Abuse of Domestic Abuse: Why I’ve applied for a Judicial Review of the MoJ’s ‘Risk of Harm’ report. Terry White
My friend Ben and I have applied for a Judicial Review of a government report on domestic abuse. But more than merely a report on domestic abuse, the Ministry of Justice’s “Assessing Risk of Harm to Children and Parents in Private Law Children’s Cases” (including its Literature Review and Implementation Plan and together, the “Report”), is a manifestation of propaganda-driven governance – a corruption of the integrity of our society’s foundational institutions and its philosophies of law and knowledge.
My background is in financing in emerging markets, so I have some expertise in the field of coercive misrepresentation by governments. With the benefit some 25 years of dealing with some of the most hostile, fragile and incompetent jurisdictions in the world, the Report and particularly the Literature Review by Dr Adrienne Barnett was instantly recognisable as an abuse of power of the kind I have seen operate in the Former Soviet Union.
Our application stands between the principles of scientific empirical evidence and a nascent epistemology based on sectarian power relationships and manufactured misinformation – “critical theory”, in this case expressed as “feminist research” and “socio-legal” research. Whereas empirical science seeks to objectively describe the world, a critical theory begins with the researcher deciding what the world ought to be, and creating products to change society to fit. Critical theory assumes that knowledge is a creation of power, and therefore the researcher is not just permitted to subvert facts and mislead, but is morally obliged to do so. The government is stamping the insignia of the State on outrageously incompetent research methods and passing it off to the public as “robust”. It would be naive to hope this practice will be contained to the issue of domestic abuse.
Domestic abuse is not the hill that any sensible person wants to die on. Its very nature is repugnant for ordinary folks and it is all too human to fear social stigma for associating with this evil. However, the arena of battle is not chosen by the defenders. An invading force will seek out the most vulnerable point to attack; and once the battlements have been breached, further defence is largely futile. It is precisely the repugnant nature of the domestic abuse issue that makes it a weakness in the defensive wall of good governance. This is not the hill we want to die on, but no one is asking what we want. This is the hill we have to defend.
The government’s Report relates to private law children’s cases, where mostly two separated parents are in family court contending the arrangements for their children. There are now allegations of domestic abuse made in the majority of private law cases, and the family court is buckling under the weight of these complex cases which can run for years. In most cases where domestic abuse is alleged, the child has no contact with the accused parent until the court is able to deem such contact safe. So in practice guilt is assumed upon accusation, and it is upon the accused to claw their way back into their children’s lives.
Domestic abuse may be categorised in two broad types: direct abuse of one party against another, and lesser-recognised covert abuse – often by means of false allegations – to coerce authorities to undertake the acts of abuse on the abuser’s behalf. Covert abuse is recognised in the Home Office’s Statutory Guidance on Coercive and Controlling behaviour as an “offender tactic” of “vexatious allegations”. Ironically, spurious allegations of domestic abuse in family court have exceptional utility for covert abusers: at once, the resources of government are put at the accuser’s disposal against the accused, who is often unrepresented, and the accused is placed into a shamed, diminished position, his reputation destroyed and isolated from his children. Meanwhile the false accuser is not asked to produce evidence and is protected from consequence, for fear of discouraging genuine disclosures of real abuse. Unscrupulous liars have everything to gain and nothing to lose from making false or wildly exaggerated allegations of domestic abuse in family court.
The judiciary, in their deliberate and meticulous way, have generally been consistent to focus on the welfare needs of the child; to assess firstly whether any of the allegations are even relevant to the child’s welfare and then to insist that accusers substantiate their claims. Consequently, often these claims fall flat and the children’s contact with their parent is restored, but not before significant emotional harm has been wreaked upon the children and the falsely accused. But such outcomes anger feminist activists of the “believe women” persuasion, who argue without valid evidence that this endangers children. So the Lord Chancellor, now a political appointee, set about to use his influence to change the outcomes of private law cases.
In creating its Report, the government eschewed any statistical analysis of real data or expert assessment of the child’s long-term welfare needs. Instead, the authoring ‘Family Justice Panel’ ran its own unverified Twitter-esque poll of disaffected ex-spouses, who seem to have lost their cases when their evidence was tested in court (if indeed, any of them really attended court). And to support this effort, the government made an uncontested appointment of a “feminist” researcher without technical qualifications and with clearly dubious views about empirical science (and indeed, of women), who went about compiling a sham dossier of the scientific literature. “Strong words”, one might say. Read on.
Notably absent from the MoJ’s report on “risk of harm” is any actual assessment of the risk of harm to children. The Report’s focus is overwhelmingly on the feelings of the adult women, and has all but abandoned any pretence to consider the children’s best interests. The overwhelming preponderance of current evidence is that children benefit from joint parental care after separation, even when the parents are antagonistic. However, the government has now moved on to review the statutory presumption that parental involvement is beneficial to children “in order to address its detrimental effects on cases featuring domestic abuse” – without ever actually determining what those detrimental effects are, let alone their extent and proportionality to the benefits of continued contact.
The MoJ’s actual data was never consulted. The Department has unique access to a trove of real, confidential data from family court as well as the probation service and criminal law, it employs a substantial number of seasoned and qualified professional experts and even has an internal statistical office that was not consulted. The government has not confirmed what professional standards governed its Panel of “experts”, but it would seem the lead authors of the Report were not constrained by the Civil Service Code. Despite the intense psychological nature of the subject matter and statistical nature of the endeavour, there was not a single scientist or statistician amongst the Panel. Early promises of “support” from departmental experts, who would be guided and constrained by the Civil Service Code, seem to have gone unfulfilled.
Instead, the Panel generated its own external set of voluntary self-reports from the public with no verification process. The public response rate, at 4 female : 1 male, is necessarily unrepresentative considering these cases almost always involve a mother and a father and there are two sides to every story. These flaws meant that the exercise didn’t even meet the minimal standards for qualitative evidence, let alone achieve any quantitative validity.
The Final Report itself acknowledged that its processes were inadequate to the task assigned to the Panel: “But qualitative evidence alone is not designed to tell us how common or frequent those experiences are. Nor can we tell how representative the submissions are of all court users and professionals. … The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking”
Nonetheless, for the wholly-invalid reason that there was a lot of single-type indicia (i.e. a mob), the Panel continued to make findings and recommendations that were intended to impact the real world. At best, such conduct was reckless and unprofessional. A government department acting in the interests of the public and, in particular, knowing of its potential impact to children, would have stopped the process there and then and consulted a real data set to see whether the indicia it received had any merit. Instead, after it had collected its indicia and conducted its roundtables, the Panel took 8 months to consult undisclosed “key stakeholders” (one can only guess who they may be) – rather than bother the statistical office or any actual experts.
The Panel’s unscientific survey was used within the Final Report itself to shutdown contrary views from the expert roundtables. But sometimes, the authors’ eagerness to control the narrative was so overwhelming that they didn’t back themselves up at all. When the judiciary roundtable reported frustration that the rehabilitation programs for perpetrators (‘DAPPs’) were “too monolithic”, the report authors took it upon themselves to simply rebut the claim, without any source or professional expertise. This officious equivalent to “Because shut up, that’s why!” is potentially dangerous: there is evidence that poorly-attuned interventions can increase domestic violence recidivism. It is insufficient to merely conduct professional roundtables, the Panel was entrusted to engage with what it heard.
There are too many instances of dubious professional conduct in the Report to cover in a small article, but most striking to me, with my knowledge of how unscrupulous governments operate, was the deliberate alteration of language to conflate alleged and actual perpetrators. Across 400 pages of documents, one might not think it would be too much effort to include the word “alleged” where the facts have not been determined. Indeed, “perpetrator” even describes instances where the courts have found the allegations unproved after examining the evidence. It makes for far scarier conclusions in the Report, such as:
“some form of direct contact between children and perpetrators of domestic abuse was ordered in the great majority of all private law cases”
‘How outrageous! We must act now to save the little kiddies!’ one hears from the public gallery. Except the more accurate description of those same facts, sans linguistic duplicity, would have been:
“in the great majority of private law cases, upon examination the court determined that domestic abuse allegations were either totally unfounded or insufficient to prevent direct contact.”
That provides quite a different understanding of what is happening and what are the risks to the children. One must ask who benefits from feeding such calculated misinformation to law-makers, social workers and the judiciary, for it is not for the benefit of the children.
But perhaps the most scandalous output was the Literature Review. The panel appointed Dr Adrienne Barnett to author it, presumably taking into account the irrelevance of her PhD in law and English Literature degree to issues of profound and complex child-developmental psychology. A Freedom of Information request into this appointment has revealed that there was no selection criteria and no other candidates considered. It would seem that she was chosen only for her relationship with the panel authors and her pre-existing views, such as those expressed in her video-ed speeches and her PhD thesis:
“The norms of science perpetuate and disguise the myth of superiority of men over women”;
“Feminist research is political in nature, it seeks to change society not just understand it”;
“Knowledge production must be useful to women and instrumental to improving women’s lives”;
“’Universal’ ‘objective’ knowledge is masculine knowledge”;
“’objectivity is simply a form of male subjectivity’”; “objectivity is an undesirable goal”;
“quantitative research is based on and validates the ‘masculinist’ values of neutrality and ‘objective detachment’”;
“in order to regain a valid and authoritative voice for women in current family law we need to expose and disrupt law’s construction of the ‘scientific truth’ about children’s welfare”;
“concepts of rationality, impartiality and objectivity are historically specific and contingent generalisations embodying dominant (masculinist) values which, in the process, devalue those attributes attributed to ‘the feminine’, such as emotions”
Victorian sexism once told us that women were not objective, and now Dr Barnett’s “feminism” tells us that women are irrational, emotive creatures. How times have changed.
On 11 August 2020 the Lord Chancellor wrote to the Right Honourable Sir David Evennett MP claiming that the Literature Review had been subject to “a thorough quality assurance process”. No Quality Assurance report has been produced and this claim has to be met with incredulity. The Literature Review covers some of the most contentious topics in family law today, yet cites not a single source that did not (purportedly) align with the author’s conclusions.
Further Dr Barnett misapplies the sources that she does reference. For instance she says: “Hunter and Barnett (2013) noted that whenever objective efforts are made at quantifying ‘false allegations’ of domestic abuse, the proportion of unfounded allegations turns out to be very small. Allen and Brinig (2011) found not only that ‘false’ allegations in divorce proceedings (including in applications for protective injunctions) constituted only a very small proportion of domestic violence claims, but that the ratio of men to women making false claims was 4:1.”
Hunter and Barnett (2013) is indeed Rosemary Hunter (an author of the Final Report and panel member) and Adrienne Barnett herself. Far from “whenever objective efforts are made”, their paper referred to only the single source for its assertion: that same Allen and Brinig (2011) study that is referenced in the Literature Review. It is from Oregon, USA and is concerned with the effect of a new joint custody law. Neither Hunter or Barnett have any special understanding of Oregon law, and fail to explain why, despite the UK’s overall domestic abuse incidence rate being less than two-thirds that of Oregon, domestic abuse allegations in UK Children’s law cases is between two and three times as prevalent than in Oregon’s custody courts. That alone would indicate that false allegations are rife in the UK’s family courts.
Further, the A&B study problematically defines “false claims” as allegations that did not result in a protective injunction, ignoring that up to 81% of protective injunctions in the USA have been found to be “unnecessary or false”. Famously, an injunction was briefly imposed on David Letterman for beaming covert messages by television to a woman he had never met. If Dr Barnett’s adopted definition of “false claim” were applied to the UK, the proportion of “false claims” in private law Children’s cases would be approaching 100%. This definition also explains Dr Barnett’s extraordinary assertion that “the ratio of men to women making false claims was 4:1”, which really only means that protective injunctions are refused four times more often when the complainant is male – most likely because the courts assume a male victim can defend himself without the court’s intervention.
Dr Barnett either does not have the technical wherewithal to understand the papers she is reading or she deliberately misleads. Given her bizarre philosophies about research and science, and that she proudly proclaimed to a conference in Bahrain that ‘gendered subjectivity’ “was really important in the work I have undertaken on domestic abuse in private law cases”, one may easily conclude the latter. On the other hand, she is substantially under-qualified to undertake this work, so perhaps she deserves the benefit of the doubt about her motives.
On the basis of this wholly-underwhelming Report, the government is seeking to change the “culture and beliefs” of the family justice system from what it calls a “pro-contact culture” to an undefined different culture (presumably, “anti-contact”). Our main contention is that, when the State is seeking to interfere in the relationships between parents and children, it has a special duty to undertake a diligent and professional assessment of risk and benefits. The Report is neither diligent or professional.
In January 2021, the Report was cited both in the House of Lords and the Court of Appeal to effect real outcomes in judicial decisions and in forming legislation, as if it were something with a shred of technical credibility. But there has been no mention in these proceedings that even the authors admit the Report’s information base is flawed and unrepresentative.
Not that one reads about it in a government report ostensibly assessing risk of harm from domestic abuse, but the good news for us ordinary people is that domestic violence of the stereotypical wife-beating-drunkard kind is very much waning in a long-term downward trend.
Our society has now migrated to the broader term ‘domestic abuse’, which has instantaneously transformed the 269 thousand incidents of domestic violence in the year to 31 March 2019 to “an estimated” 2.4 million victims of domestic abuse for the same period. Even so, the government had to admit even this expanded measure was also waning in the UK population: “The prevalence of domestic abuse has reduced from 8.9% in the year ending March 2005 to 6.3% in the year ending March 2019; this indicates a gradual, longer term downward trend.” The March 2020 figure was 4.5% – half that of 2005.
Meanwhile, the Family Court is buckling under an unprecedented number of allegations of domestic abuse. There is clearly some other factor affecting domestic abuse allegations made in private law children’s cases. In about two thirds of cases involving abuse, both parents are abusive to each-other to varying degrees, and the children are collateral damage in an ongoing inter-parental war. It is essential to the protection of children that our courts can quickly and effectively determine false, exaggerated or irrelevant allegations of domestic abuse in order to minimise harm to the child from covert abusers.
Our application for Judicial Review is languishing on the issue of amenability – whether the court should look at it at all – because the Report doesn’t have direct legal effect. The misleading conduct under the banner of government is without doubt an abuse of power, and it is having actual legal effect in the Court of Appeal and House of Lords, so there seems no better forum than Judicial Review. A deep forensic examination is required to look past the shiny paint and luxurious upholstery of the Report, pop the hood and inspect the engine bay. Because there is nothing there but a dead mule and that’s where the smell is coming from.