Last month I spent three days in the Court of Appeal live-tweeting the first conjoined domestic abuse appeal #DAAppeal for twenty years. Others have written up the detail of the appeals and the calls for systemic change so I’ve focused on four brief reflections as someone who is unfamiliar with the Family Court. I’ve never attended a single hearing.

This conjoined appeal was heard over two full days and one half day and related to four separate cases. Four women were appealing decisions of circuit judges in the Family Court. All four cases involved allegations of domestic abuse including rape. None of the first instance judges had made any findings of abuse.

Which brings me to my first reflection, language.

I wonder how often those working in the court system reflect on their language, and the distancing effect of it. In this hearing I felt the President of the Family Division went out of his way to explain things, and ensure it was possible for those in attendance (over 100 at most sessions) to follow proceedings. That in itself does not stop the language in use being noteworthy.

The three days were full of “my learned friend”, “learned junior”, “learned judge”… I simply do not see what “learned” prefix adds; worse, I believe it may be positively unhelpful. To my mind there is a risk of othering and ableism in this use of language – which I’m sure is seen as entirely unremarkable by those within the system. However it feels quite clear to those of us without legal training that, by implication, we’re not considered learned in anything. I can’t help wondering how this language must feel to someone who has had to lay their lives open to the court to try and protect themselves and their children from domestic abuse. When one is feeling vulnerable anyway it must be disconcerting to have the court stressing the learning and expertise of the professionals; there is no similar linguistic acknowledgement for the parties’ skills, knowledge and expertise in the matter of their own lives. They, as parties, and we, as the public, are being talked down to.

We also learned about the language used by the Circuit Judges whose decisions were being appealed, HHJ Tolson (the judge in two of the cases under appeal), HHJ Evans-Gordon and HHJ Scarratt (one case each). The transcripts of the earlier cases were not available to us but the highlights, or more accurately the lowlights, were shared by counsel on a number of occasions.

The title of this blog, “My view of that, ladies,” was uttered by HHJ Tolson when addressing counsel during one of those fact-finding hearings under appeal – an early indication of a tone and attitude that might be described as outdated and patronising. He also stated that he considered the allegations of domestic violence raised by the mother of H-N to be “insignificant”, considering the real issue to be the mother’s “demons”.

In the case of T, counsel highlighted three extracts from the court transcript:

“seems to me this is a shocking waste of court time”

“you’ve all heard and seen the evidence I’ve heard I’m inviting you to have discussions about it”

“It’s not what one might call the types of domestic abuse that one is normally expected to find facts about.”

These comments were made before the cross-examination of the father and as Prof Jo Delahunty QC, representing the mother in the appeal highlighted, they may very well have had the effect of emboldening him. They certainly had the effect of deflating the mother who felt there was no point continuing, as Delahunty summarised the domestic abuse being alleged;

Prof D: if having a plastic bag over your head…. hands around your neck… anal rape…. is this is not the type of domestic abuse the courts should be discussing, then what is?

— GeorgeJulian (@GeorgeJulian) January 19, 2021

We also heard how this mother was inappropriately and extensively cross-examined about her sexual history in court, leading the judge to assert that she was ‘no shrinking violet’. This, truly, is the type of blatantly value-laden language I had believed we had long left behind. Not in this judge’s court, evidently.

One final example is from the case of B-B. At the start the judges made clear that they’d listened to the audio recording of the hearing. Amanda Weston QC acting for the mother in her submissions highlighted that HHJ Scarratt in an earlier hearing to the one being appealed, but with the same parties, had threatened to have the child in question, known as B-B, taken into care.

Weston reads from the court transcript:

“‘if this goes on the child will be taken into care or adopted’ and in brackets [mother crying].”

The President confirms that you can clearly hear the mother crying on the audio recording. Weston states how she cannot see that Mr Gupta QC, acting for B-B’s father, could object to that being referred to during the appeal.

Fast forward 90 minutes and Gupta does just that as he attempts to minimise the interchange between HHJ Scarratt and the mother. He tries to argue that the mother had the same legal representation throughout and therefore she should have felt secure in court.

He said:

“The same counsel who weathered the storm in March is representing the mother in August… whatever the judge said… whether he was outspoken on the day, he did mention adoption but he was talking about drug use.”

“Outspoken”.

Now there’s an interesting euphemism for a judicial threat to remove into care the child of a woman who has come to a court of law alleging serious domestic abuse and seeking protection for herself and her child.

At this point Lady Justice King sighed loudly and interjected:

LJKing sighs and then interjects: Mr Gupta you're wisely accepting the judge was outspoken, but we have to look this young woman aged 21 or 22 is heard sobbing on a hearing as a judge threatens to have her child taken into care

MrG: yes

— GeorgeJulian (@GeorgeJulian) January 20, 2021

The second point that really struck me was the weaponising of women’s experiences.

Delahunty was representing the mother of a child known as “T” in her appeal against a decision of HHJ Evans-Gordon following a factfinding hearing. She described how the current process when a woman raises concerns of domestic abuse is not fit for purpose, highlighting that there is “no time to develop rapport that goes behind that brutal summary required for protective injunction” with focus instead being on “first incident, last incident and worst incident of abuse.”

The document which Delahunty was referencing is the precursor to the Scott Schedule, a document that lists the allegations made and the respondent’s reply to each of them. The President was keen to point out, “It’s not meant to be a sophisticated legal document, it’s an administrative filtering.”

This was one of many examples where there appears to be a gaping chasm between the intention of court processes and required documentation, and the reality as it is experienced on the ground.

Delahunty described how this documentation becomes the “first arsenal in respondents’ attack to a woman who claims to be victim of abuse”. She described how criticisms are levelled at women if they don’t raise abuse or coercive control at the very earliest opportunity, when time with a legally aided paralegal is likely to be extremely short, and the woman in distress, having had no time to build a trusting relationship with their legal representative. And she pointed out how if a woman later does enter new allegations, she is doubted and blamed for not raising those matters earlier.

Throughout the hearing there were several examples of women’s claims being minimised and the timing of when they made their claims being used against them. This would suggest that the courts, or at least the particular judges under appeal, had a less than sophisticated understanding of domestic abuse or coercive and controlling behaviour, and its effects on a victim.

The third reflection I wanted to make was about the courts having pre-formed views, quickly jumping to conclusions, or even cherry-picking evidence to support a pre-formed view. A number of examples were given but I’ll stick to those in just one of the cases being appealed.

Counsel for H-N’s mother, Mr Hames QC suggested to the judges that HHJ Tolson had clearly made his mind up very early on in the hearing. He illustrated this by quoting from paragraph 5 of Tolson’s judgement, where the judge made a frankly outrageous statement that allegations of non-consensual sex, in the “midst of an otherwise entirely consensual relationship” were “nowadays very common” in child arrangement proceedings.

Hames was at pains to point out how ludicrous and outdated this viewpoint is:

“Reading that paragraph overall… it should not be taken just because a woman has consented to sex in the past she could be taken as consenting always… I’d hope that notion was long consigned to the judicial dustbin.”

The judge’s suggestion was followed three paragraphs later by his repeated suggestion that allegations of domestic abuse were increasingly common. How that might relate to the merits or otherwise of any individual case is a mystery to me.

He then goes on to further impugn the motives of any woman who alleges domestic abuse:

‘I am not making a political point in a judgment where such a comment would have no place when I say that I believe it is necessary to factor in the effects of a system which encourages allegations of domestic abuse. There are very significant advantages to a litigant portraying herself as a victim of serious domestic abuse’.

The judge claims that women are encouraged to make allegations of domestic abuse to secure legal support, “professional sympathy and assistance” from CAFCASS and other agencies. He then added that “special measures in court are put in place merely on the basis of the allegations”. Well, so they are, and so they must be, according to judicial direction, in Practice Direction 12J, for very good and well evidenced reasons.

H-N’s mother’s claim appeared, to my uneducated ears, to be very strong with regards to HHJ Tolson, who it very much appears had read the papers and already decided, up front what he would later find.

My final comment is about furious judges. It was crystal clear throughout the three days in court that the Family Court is under immense pressure. It is a system that is clearly creaking at the seams. One of the very visible consequences of this pressure is the behaviour of judges. Delahunty highlighted how this occurs, as she described what happened in her client’s case:

“The judge comes in furious she’s not been given enough reading time, everyone can sympathise with that”.

And later in the appeal, Weston highlights her confusion as to why HHJ Scarratt was as exasperated as he was in court, saying;

“I’m not clear why the judge was so annoyed, and in his words the case was ‘a shambles’ as it did seem to me there was already a lot of evidence prepared, including statements setting out serious allegations by mother relating to sexual abuse.”

It is not hard to imagine how devastating it must feel to be on the receiving end of the wrath of a judge; when this is at the start of your hearing, how could that not have an impact on your experience, and indeed on your evidence, whether you’re the barrister or a party?

I must, however, contrast the furious judges, and their alienating and judgemental language, with the kindness, humanity and at times humour, of  judges I observed in the Court of Appeal.

At times, I have to say, it felt that the Court of Appeal judges were wildly optimistic, the President commenting on how he hoped some of these prejudices were long past, LJ King proudly explaining what training is available to address the matters in question.

That said, I was mightily impressed by the way in which the President dealt with interruptions from the audience members who had forgotten to mute their mircrophone, alongside the patience shown as counsel attempted to cover ground at breakneck speed. Another surprising moment came when Lady Justice King expressed her gratitude to the audience member who had provided an explanation for an acronym in the chat box, followed by the kindly reminder from the President after lunch that the chat box is not for chatting in.

I learned a lot over the three days we were in court but my take away reflection is how brave the mothers bringing these appeals were, to engage with the system not once, but a second time. Having had their very real concerns and fears, their experiences of rape and abuse not believed, they were prepared to return to court once more, and put their faith in the legal system once again. 

I fail to see how anyone in court could not see that the current system is not fit for purpose. Immediate change is required.