaid.org.uk/information-support/what-is-domestic-abuse/recognising-domestic-abuse/ As with Parental Alienation, both men and women can  be perpetrators of this practice.

6. We must also remember the adverse albeit indirect effect on female members (grandmothers, aunties, step-mothers etc.) of the child’s wider family who are related to the parent who has been denied contact (or alienated)

Conclusion

Although each one has been  examined separately, all the practices above have the effect of unfairly denying  a child of a relationship with a loving parent. Some of these practices can be committed in isolation of the other two. More often there is a degree of overlap between all three. What is important is to maintain that this is extremely detrimental to their emotional, psychological, social and academic outcomes of the child. These practices are notexclusive to one gender or another. Both the perpetrator and the victim can be male or female. We therefore, for the sake of the children of our service users urge the committee to support the three proposed amendments to the bill as itemised in the summary.

Recent Attempts at changes in the law

There have been several attempt in the last decade to promote a rebuttal presumption of shared parenting in law.

In 2013 and Early Day Motion proposed by George Galloway stated that ‘This House …believes that where there is palpably no threat to children from their father in the context of family breakdown, the courts should try to maximise reasonable access in the interests of the children’

It was signed by 104 MPs

In 2017, Suella Braverman (then Fernandes) introduced her proposed Family Justice Bill under the 10 minute rule for private members.

She stated her support for :-

a rebuttable presumption of shared parenting, which should be the core principle when determining the contact and residence of the children….. As Professor Patrick Parkinson, a former president of the International Society of Family Law has made clear, this refers to a principle that a meaningful relationship with both parents is at the heart of the family justice system. Every child has a right to a proper relationship with both parents but, at present, the law does not make that clear.

There are best practice systems cases that the UK could learn from. For example, in Sweden shared parenting is treated as a legal norm and has managed, in the space of just 20 years, to transformed the landscape for shared parenting. More than 40% of separated parents share care on an equal basis while the majority of separated parents have shared care arrangements where each parent has at least 30% of parenting time.

Legislation that emphasises the importance of both parents in children’s’ lives, other than in cases of violence or where the child is not safe, is commonplace around the world and operates without any difficulty. Good examples are Canada and the US States of Iowa, Florida, California and Colorado. 

As well as Ms Braverman, this bill had the backing of the below MPs:-

  • Andrew Selous
  • Tim Loughton
  • Robert Neill
  • Caroline Ansell
  • Mrs Anne-Marie Trevelyan
  • Lucy Allan
  • Mr David Lammy (Currently Chair of the All Party Parliamentary Group on Fatherhood)

Sadly, the bill fell after the first reading due to the calling of the 2017 election by the then Prime Minister Teresa May.

In 2019, the charity FNF Both Parents Matter (Cymru) launched a campaign to gain as many signatures of MPs as possible to support the statement:-

We believe that s11 of the Children and Families Act 2014 should be changed to include a ‘rebuttable presumption’ (*) of equal shared care of children following divorce or separation. The ‘rebuttable presumption’ of equal shared care means that children should be cared for on a roughly equal split of time by their parents following divorce or separation. It can be rebutted if there are proven reasons (eg safeguarding, practical or any others) that show that is not in the best interests of the child, which remain paramount.

It was formulated with the support of Tim Loughton, former Minister of Children and Families 2010-12.

It also gained the backing of:-

  • Dame Cheryl Gillan (Con)
  • Sir George Howarth (Lab)
  • Jim Shannon (DUP)
  • Steve Double (Con and Deputy Chair of the All Party Parliamentary Group – APPG – on Fatherhood)
  • Philip Davies (Con)

The full text can be found here:-

https://www.fnf-bpm.org.uk/image/upload/branch/cymru/Top_10_reasons_for_shared_care_legislation.pdf

The Campaign for Shared Parenting seeks to increase this number to put pressure on the Undersecretary for the Department of Justice, Wendy Morton, to be moved to introduce a new Family Justice Bill with a rebuttal presumption of Shared Parenting at its core.

To write to your MP in support of this campaign or the Davies amendments to the Domestic Abuse Bill 2019-21, please click on:- https://www.writetothem.com/ and proceed as instructed.

A suggested approach would be:-

Dear …….

As your constituent and someone who has had a personal experience/ personal experience  of a family member/partner/friend  fighting for their child’s right to have an equal relationship with both their parents, I am referring you to the statement on the link below by the charity FNF Both Parents Matter which has been endorsed by Tim Loughton MP and former Parliamentary Under-Secretary of State for Children and Families from 2010–2012.

https://www.fnf-bpm.org.uk/image/upload/branch/cymru/Top_10_reasons_for_shared_care_legislation.pdf

We would be grateful if you confirm if you would be willing to put your name to this statement and the accompanying document by brief reply to this mail so that we can present your support to the Undersecretary of State for the Department of Justice. We hope that she may be moved to consider Family Law reform incorporating this change into statute in the near future.

 For me this is a key issue that will determine the way I vote in the forthcoming election.

Kind regards,

(include name and address)

A suggested template for the mail in support of the amendments to the DA bill is on http://empathygap.uk/?p=3295


[1] Guidance issued by Sir James Munby, President of the Family Division on 18 January 2017. https://www.judiciary.uk/publications/practice-guidance-family-court-duration-of-ex-parte-without-notice-orders/

[2] Nielsen, Linda Joint Versus Sole Physical Custody: Children’s Outcomes Independent of Parent–Child Relationships, Income, and Conflict in 60 Studies Citied in 2018, Journal of Divorce and Remarriage. https://static1.squarespace.com/static/5154a075e4b08f050dc20996/t/5ae74a1f88251bd2b30f7317/15 25107248150/2+Nielsen+60+studies+JDR+.pdf  (see page 2 ‘Abstract’)