Butler-Sloss

 

 

Nationalisation of the family

 

Dame Elizabeth Butler -Sloss is the President of the Family Division  - about as high as you can get in English family (laugh) law courts and on a par the Canada's Supreme Court Madame Justice Claire L'Heureux-Dubé (a well-known feminist judge). However, Elizabeth Butler-Sloss is not well-known as a feminist judge but sides with them too many times to be impartial.
RW

Quote :- It is, in my view, particularly apposite to look again at contact since organisations representing fathers are becoming increasingly vocal about the way they consider they are unfairly treated by the family courts." - Butler -Sloss, Nov 2001.

Butler-Sloss, Nov 2001

Shortened version:-

" As President of the Family Division, and particularly continuing my predecessor's post as a Patron of your organisation, under its new name of Children Law UK, I am delighted both to support the work of the organisation generally, and today's event in particular. I am impressed and delighted that so many renowned experts in their field have given their time to speak today on what is, undoubtedly, not only an extremely important subject but also a complex one, perhaps how complex has been particularly shown to us by Claire Sturge. You have heard the experts, I now give you the lawyers' approach, at least a lawyer's approach.

One area of concern about children which has been in the past somewhat under-appreciated is in respect of children one of whose parents, or carers has been violent to the other carer. As you all know, domestic violence has in the last two years or so rightly received publicity and greater public awareness. I hope that you will forgive me, despite the earlier speakers, for giving an overview of the subject.

One area of concern about children which has been in the past somewhat under-appreciated is in respect of children one of whose parents, or carers has been violent to the other carer. As you all know, domestic violence has in the last two years or so rightly received publicity and greater public awareness. I hope that you will forgive me, despite the earlier speakers, for giving an overview of the subject.

The evidence of the existence of widespread domestic assaults by one partner on the other is incontrovertible. The majority of victims, according to research, are women, although there is a significant minority of female aggressors. There is extensive research on the large number of women who have been victims of violence in the home and the adverse effects upon them and upon their ability to function normally. The research has also shown the adverse effect upon their parenting skills.

Domestic violence covers a wide range of unacceptable behaviour within the family and may take many forms. Indirect violence, threats and verbal abuse may, in certain cases, be as detrimental as actual violence and may have an equally destabilising effect on the other partner. Violence is a form of emotional or psychological abuse as well as physical assault. The research has also shown that the majority of women do not go to the police and do not disclose the violence to their general practitioners. This may be due to fear of repercussions or stigmatism or feelings of shame.

Magistrates hear the more frequent complaints of assault by one partner against the other, or by each partner against the other. The police have been and continue to be called to the scene of warring partners and the violence has often been recorded as a domestic dispute. The description `domestic dispute', particularly where the physical injuries were not severe, may have contributed to a widespread view in the past that domestic violence was not a serious matter. It is also true that a significant number of women make complaints to the police and then withdraw them, often on the day of the hearing before the magistrates. The withdrawal of the proceedings is not a fair indication of the seriousness of the assaults but may be the result of other factors, including pressure from the other partner, or recognition of the difficulties for the complainant and her children flowing from the outcome of the hearing.

Over the years there have been attempts to raise the profile of violence in the home. Erin Pizzey opened the first women's refuge in Chiswick, West London in 1973. She wrote of her experiences in a book entitled "Shout Quietly or the Neighbours Will Hear". Women's refuges have now opened all over the country and there is a national organisation entitled `Refuge' founded to assist women and children who are victims of violence. Marital conflict and family violence has been the subject of an increasing number of medical papers and publications. It has become an issue of increasing concern for the Home Office, the Lord Chancellor's Department and the Department of Health. In passing Part IV of the Family Law Act 1996, which provides for remedies against molestation and for occupation orders, Parliament clearly had the problems of domestic violence well in mind.

. In extreme cases, such as the murder of the mother by the father, the effect upon the children was obvious to everyone. The effect upon the child of witnessing assaults and threats was less obvious.

As Dr Sturge has told you, on the 22"d March 2000 the Court of Appeal, Thorpe LJ Waller LJ and I, heard four appeals which had been grouped together in order for us to look at the issue of contact where there had been violence in the home (re L, re V, re M and re H [20001 2 FLR 334). The Official Solicitor, at our request, provided the Court of Appeal with a joint report from Dr Sturge and Dr Glaser, both distinguished child psychiatrists. [The report appeared in Family Law, July 2000 at page 506].

There were over 200 responses to the paper and the Sub-Committee sent its final Report to the Lord Chancellor on the 29th February 2000.

The Lord Chancellor permitted us to see a copy of the Children Act Sub-Committee Report [Contact between children and violent parent: the question of parental contact in cases where there is domestic violence'] before its publication. We gave, in our judgements some general guidance on this important issue (see Butler-Sloss P at pp336 -344; Thorpe LJ pp 359 - 370; Waller LJ p371).

We need to tap in to the increasing knowledge of the effect of violence within the family upon the children. If one stopped to think, it would be obvious that it would be so. Marital disharmony, particularly demonstrated by endless arguments and quarrels and the resultant tension within the family are well known to affect children.

There are four points, which among others, are, in my view, of particular significance in an application for contact: a) the extent of the violence b) the effect upon the primary carer c) the effect upon the child d) the ability of the offender to recognise his behaviour and attempt to change it.

Where violence has been alleged, it will be a matter for the court to decide whether, if proved, that violence would be relevant to the issue of contact. Where the allegations made, if proved, may have an effect on the outcome, the court must adjudicate on them and find them proved or not proved. As the Court of Appeal pointed out in re L and others, there is, and there should be, no automatic presumption against contact in a case where domestic violence has been established. It is one highly relevant factor amongst many which must be taken into account when the difficult balancing exercise is carried out by the judge applying the welfare principle and the welfare checklist, s (1 (1) and (3) of the Children Act 1989.

Of importance here is also that the court does explore allegations of violence, even where the parties to a contested application for contact subsequently appear to have reached agreement. The court must be aware that there may be situations in which a respondent mother (as is more often the case) feels pressurised into agreeing to some form of contact with the result that the allegations of violence are never investigated.

Domestic violence is, of course, an assault, a criminal offence, and should not be regarded as any less serious because it occurs in the "domestic" arena.

The Magistrates Association is currently looking into the problem of the seeming lack of communication between criminal and civil courts, in particular where perpetrators of violence, who are the subject of criminal proceedings are granted bail in circumstances where the magistrates are unaware that they are already bound by civil injunctions seeking to protect the victim. This is an area raised by Auld LJ in his report on the criminal courts.

An important consideration, when considering if the fact of domestic violence is relevant to the issue of contact, is the effect upon the primary carer of the violence after the separation. Many victims of violence remain afraid of their former partners and that fear is obviously communicated to the child, not necessarily by the parent telling the child of his/her fear.

As in other areas of family law where children are concerned, the stability of the placement for the child is of crucial importance since its breakdown, or the undue fragility of the primary carer, can have serious consequences for the child. In a situation where the court is faced with an application for contact which could not effectively be arranged without the risk of serious harm being caused to the primary carer the court would have to approach the issue of contact with extreme caution. It is clear from the body of mental health and social work research and a long line of authority that the protection of the primary carer for the benefit of the child is of primary importance. In serious cases of violence, if contact is to take place, it may be necessary to provide safeguards under Part IV of the Family Law Act 1996.

The courts may not have always sufficiently taken into account the ongoing consequences for the child of contact with a non-resident parent who has been seriously physically or psychologically violent towards the primary carer. Dr Sturge and Dr Glaser, in their report to the Court of Appeal, reminded us all that domestic violence in a family where there are children is a significant failure of parenting. The reluctance of the child in these circumstances to see the non-resident, violent parent, may have a firm basis. The wishes and feelings of a child who has lived in a violent household have to be given appropriate weight.

There will be a small number of difficult cases in which the child would be entitled to have a guardian to represent him/her in order for the viewpoint of the child to be presented adequately to the court. Judges in private family law cases in particular should have this in mind when considering an application for contact where there have been allegations or findings of domestic violence. This point was made clearly by Lady Justice Hale in re A [representation of child's interests] Court of Appeal, 20th November 2000 (referred to in Family Law, volume 31 page 241) who said:

"The evidence is now quite clear that children whose parents are separating, and especially if their parents are in conflict with one another, need a voice, someone who is able to listen to anything they wish to say and tell them what they need to know. Sometimes they need more than this and that is someone who is able to orchestrate an investigation of the case on their behalf. "

d) The ability of the offender to recognise his/her behaviour and attempt to change it

Once the court has found proved violence which is significant and relevant to the disposal of the case, the court must not only consider the effects of that violence on the child and the primary carer, but should also consider the response of the perpetrator of the violence

As I said in that appeal [Re L ] :

" In the light of the findings of the judge of serious violence by the father including a catalogue of sadistic violence, that he had a very real anger and control problem, and the denial by the father of the facts found by the judge, the judge 's decision not to grant direct contact was entirely in line with the clear advice in the psychiatric report provided to this court. The judge said

" ....it might be a good idea for him to look in a mirror and begin to accept what he is and what his role has been in the mother's life and during her pregnancy with T and subsequent to her birth. The sooner he comes to terms with the fear he has caused and the long-term emotional scars he has caused, the better."

The risks to the child were obvious and the father, in refusing to face up to them, was clearly unable to reduce those risks. "

Mr Justice Wall set out in re M (Contact: Violent Parent) [1999] 2 FLR 321, the importance of the violent parent understanding the consequences of the violence and consideration being given by the court to his/her capacity and genuine desire to change. If necessary, this should include the violent parent seeking help for aggression.

Relevant protection for the primary carer may be necessary at all stages. An application for interim contact may require careful consideration. It obviously depends upon the seriousness of the allegations, but, if sufficiently serious, proper precautions must be taken to protect the child and the primary carer. In some cases that may mean no contact or only contact in carefully supervised circumstances together with, where appropriate, suitable injunctive relief.

If the court decides that interim contact is appropriate, it will have to consider how contact will take place and whether precautions need to be taken. This may also apply to arrangements for continuing contact. As a patron of the National Association of Child Contact Centres, I should at this stage put in a plea for the contact centres all round the country. The majority of them are staffed by competent volunteers who are not qualified and should not be asked to deal with violent or abusive parents. If there is any danger of misbehaviour by the offending parent, it is NOT appropriate to make an order fox contact to take place at a supported contact centre.

It does well to remember at this stage that such forms of contact are not themselves without risk to the child. As the Court of Appeal pointed out in Re L (above), supervised contact or contact only at a contact centre is not an appropriate long-term solution to contact issues. In Re M, no effort was made to move the contact on from supervision by the mother in the contact centre. The contact came to an end after an argument between the parents in front of G who subsequently said that he did not want to see his father. The father started proceedings in February 1998. Attempts were made to restart contact. The child was taken to the contact centre but he refused to see his father. By the date of the hearing the boy had not seen his father for 2 years.

In this case, although the violence had a lasting effect on the mother, violence does not appear to me to be the main cause of the refusal of contact by the mother. The judge formed the view that the source of the problem was the long period of contact at the contact centre and that the matter should have been tackled years before. . It would seem that, for a normal boy, the contact over the years in the contact centre must have lacked stimulus and interest and the relationship between the father and son does not appear to have had an opportunity to blossom and develop. In the psychiatric report, unstimulating experiences which were lacking in interest, fun or in extending the child and his experiences, were included among the risks of direct contact with the non-resident parent.

The courts naturally start with the view that in most cases contact between the child and the non-resident parent is desirable both for the child and for the parent. It accords with the general welfare of the child under section 1 of the Children Act 1989 and with Article 8 of the European Convention on Human Rights and Article 7 of the United Nations Convention on the Rights of the Child. However, serious cases of physical or psychological violence to the other parent, where there are children in the family, have to be treated by the courts with an extra degree of caution, recognising of course that the welfare of the child is paramount.

Finally, I should like to touch briefly on the issue of enforcement of contact orders. The problem of the resident parent who refuses to allow the other parent to see the child is a real and significant one. It works both ways but is most obvious when the resident parent is the mother. It is crucial that the court should resolve at an early stage whether the opposition of the resident parent is justified, e.g. violence by the other partner, or not justified. The arrival of the stepparent is a further and not always welcome complication.

It is, in my view, particularly apposite to look again at contact since organisations representing fathers are becoming increasingly vocal about the way they consider they are unfairly treated by the family courts.

The Australian legislation set out in the consultation paper deserves careful consideration.

The new regime will have three phases:

1. In the first, the obligations on both parties created by an order are set out, together with the penalties that will be occurred on breach of any of these obligations. At this stage information will also be provided to the parties about parenting programmes to assist them in their new parental responsibilities.

2. If the first order is breached the court can require the parent to attend a "post separation parenting programme", which may involve anger management, to explore the reasons for non-compliance. Compensatory contact may also be ordered.

 

 

 

 

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Regents Park Conference, Nov 2001

Butler-Sloss's speech (abridged)

Summary

Looking back, it is difficult to understand how cases of physical and sexual abuse arising in the criminal courts were not equally recognised in the family courts. Domestic violence has been defined as:

Domestic violence covers a wide range of unacceptable behaviour within the family and may take many forms. Violence is a form of emotional or psychological abuse as well as physical assault. Violence by one partner towards the other has, however, been a well-known feature in the criminal courts, particularly the magistrates' courts. Women's refuges have now opened all over the country and there is a national organisation entitled `Refuge' founded to assist women and children who are victims of violence. Marital conflict and family violence has been the subject of an increasing number of medical papers and publications. The Official Solicitor, at our request, provided the Court of Appeal with a joint report from Dr Sturge and Dr Glaser, both distinguished child psychiatrists. In 1999, the Lord Chancellor invited the Children Act Sub-Committee of the Advisory Board on Family Law to look at the effect of domestic violence on applications for contact by the non-resident parent. The Sub-Committee issued a Consultation Paper on `Contact between children and violent parent: the question of parental contact in cases where there is domestic violence'. We need to tap in to the increasing knowledge of the effect of violence within the family upon the children. The breakdown of the relationship between the parents is a known factor in problems displayed by children. a) the extent of the violence

Where violence has been alleged, it will be a matter for the court to decide whether, if proved, that violence would be relevant to the issue of contact. As the Court of Appeal pointed out in re L and others, there is, and there should be, no automatic presumption against contact in a case where domestic violence has been established. If violence is or has been a problem the effects of that violence may cause future problems with contact. An important consideration, when considering if the fact of domestic violence is relevant to the issue of contact, is the effect upon the primary carer of the violence after the separation. Many victims of violence remain afraid of their former partners and that fear is obviously communicated to the child, not necessarily by the parent telling the child of his/her fear.

As in other areas of family law where children are concerned, the stability of the placement for the child is of crucial importance since its breakdown, or the undue fragility of the primary carer, can have serious consequences for the child. In serious cases of violence, if contact is to take place, it may be necessary to provide safeguards under Part IV of the Family Law Act 1996.

c) the effect upon the child

The courts may not have always sufficiently taken into account the ongoing consequences for the child of contact with a non-resident parent who has been seriously physically or psychologically violent towards the primary carer. Dr Sturge and Dr Glaser, in their report to the Court of Appeal, reminded us all that domestic violence in a family where there are children is a significant failure of parenting. Judges in private family law cases in particular should have this in mind when considering an application for contact where there have been allegations or findings of domestic violence. Once the court has found proved violence which is significant and relevant to the disposal of the case, the court must not only consider the effects of that violence on the child and the primary carer, but should also consider the response of the perpetrator of the violence.

In that appeal, on the issue of contact, the judge in the lower court found the mother's opposition to contact to be reasonable and that her fear of him was genuine and based on actual violence and that T would in time witness violence. Mr Justice Wall set out in re M (Contact: Violent Parent) [1999] 2 FLR 321, the importance of the violent parent understanding the consequences of the violence and consideration being given by the court to his/her capacity and genuine desire to change. A practical point is the importance of early recognition that the issue of domestic violence may be relevant in a particular case. An application for interim contact may require careful consideration. If the court decides that interim contact is appropriate, it will have to consider how contact will take place and whether precautions need to be taken. As a patron of the National Association of Child Contact Centres, I should at this stage put in a plea for the contact centres all round the country. It does well to remember at this stage that such forms of contact are not themselves without risk to the child. As the Court of Appeal pointed out in Re L (above), supervised contact or contact only at a contact centre is not an appropriate long-term solution to contact issues. In Re M, one of the four appeals in that case, the child was born after the parents separated amidst allegations of violence made by the mother against the father. No effort was made to move the contact on from supervision by the mother in the contact centre. Attempts were made to restart contact. The child was taken to the contact centre but he refused to see his father. Where serious allegations are made Courts and reporting officers have to be very careful not to disclose the address of the primary carer and child.

The courts naturally start with the view that in most cases contact between the child and the non-resident parent is desirable both for the child and for the parent. As many of you will know, the Children Act Sub-Committee of the Lord Chancellor's Department issued a Consultation Paper in March of this year entitled Making Contact Work, The Facilitation of Arrangements for Contact Between Children and their Non Residential Parents; and the Enforcement of Court Orders for Contact. This consultation paper is a most helpful contribution to an enormously important and increasingly sensitive issue between separated parents with children. The problem of the resident parent who refuses to allow the other parent to see the child is a real and significant one. If the refusal to allow contact or the frustration of effective contact is not justified, a further problem arises as to whether the child still wishes to see the other parent or shares the stance of the resident parent. Compensatory contact may also be ordered.

END - 25% summary [ approx. 1,000 words ]