By Sophie Howes, Research Consultant, Centre for Women’s Justice

Introduction

Those working in the field of violence against women and girls are primarily focused on the state’s duties to protect, prevent and investigate crimes of violence perpetrated against women and girls. We often refer to the horrendous statistic that on average three women a fortnight die at the hands of their violent partners.

There are also a small number of cases each year that deserve our attention, in which women kill their abusive partners. This research sets out to explore the extent to which women who kill are also victims and why, despite this, so many are convicted of murder.

This article sets out some selected findings from our research, which charts women’s treatment throughout the criminal justice process and considers what needs to change.

Prevalence

To explore the experiences of women who have killed within the criminal justice system, we used a variety of sources. Most notably, as well as speaking to lawyers and other practitioners with experience of these cases, the research team spoke to women directly.

Women rarely kill, and when they do it is often in circumstances involving abuse. Over a ten year period, 108 men were killed by female partners/ex-partners, in stark contrast to the 840 women killed by male partners/ex-partners during the same period. Our research looked at a subset of these 108 cases and found evidence of abuse in 77% of these cases.

Criminal justice responses to women as victims of violence

When women do kill, it is often because of failings in the very system that is supposed to protect them. Women told us about how the criminal justice system had failed to protect them.

‘I had this injunction out on him and he was still coming to the house at half one, two, three in the morning. Just wouldn’t stay away and then I’m in the house on my own.’ (Interview 2)

Of the 20 women interviewed as part of the research, just eight had reported the abuse they experienced to the police, and for those who had reported, police responses were often poor, leading to under-reporting when they experienced further violence.

Immediately after the killing

Women told us that they were shocked and traumatised in the period immediately after the killing, and were often unable to comprehend what was happening. Despite this, women are often making key decisions that can have long-term consequences for their legal case, for example, whether or not to speak in police interview, or who their lawyer is going to be. The impact of these decisions can be difficult to change at a later date.

Preparing for trial

For those cases that go to trial, building a strong defence that contextualises a woman’s actions in her past experiences of abuse is essential. However, this relies on a number of factors that were too often absent from the cases included in our study. Firstly, lawyers having a good understanding of violence against women is crucial so they can build a trusting relationship with women and facilitate their disclosure of abuse. This should include not just physical acts of violence, but the range of abuse women experience, including sexual abuse and coercive control.

‘I understand the dynamics of domestic violence and how it starts, that it’s not about the first time he hits her but what happened way before this… if you don’t understand this, you won’t realise that information that the woman is telling you, or witnesses are telling you, that they might think is insignificant, is actually really important. Building up a picture of abuse for the jury involves the incidences of coercive control that might seem minor on their own. If you don’t understand VAWG, you won’t see this as a lawyer.’ (Lawyer interview 3)

For lawyers to explore this full history with women takes time, however many of the lawyers who participated in our research told us this is very difficult within the constraints of legal aid funding and the limited time they have to spend with clients.

The trial

In addition to supporting women to disclose abuse, lawyers must also prepare women for presenting evidence of that abuse at trial. A woman’s testimony is often key to the outcome of her case, however women told us that giving evidence at trial was traumatic and many were unable to talk about the abuse in full.

‘During the trial I didn’t want to talk about when the relationship was bad. His family were all there and I didn’t want to properly address what he was in front of his family. In the forefront of my mind I knew I’d murdered him and that was enough. I didn’t want to be embarrassed saying what he’d done to me.’ (Interview 9).

Even when women feel able to talk about the abuse they have experienced, and lawyers present this evidence effectively in court, other key players in the trial process, such as the judge, jury, and prosecuting lawyers, must also have an understanding of violence against women. Often this is lacking, which leads to women experiencing further barriers to a just outcome. Common hurdles identified by our research included judges concluding that ‘she gave as good as she got’ (i.e. the violence was equal), or the use of myths and stereotypes to undermine her experience of abuse (for example, stereotypes regarding how a victim of domestic violence should behave).

Post-conviction

Our research found that the vast majority of women who kill are convicted of either murder or manslaughter. Just 6% of the cases included in our study resulted in women being acquitted on the grounds of self-defence. As a result, women are often serving long sentences for crimes that arguably would not be seen as such, if they had occurred outside the context of intimate partner relationships, including defending yourself from serious physical attack. Once women are convicted, the chance of a successful appeal is extremely slim.  Women are then caught up in a prison system designed for men that fails to recognise their dual status as both victim and perpetrator.

Improving outcomes for women

At the Centre for Women’s Justice, we are determined to use our research findings to try and secure meaningful change within the criminal justice system that will help women in these cases. The challenges identified in this article can be overcome if there is the will to do so. Some challenges require system change; by increasing understanding of violence against women across different criminal justice agencies and tackling misogyny and victim blaming.

Other challenges can be overcome by improving practice, for example individual lawyers can take steps to improve their own understanding of violence against women which will help facilitate disclosure of abuse. Further legal reform would also help, including legislation to replicate the householder defence for survivors acting in self-defence against their abuser.

Our research demonstrates that, despite some tweaking around the edges in recent years, there is more work to be done to improve the law, the system, and individual practice to help improve justice outcomes for women in these cases.

To explore the research in full please go to: https://www.centreforwomensjustice.org.uk/women-who-kill

[1] There was little or no information in the public domain about the remaining 16 cases.

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A Safe blog by Gill Hague, Professor Emerita of Violence Against Women Studies

Women’s Aid and the services in the present domestic violence sector arose originally out of pioneering women’s activism, fighting for social change. The direct connection from today back to the movement against violence against women of the 1970s is one which is sometimes now forgotten. Some present-day domestic violence workers know little of the redoubtable feminist heritage on which their work was founded.

A new book published on May 26th 2021 records the history of the women’s liberation movement and the movement against domestic violence specifically, in this and other countries. The book features input from Women’s Aid and charts the struggle to take on domestic violence, and to set up refuges, reflecting on their early concerns, passions and politics. Now refuges are commonplace, even though facing cutbacks and fragile funding, but back at the beginning they were entirely new to everyone. No-one had seen anything like them before.

The book is called History and Memories of the Domestic Violence Movement: We’ve come further than you think. It records the dynamic history we all made while many of the older activists from the early days are still here. Charting the movements against domestic abuse and for the liberation of women, the book is non-academic and contains anecdotes, some memoir, testimonies from survivors and interviews. It is illustrated with a few poems.

Ideally, this would have been a collectively written account. However, that has not been forthcoming as yet. Meanwhile, this book was coordinated and written by myself, but so many activists from the early years and later were willing to contribute that it has become at least the beginning of a collective effort to record our history.

The great mobilisation of women

It was the women’s liberation movement from about 1970 that led the way. The book celebrates everything that the activists made and continue to make, as in the famous quote:

“The great mobilisation of women began with a vision, supported by action. The vision was of a world transformed. “

(Dobash, R. E. and Dobash, R., 1992)

Full of zeal and passion, the movement quickly took up the cause of men’s violence, moving forward with verve, campaigning for change and beginning the setting up of refuges. A coordinating network was established, initially in 1974, as the National Women’s Aid Federation. This later split into the four federations, one for each of the UK countries.

The federations coordinated the nascent network of projects which were beginning to appear all over the UK, most of them established after endless, dedicated work by collectives of women, working unpaid. Since then, Women’s Aid and the domestic violence movement have continued without pause to support and empower women and children experiencing violence, often transforming the lives of survivors, and attempting to both campaign for abused women and to develop culturally-specific, culturally-sensitive responses taking on equality and diversity issues. 

The first brave initiatives started out on an unknown path

Looking back, the original refuges of the domestic violence movement were quite revolutionary. And women trying to get away from domestic violence immediately arrived at these previously-unknown and brand-new projects. Immediately. They threw their fates to the winds to try to get help. These were acts of almost unimaginable courage at the time.

The new women’s initiatives confronted in clearly visible ways men’s rights and power within the family and society. Not only were women walking out of their marriages and relationships as soon as they found there was somewhere safe to go. They were then going to live with groups of other women. The very fabric of marriage and relations between men and women was being bravely challenged in a quite brazen way. The establishing of refuges was, and is, without doubt, something to celebrate. This short book is part of honouring the women involved and the pure audacity of it, at its beginning.

Radical early politics

The radical early politics of refuges are revisited in the book so that we can perhaps learn from them today. Refuges always tried to do things differently. They mainly operated as collectives for twenty or thirty years, until the move to domestic violence organisations having CEOs developed around the 2000s. Being a collective is a brave and extremely challenging way to work, especially while dealing with something as traumatic as domestic abuse. The women concerned worked out innovative ways of doing this. One way was to try to break down power differences between the women providing the services and those using them. Some of these policies have been lost today, but they involved the women in the refuge being members of the collective, and being involved in decision-making at both local and national levels in Women’s Aid.  These were brave and pioneering moves forward to flatten hierarchies and share power. They transformed the lives of many (although of course not all) women and children.

Challenges as time went on

The book discussed the later challenges mounted by Black and minoritised women who recognised that the developing movement was not addressing the intersectional barriers they faced. As a result, the independent Black Women’s Movement developed services and social action, sometimes working within Women’s Aid and the wider movement, and sometimes separately. Leading the way were organisations like Southall Black Sisters, the London Black Women’s Project, the Asian Women’s Resource Centre, Brent, the network of projects provided by and for South Asian women across the UK countries, and pioneering developments in Scotland and Wales. However, many Black and minoritised women’s projects still face discrimination today and have been disproportionately affected by the cutbacks and lack of funding since 2010, as recorded by Imkaan, Women’s Aid and others.

Changing the world

The book starts in the early days but then records developments to date within Women’s Aid, charting its 50-year history. It also reflects on the now wide-ranging domestic violence and abuse sector in the UK, including attention to organisations like Refuge, SaveLives, Ava, Solace and inter-agency initiatives and consortiums. It charts the rape crisis and sexual violence movement, and the campaigns and service development around ‘honour’-based violence, FGM and forced marriage. And it records the struggles, in later years, around funding and the development of competitive commissioning frameworks.

The book reflects on the present emphasis on risk above all else, and the tendency towards ‘empire-building’ in some domestic violence and housing services. The coverage of the movements internationally includes looking at different attitudes to refuge provision in some parts of the global south, and the development of trans-national feminist joint projects which attempt to avoid dominance from the west. The book also addresses legal frameworks, activist campaigning, policy and strategy development, and the evolution of activist-oriented feminist research.

Conclusion

The emphasis throughout the book is on what the activists did, our triumphs, victories, inadequacies and defeats – but mainly on the fact that, even though domestic abuse by men continues to occur almost universally, the transformations have been massive since the early days.  The movements against domestic abuse have changed the world in terms of support, campaigns, services, policies and awareness, despite cutbacks and backlashes. The landscape is unrecognisable to what went before in the 1950s/1960s. We have indeed come far in this huge and brave endeavour to take on male violence.

The cover and dedication of the book

 The book is dedicated to survivors of violence and to the inspiring activists all over the world who have fought for so long, many of whom the author has had the honour of working with. The cover features a ‘zapatos rojos’ protest held in Mexico City, on International Women’s Day, 2020. Each shoe, coloured red for blood, represents a woman killed. This huge demonstration was partially dedicated to Ingrid Escamilla Vargas. In February 2020, she was murdered, and mutilated in horrific ways, too distressing to talk about, by her husband.

The book is also dedicated to her memory.

Perhaps we can all take forward work challenging violence against women and girls in the name of Ingrid Escamilla Vargas.

Gill Hague, Professor Emerita of Violence Against Women StudiesCommentators on the book include Pragna Patel of Southall Black Sisters, the ground-breaking Black women’s organisation established in 1979.  She states, “Gill Hague’s marvellous book maps a critical period of feminist struggles in the UK, capturing their diversity, vision, passion, creativity and energy… If we are to defend the gains that have been made and build on them in future struggles for women’s liberation and wider social justice, we must know what came before us. A must-read.”

Publication and event details

The book is published by Policy Press on May 26^th.  It can be ordered at: History and Memories of the Domestic Violence Movement: We’ve Come Further Than You Think with 20% discount from Policy Press.

Events planned, some through Women’s Aid (England), include a presentation at National Conference.  There are podcasts from Filia and Policy Press, blogs from Filia and others, articles, zooms and conference presentations, nationally and internationally.  A zoom event on collective working held by the Women’s Resource Centre features the book on June 10th.  Two face-to-face (and zoom) events are planned as celebrations of the violence against women movement, featuring the book with contributions from Gill.  One is planned in Bristol on September 30^th, featuring Rebecca and Russell Dobash, Nicola Harwin (previous long-term CEO of Women’s Aid (England), Ravi Thiara, Marianne Hester and others.  The second, organised by CWASU, is planned in London on October 1^st, featuring Pragna Patel, Sarbjit Ganger Liz Kelly and others.

References

Dobash, R. E. and Dobash, R. (1992) Women, Violence and Social Change, London: Routledge.

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A Safe blog by Jenny Birchall, Senior Research and Policy Officer at Women’s Aid

Over the last few years, the terms “parental alienation” and “alienating behaviour” have been used more and more – in the family courts, in children’s social work, on social media, and even in debates about the new domestic abuse bill.

But why is “alienation” such a dangerous term when it comes to domestic abuse?

While there are no robust empirical studies to back up the concept of “parental alienation”, and no reliable data on its prevalence,[i] there is, as Adrienne Barnett discusses in our Safe blog, a growing, and increasingly robust evidence base demonstrating the ways that allegations of alienation are used in the family courts to rebut, obscure and distract from allegations of domestic abuse. Put simply, when mothers raise concerns about whether contact between a perpetrator of domestic abuse and a child is safe, they are accused of attempting to “alienate” the child from the father. They are also accused of making false allegations of domestic or child abuse. Devastatingly, the results can be that children are forced into unsafe child contact with an abusive parent, or even removed from loving parents and placed with perpetrators of abuse.

“The treatment I’ve had is very cruel. I’ve been punished for speaking about abuse, and I had my children used as a punishment. It’s horrifically painful to have your children taken in any circumstances, like going through a bereavement but they’re still alive. You don’t know how you can still exist. It’s as though we have no rights. We’ve been silenced” (Survivor’s testimony, 2018).

At Women’s Aid, we are hearing these stories more and more frequently. In 2018 we conducted research with Queen Mary University of London on domestic abuse and the family courts. The majority of survivors taking part in the project had either been accused of some form of “alienating behaviour”, or were worried that they would be, as they tried to negotiate safe child contact for their children. Most disturbingly, several of the women had lost all access to their children as a result of parental alienation allegations made by their abusive former partner.

“He denied the allegations and he claimed I was manipulative, bitter. He said it was parental alienation. He used the term a lot – he’s a clever man, he knew what to say, how to act” (Survivor’s testimony, 2018).

“An ‘expert witness’ was chosen by my ex’s solicitor. I later found out he says mothers have ‘false beliefs’ in all these cases, and runs workshops on ‘parental alienation syndrome’. On reading about this I realised this was the tactic used against me and is a catch 22 I had no chance to defend against” (Survivor’s testimony, 2018).

Since we published our research, we continue to hear from women in similar, impossible situations. Below are just a few recent examples from survivors. Unfortunately, these survivor stories are very common scenarios:

After experiencing coercive control, as well as psychological, sexual and financial abuse, one survivor was advised by her GP and IDVA to flee with police support and protection. The case was assessed as high risk and went to MARAC. The survivor had a lot of evidence of the abuse, including police reports, IDVA/MARAC letters, and GP notes. However, when she raised this in the family court, she was accused by the perpetrator and his legal team of “parental alienation”. She was also accused of being mentally unstable. She could not believe it when, at the end of the hearing, it was decided that contact between the children and father should be reinstated as soon as possible.

When one of her children threatened to kill themselves if she was forced to have any more contact with her abusive father, one survivor sought help from social services and the case went to the family court. However, the Cafcass officer’s report did not discuss the father’s abusive behaviour, or reflect the concerns and fears of the survivor and her daughter. Instead, it accused the survivor of “parental alienation”. The court agreed, and all were ordered to have therapy together.

Last year the Ministry of Justice expert panel’s report identified the detrimental effects of the “pro-contact” culture of the family courts, which sits alongside a culture of disbelief and victim-blaming around domestic abuse. One of the results of these interrelated cultures and beliefs is that there is so much focus on children having contact with both parents, that valid concerns about domestic abuse and child safety are minimised and put aside. The concept of “parental alienation” is one of the tools used to do this. The examples below show how this happens.

One survivor was taken to the family court by her perpetrator after he had been convicted of assault against her. She had also made complaints of rape against him. Despite the fact that the children had seen the assault and the rape, and the involvement of Children’s Services, the perpetrator was assessed as no risk to the children. The survivor pleaded with the court not to allow unsupervised access, especially as the perpetrator had a new girlfriend and the children were likely to witness and experience domestic abuse again. However, the judge ruled that the survivor was putting her own anxiety and fears onto the children, and that this was deemed parental alienation. The judge ruled that the children should be removed and placed in the care of the perpetrator. The survivor was only allowed minimal supervised contact with her children.

We also hear from survivors who have been accused of “parental alienation” after raising not only domestic abuse against themselves, but also serious abuse against their children.

Another survivor explained how, after she fled from her perpetrator, he made an application to the family court for child contact. Despite the fact that the police had been called due to domestic abuse, and Children’s Services had previously been involved with the family due to allegations that the father was sexually abusing his young child, the family court judge refused to allow a fact hearing to take place. The judge viewed the survivor’s concerns about her child’s safety as “parental alienation”. They ordered unsupervised, overnight contact and the survivor was instructed to make her child available.

After each court-ordered stay the child was left with bruising and injuries/soreness in their genital areas. The survivor again raised her concerns with the court but was ordered to not make any further allegations either to the court or any other professional. She was again was accused of parental alienation and as having mental health issues, despite the fact that she had never been assessed for or diagnosed with any mental health problems.

Finally, after irrefutable evidence of child abuse emerged, the perpetrator was arrested. A new application to the court was made in order to vary the order and stop unsupervised contact.

The concept of parental alienation is not only being used within the family court system. Worryingly, it has crept into debates around the domestic abuse bill – as members of the House of Lords have tried to include it in the first-ever statutory definition of domestic abuse in this new law. Whilst the government has rejected these calls, there is still a real risk that the phrase “alienating behaviours” will end up in guidance underpinning the bill. This risks legitimising a concept that is not rooted in any robust evidence, but which has devastating impacts on women and children experiencing abuse.

The voices of survivors clearly show why concepts around “alienation” are so dangerous in cases involving domestic abuse. Before accepting any of these concepts, all professionals involved in making decisions about child contact, and decision makers establishing legislation, policy and guidance, must be aware of the dangerous and horrific consequences that occur when domestic abuse allegations are met with those of parental alienation.[i] Doughty, J., Maxwell, N. and Slater, T. (2020) ‘Professional responses to ‘parental alienation’: research-informed practice’ in Journal of Social Welfare and Family Law 42(1); Meier, J. (2013) Parental alienation syndrome and parental alienation: A research review. National Online Resource Center on Violence Against Women

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Dr Adrienne Barnett writes our first guest post for Safe, our new online research blog. She explores how claims of parental alienation in the family courts are being used as means to silence victims of domestic abuse.

Published: 28th April 2020

Dr Adrienne Barnett is a Senior Lecturer in Law at Brunel University London. Prior to commencing in full time academia at Brunel Law School in January 2014, Adrienne practised as a barrister in London for over 30 years, specialising in Family Law. Her specialist area of research is private family law cases where domestic abuse is an issue on which she has published widely over the past 20 years. More recently she has been researching parental alienation in the UK. Adrienne was commissioned to prepare the literature review for the Ministry of Justice’s 2019 inquiry into risks of harm in family court proceedings and has undertaken training for the judiciary and professionals on Practice Direction 12J. She is a member of the Advisory Group of Rights of Women and of Women’s Aid’s Expert Advisory Group to the ‘Child First’ campaign, and is an academic adviser to the Association of Lawyers for Children.

Maria struggled for years to cope with her husband, Paul’s, abusive behaviour. She finally summoned the courage to leave Paul when he hit their son, Carlos, aged 8, with a belt. A social worker helped Maria and Carlos to find alternative accommodation, and warned Maria in no uncertain terms not to allow Carlos anywhere near Paul. Maria and Carlos saw Paul one day when shopping, and Carlos was so terrified he wet himself. Paul applied to the family court for contact with Carlos, denied everything Maria said about him, and claimed that Maria was ‘brainwashing’ Carlos into being scared of him. To Maria’s horror, she found herself accused of parental alienation. She was warned by the court, by Cafcass, and by her own barrister that if she did not allow Carlos to have contact with Paul she faced losing residence of Carlos to Paul.

Maria is not a real woman. She is thousands of women who flee abusive men to protect themselves and their children, and find themselves accused of parental alienation if they raise allegations of domestic abuse when their abusers apply for contact, with a real prospect of losing custody of their children to their abuser if they oppose or restrict contact. Parental alienation is a concept that is proving more powerful than any other in silencing the voices of women and children resisting contact with abusive men. It fits in neatly with, and is underpinned by, the ‘contact at all costs’ culture of the family courts and the heavy emphasis on co-parenting.

So, what is parental alienation (PA)? That question has a rather circular answer. PA has no official or accepted definition but has come to be understood as being what its proponents say it is. This can be summarised as the unreasonable rejection of a non-custodial parent by a child as a result of the manipulation of the child by the custodial parent. The aim is, intentionally or unintentionally, to exclude the non-custodial parent from the child’s life.

There is little, if any, credible scientific support for the theory of PA. An earlier version of the theory, proposed by US child psychiatrist Richard Gardner (parental alienation syndrome – PAS) resulted in family courts in the USA removing numerous children from the primary care of protective mothers during the 1980s (Neilson, 2018).

Attempts were made in a number of jurisdictions internationally to disseminate Gardner’s theory. In England and Wales in the 1990s, Ludwig Lowenstein, a psychologist, supported by fathers’ rights organisations, encouraged courts to remove children from mothers with care on the basis of alleged PAS. He was discredited as an expert witness by the Court of Appeal in the leading case of Re L, V, M, H (2000). In North America as well, the concept was soundly discredited on grounds of gender bias, harm to children, and lack of scientific credibility in the 1990s, after which it fell into disuse. The theory resurfaced in the mid-2000s as parental alienation, without the ‘syndrome’ terminology, which mirrored similar developments in the USA, at a time when the political and legal terrain had become populated with images of ‘implacably hostile’, gatekeeping mothers making false allegations of domestic abuse, during a UK government consultation on ‘making contact work’.

My research into the development and consequences of PA in England and Wales was based on an analysis of all reported and published court judgments in which PA or PAS were raised or referred to, producing a total sample of 40 cases between 2000 and May 2019 (Barnett, 2020). The reported cases cannot provide a representative sample of all such cases, as most child arrangements/contact cases are heard by magistrates or district judges whose decisions are not reported or published. However, they provide some insight into the way in which some trial judges respond to PA and into the attitudes and responses of the higher courts. In January 2020 a workshop to identify and explore issues arising from the use of PA in the family courts was held at Brunel University London, attended by 20 academics, professionals, and stakeholder organisations (PA workshop). The discussion that follows draws on my study and the outcomes of the PA workshop, to explore how PA developed and what its consequences are for parents and children involved in private law family court proceedings in England and Wales.

A common claim in family courts, but without definition or scientific backing

The research found that some judges and professionals are sceptical of PA, others fully sign up to it, but all participants in the system seem to recognise it now as a valid concept, with workshop participants reporting that claims of PA are prolific in private family court cases. However, there is no clarity in the way PA is defined, identified or applied by the family courts and professionals. Additionally, there continues to be no credible scientific backing for the theory of PA (Doughty et al., 2018; Doughty et al., 2020). In 2018 the World Health Organisation (WHO) published its new draft International Classification of Diseases, 11^th Revision (ICD-11) which, until then, had excluded PA. Under pressure from PA proponents, PA was included in the draft ICD-11 as an index term. A robust response to WHO in the form of a collective memo was submitted, which was signed by 352 professional and expert organisations and 764 individual experts and professionals internationally (Collective memo to WHO). Despite fierce opposition to the memo by the PA lobby, in September 2019 WHO clarified that this did not “indicate WHO endorsement or any sort of formal recognition” and that PA “is not a disease or disorder”, contrary to misleading public statements by PA proponents that WHO has recognised PA as a health condition (WHO ICD-11 statement on PA). It is not clear yet whether ‘parental alienation’ will be included as an index term in the final ICD-11.

The emergence and development of PA in England and Wales shows a clear pattern of (initially PAS) and PA being raised in family proceedings in response to concerns about and measures to address domestic abuse. The immediate impetus for the emergence of PAS in England and Wales in the 1990s, it is suggested, was that the judiciary finally woke up to domestic abuse as a result of ground-breaking research by Hester and Radford in 1996, who brought to the attention of courts and policymakers the harmful effects on children of the courts’ and professionals’ promotion of contact between children and violent parents. Again, after a fallow period between 2010 and 2013 when no reported or published cases referring to PA or PAS could be identified, PA re-emerged in the case law in 2013. This coincided with a renewed focus on domestic abuse by policy-makers in response to studies that revealed that Practice Direction 12J (PD12J) was not being implemented properly by the family courts, with domestic abuse being minimised, risk being inadequately assessed and unsafe contact orders being made (Coy et al., 2012; Hunter and Barnett, 2013).

In 2016 PA suddenly leapt into the spotlight. Yet again, this coincided with a renewed focus on the issue of unsafe child contact with perpetrators of domestic abuse. In 2016 Women’s Aid published Nineteen Child Homicides which documented the deaths of 19 children killed by their fathers in the context of contact arrangements between 2005 and 2015, which underpinned its ‘Child First’ campaign (Nineteen Child Homicides). From mid-2016, articles and programmes on PA appeared in the media and the legal press and the issue was debated in Parliament. Much of the focus of these articles was on a new ‘High Conflict Practice Pathway’ devised by Cafcass in 2016, which included measures to address PA.  Cafcass subsequently substituted this in October 2018 with a ‘Child Impact Assessment Framework’ which still aims to address PA but places some emphasis on assessing risk (Child Impact Assessment Framework). The media, PA lawyers and pro-father MPs called for PA to be recognised as child abuse and criminalised. Unsurprisingly, there was a notable resurgence of claims of PA in the case law from 2017, a growing acceptance of such claims, and an increase in the number of PA ‘experts’.

The silencing of domestic abuse victims

This chronology, it is suggested, cogently reveals PA’s intended purpose – to divert attention from and even negate domestic abuse in private family law (Meier, 2017; Meier, 2020). One of the starkest findings of the case review, supported by the experience of the PA workshop participants, was the very high level of domestic abuse and the minimal application or even reference to PD12J in cases in which PA was claimed. In many cases, abuse could be lurking in the background but never determined; or it may have been proved but then glossed over, minimised, or considered too old. Allegations of domestic abuse could even be used as ‘evidence’ of PA (Birchall and Choudhry, 2018). PA workshop participants reported victim/survivors of domestic abuse being discouraged from raising domestic abuse even by their own representatives, for fear of being accused of PA. A linked concern revealed by the case law and the PA workshop discussions is how PA can dominate cases to the exclusion of all else. It has been likened to a ‘silver bullet’ as it becomes the sole focus of courts and professionals when making decisions about children, at the expense of a full analysis and assessment of the child’s best interests.

A significant feature of the recent case law is the increasing number of PA ‘experts’ (child psychologists and psychiatrists) emerging on the scene, who have played a key role in the propagation and success of PA in the family courts. The effect of such experts can be to make the father’s case almost unanswerable (Birchall and Choudhry, 2018). Indeed, once a PA expert is instructed, a diagnosis of PA becomes a self-fulfilling prophecy. Together with an increasing number of family lawyer PA ‘specialists’ who advance PA on behalf of their clients, it could be said that a burgeoning PA industry is on the rise. On the other hand, participants in the PA workshop reported that expertise in domestic abuse is not finding its way into the family courts, and the case law indicated that judges may assume expertise in PA and domestic abuse and make their own (minimising) assessments of risk.

A further problem is that PA marginalises or may even invalidate children’s wishes and feelings. While some judges in the cases reviewed took children’s wishes and feelings very seriously, other judges, encouraged by PA experts, were more than willing to ignore children’s expressed wishes and feelings and attribute them to coaching by mothers (see also Birchall and Choudhry, 2018). These findings were echoed by PA workshop participants’ experiences – of children’s voices not being heard or listened to, and their experiences not understood. Specialist participants reported that this increases children’s powerlessness, can retraumatise them, and can impede work in helping children to heal. Coercing mothers into enforcing contact on children who are resistant to contact and afraid of their fathers can also have a detrimental impact on the mother-child relationship, with mothers having to cope with angry, defiant and distressed children (Coy et al., 2012; Thiara and Gill, 2012).

PA may lead to outcomes in individual cases that are harmful to children, including the enforced removal of children from their primary carers. The case law analysis found that, although transfers of residence were rare (n = 4), the most recent judgments suggest an increased willingness to transfer the care of children from ‘alienating’ resident mothers to non-resident fathers. This is supported by research by Birchall and Choudhry, 2018 who found a high proportion of women who had had their children removed based on accusations of PA, or had lost contact with them. In three of the five cases I reviewed where residence was transferred to fathers, there were indications of violent and/or abusive behaviour by the fathers which had never been tested and were effectively ignored. In two of these cases, children were returned to their mothers mentally and emotionally damaged, and in two others it appeared likely that the fathers were frustrating the mothers’ contact.

A backlash against women’s rights

Finally, one of the most concerning aspects of PA is the clear indication from research and the experiences of the PA workshop participants that PA operates in a gendered manner and is used politically, with strong undertones of a backlash against perceived feminist gains over the past decades. Indeed, the fathers’ rights movement has played a key role in promoting PA in England and Wales (and internationally), and the ‘hostile mother’ discourses that underpin it. However, far from the hostile, obstructive and manipulative image of mothers portrayed in PA discourse, research has found that the vast majority of mothers are supportive of contact between children and non-resident fathers, even in circumstances of domestic abuse, and bend over backwards to ‘make contact work’, with only a small minority of cases being found to involve unjustified refusals of contact (Cafcass and Women’s Aid, 2017; Fortin et al., 2012; Harding and Newnham, 2015; Trinder et al., 2013). Yet the almost impossible demands on mothers are also discounted within PA discourse, and there was very little understanding in some of the reported cases of how difficult it is for a parent who has experienced abusive behaviour to encourage contact with their abuser.

The gendered nature and operation of PA is revealed by the case law analysis, which found that mothers achieved little to no success in achieving transfers of residence or in successfully claiming PA against fathers. In these cases, it was evident that the fathers were abusive and controlling. One of the most successful strategies of the fathers’ rights movement has been the campaign to ‘equalise’ PA between mothers and fathers, when it is like comparing apples and pears. The success of the strategy has been to co-opt into the PA lobby mothers who have experienced fathers’ undermining of the mother-child relationship as part of a strategy of abuse. There is considerable research revealing how perpetrators intentionally try to undermine, distort and disrupt this relationship and turn children against their mothers by demeaning, belittling, criticising and insulting women to and in front of children, encouraging children to participate in the abuse of their mothers and treating children to expensive gifts and days out, which can continue to be perpetrated through child contact (see, eg, Coy et al., 2012; Harne, 2011; Katz, 2016). My concern with mothers trying to demonstrate ‘alienation’ by fathers is that the term, ‘parental alienation’, has become so morally and politically laden that this serves to reinforce the power of the concept in its use against women, rather than for their use and benefit. The ‘alienating’ behaviour of abusive men should, I would suggest, be called out for what it is – a strategy of domestic abuse.

Covid-19 and child contact

The current Covid-19 crisis has a range of serious implications for survivors of domestic abuse. It has been reported to me by numerous survivors of domestic abuse that child arrangements and contact orders are placing them in grave difficulties, causing immense distress. Survivors who are concerned that compliance with current orders will put the health of their children, themselves and their families at risk have been met with abusive non-resident fathers insisting that the orders be strictly adhered to, with threats of enforcement proceedings. Conversely, many women who have lost the care of their children to abusers who have successfully claimed PA, or whose children are currently spending time with abusers under child arrangements orders, have found that fathers are refusing to facilitate contact or return the children even when it is safe to do so. Parents also have to navigate newly instituted procedures for remote hearings, which can be challenging for unrepresented parties. The President of the Family Division has issued Guidance on Compliance with Family Court Child Arrangements Orders. The Guidance encourages parents to agree sensible and safe arrangements if current orders need to be varied on safety and health grounds but states that if agreement cannot be reached and “one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/OHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe” (President’s Guidance on Compliance with Child Arrangements Orders). If the parent’s actions are later questioned in the Family Court, the guidance states that “the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family”. An accessible guide to child contact arrangements in the current Covid-19 crisis, including advice for survivors of domestic abuse, is available from Rights of Women (ROW Guide to Covid-19 and child contact arrangements).

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