Dangerous mythology: Landmark Court of Appeal case examines domestic abuse

Maya Achan reflects on January’s Court of Appeal hearing, examining the handling of domestic abuse cases, and two decades of entrenched and outdated mythology influencing the approach of the family court.

Between the 19^th and 21^st January 2021, the Court of Appeal examined the issue of domestic abuse for the first time in twenty years. Over three days, Lord Justice MacFarlane, Lady Justice King and Lord Justice Holroyde heard the appeals of four different women, striving to reverse decisions made by the family courts concerning their allegations of rape and coercive control. In essence, this landmark hearing has exposed significant failings of the justice system in safeguarding victims of domestic abuse.

The Court laid out five clear principles which it set to address, including how and when fact-finding hearings should occur, the treatment of marital rape and coercive control, and how Practice Direction 12J should be applied.^[1] Practice Direction 12J is a set of guidelines for the court to follow when determining childcare arrangements for families in which the child has experienced domestic abuse, or when there is risk of domestic abuse.^[2] Broadly speaking, the Court of Appeal was asking the question: where have the family courts been going wrong with regard to domestic abuse cases and, more crucially, how can they do better?

The way in which these cases are currently handled within family courts is inextricably linked to wider cultural understandings of abuse, rape and victimhood. The Court of Appeal case highlights this point and exposes how limited cultural understandings can be detrimental to the administration of justice. Notably, two of the cases forming part of the conjoined appeals concern decisions made by Judge Robin Tolson, who has previously been challenged for his antiquated definition of rape. In a case from January 2020, Judge Tolson ruled that because a woman had failed to take ‘physical steps’ to prevent a man from raping her, ‘this did not constitute rape’.^[3] Barrister Christopher Hames QC, representing one of the appellants challenging Tolson’s findings, stated that the judge had focused on the how the mother engaged in ‘consensual sex’ many times before the alleged ‘non-consensual’ sex took place and, subsequently, made no findings on any of her allegations of rape or abuse.^[4]

In their June 2020 report, the Ministry of Justice found that societal ‘rape myths’ can infiltrate and influence decisions made in family courts.^[5] The idea that a woman must physically fight back when being raped, or that her consent on previous occasions implies consent on all future occasions, are apparent in Judge Tolson’s rulings. The report also identified the ‘myths’ surrounding how a victim of abuse should behave in court: ‘If women are perceived as overly emotional then this can be judged negatively, as “exaggerating for effect” or, in contrast, if they display little or no emotion, this can also be interpreted as undermining their credibility’.^[6] Fundamentally, the family courts must seek to reject stereotypes and ensure that there is improved training on issues of rape and domestic abuse. Our justice system must not perpetuate such plainly outdated mythology.

A further key issue considered at the hearing was that of the ‘pro-contact’ approach taken by the family courts. This approach prioritises the need for children to have contact with both of their parents above all else, regardless of whether one parent has been abusive or violent towards the other. This subject was last addressed in 2000 by the Court of Appeal in Re LVHM.^[7] In this case, two child psychologists, Dr Claire Sturge and Dr Danya Glaser, established that it was not necessarily in a child’s best interest to continue contact with a parent who has exhibited abusive or violent behaviour.^[8] As a result, the Court of Appeal established that family courts should be aware of the damaging impact of domestic abuse on children, even if the abuse is not directly inflicted on them.

Despite this landmark case twenty years ago, the Ministry of Justice reports that there continues to be a ‘pro-contact’ culture within the family courts.^[9] Sir Andrew MacFarlane, acting President of the Family Division expressed, in Re: W (Children), that it is ‘almost always in the interests of a child to have contact’.^[10] Several women’s organisations have spoken out about the detriment caused by pro-contact, and were called to offer their expertise before the Court of Appeal in January’s hearing. Lucy Hadley, Head of Campaigns & Policy at Women’s Aid, explained that a ‘contact at all costs’ approach ‘undermines the safety of survivors and their children, ignores the impact of domestic abuse on them and can expose them to further abuse and harm’.^[11]

January’s conjoined appeals expose how merciless a ‘pro-contact’ culture can be for mothers who are trying to protect their children. In the case of Re B-B, during a private hearing on child contact arrangements, Judge Richard Scarratt warned a mother that her child would be put up for adoption if she allowed the case to continue ‘going on and on’.^[12] On appeal, the mother’s counsel argued that this remark had coerced her into negotiating a contact arrangement with the child’s allegedly abusive father. In essence, pro-contact logic proclaims that being abusive towards a partner does not impact the abuser’s ability to be a good parent. This approach ignores the trauma of children who have witnessed domestic abuse and fails to adequately protect them.

The Court of Appeal is soon expected to present guidance on these principles to the family courts, though they will continue to be bound by Supreme Court decisions and parliamentary legislation.^[13] This guidance gives the Court an opportunity to formally address the systemic issues and misunderstandings which have plagued family courts for decades. With the Domestic Abuse Bill currently being examined in the House of Lords, 2021 has the potential to be the year of life-saving reform.

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^[1] Goldsmith Chambers, ‘Dr Charlotte Proudman representing Appellant Mothers in Court of Appeal Domestic Abuse Case’ (20 January 2021) <www.goldsmithchambers.com/dr-charlotte-proudman-representing-appellant-mothers-in-court-of-appeal-domestic-abuse-case/> accessed 20 February 2021.

^[2] Ministry of Justice, Family Procedure Rules, Practice Direction 12J – Child Arrangements and Contact Order: Domestic Violence and Harm, (10 February 2021).

^[3] Louise Tickle, ‘In our secret family courts, judges still don’t understand what rape means’ The Guardian (5 January 2020).

^[4] Lucy R, ‘The Court of Appeal considers Domestic Abuse- Part 2’ (Transparency Project, 24 January 2021) <www.transparencyproject.org.uk/the-court-of-appeal-considers-domestic-abuse-part-2/> accessed 20 February 2021.

^[5] Ministry of Justice, Assessing Risk of Harm to Children and Parents in Private Law Children Cases (June 2020), 51.

^[6] ibid.

^[7] Re L; Re V; Re M; Re H [2000] 2 FLR 334.

^[8] Rights of Women and Child & Woman Abuse Studies Unit, Picking up the pieces: domestic violence and child contact (2012),14.

^[9] Ministry of Justice, Assessing Risk, 40.

^[10] Re: W (Children) [2012] EWCA civ 999.

^[11] Rights of Women, ‘Court of Appeal considers Family Court’s approach to domestic abuse in child contact cases’ (19 January 2021) <https://rightsofwomen.org.uk/news/court-of-appeal-considers-family-courts-approach-to-domestic-abuse-in-child-contact-cases/&gt; accessed 20 February 2021.

^[12] Hannah Summers, ‘Judge’s remarks made mother ‘fearful’ for herself and her child, hearing told’ The Guardian (22 January 2021).

^[13] Lucy R, ‘The Court of Appeal considers Domestic Abuse – Part 3’, (Transparency Project, 29 January 2021) <www.transparencyproject.org.uk/the-court-of-appeal-considers-domestic-abuse-part-3/> accessed 20 February 2021.

Image credit: The Royal Courts of Justice by ell brown CC BY 2.0

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

UKSC rules Shamima Begum cannot return to UK to appeal her citizenship case

Karim Pal analyses the latest ruling in Shamima Begum’s ongoing court battle against the Home Office.

The Supreme Court has handed down its judgment in R (on the application of Begum) v Secretary of State for the Home Department [2021] UKSC 7, in which the court considered whether Shamima Begum should be allowed to return to the UK in order to appeal, in person, the revocation of her citizenship. Begum’s case garnered much media attention as it passed through the courts and the handing down of this judgment has already attracted much more. A common theme of this coverage is a misinterpretation of what was actually decided. It did not decide that the former Home Secretary Sajid Javid’s revocation was lawful, but that it is not necessary for the Government to repatriate Begum in order for her to properly appeal the decision.

BPP HRU event: Reframing the Rights of Refugees

Last week, the BPP Human Rights Unit hosted the Reframing the Rights of Refugees event. They were joined by four fantastic guests – Toufique Hossain, Pierre Makhlouf, Marina Brizar, and Ruvimbo Mutyambizi – who shared their experiences of working refugee issues.

Lou Lou Curry reports on the event.

BPP HRU event: Human Rights Networking and Roundtable

On the 6th January, the BPP Human Rights Unit hosted the Human Rights Networking and Roundtable event. With two group discussions running in tandem, students shared their thoughts on the mass incarceration and persecution of the Uighur population in China using re-education camps and human rights in the digital world.

Jack West-Sherring reports on the event.

The BPP Human Rights Unit (HRU) launched their 2021 events calendar with a networking and roundtable event discussing two topics, the effect of the digital age on human rights and the persecution of the Uighur population in Xinjiang. Making use of two Microsoft Teams breakout rooms, this was an incredible opportunity to share thoughts and opinions on crucial human rights issues and get to know a body of likeminded students a little better.

Blocked: High Court rules children under 13 cannot consent to puberty blockers

Karim Pal analyses the recent case of Bell v Tavistock and its impact on children trying to access puberty blockers while highlighting a number grounds of appeal.

The recent case of Bell v Tavistock¹ asked the question of whether young people with gender dysphoria (GD) can consent to treatment with puberty blockers (PBs). The judgment of the High Court, in favour of the claimant, found that it is highly unlikely that any child under thirteen could understand and consent to such treatment and doubtful a child of fourteen or fifteen could either. For children over sixteen, it was suggested the authorisation of the court may need to be sought. This has been controversial, with access to PBs for children with GD much diminished as a result. In response, organisations including Stonewall², Amnesty International and Liberty³ have all released statements of dismay. It has been suggested that the court did not hold in high enough esteem the fact that less than 0.1% of those with gender dysphoria that transition reverse their treatment⁴, and that the Human Rights Act provides a right to bodily autonomy, which this decision severely infringes upon for children with GD. On the other hand, some activist groups supporting the court’s decision have now gone further, calling for a curtailing of GD treatment for young adults who have left home as well.

The complainant, Keira Bell, was born a girl, but began to question her gender by the age of 14. She was referred to the Gender Identity Development Service (GIDs) of the NHS when she was 15 and and began taking PBs age 16. She then went on to take cross-sex hormones at 17 and had a mastectomy at age 20. She subsequently regretted her decision and de-transitioned, although the procedures she went through have left long-term side effects. Now 23, she feels that the processes by which she was prescribed the treatment were not robust enough and that she should not have been able to embark on such a procedure. Her case rested on the claim that, due to the nature of PBs, children cannot be supplied with sufficient information to consent to the procedure.

Fundamentally, this case is about risk, specifically the level of risk society is happy for a child to take, putting the principle of Gillick competence under scrutiny. Gillick competence is the term used when deciding whether a child can consent to medical treatment, first established by the courts in Gillick v West Norfolk and Wisbech Area Health Authority⁵, where it decided that doctors could prescribe children contraception without parental consent. The test applied is whether the child in question has a sufficient understanding of the treatment and the maturity to understand its impacts to consent to a particular medical procedure. The judgment was subsequently affirmed and applied in other medical settings, notably the ability of minors to have abortions without parental consent.

The defendants sought permission to appeal from the High Court on nine separate grounds. However, the two grounds which may carry the most water are that the court erred in its application of the Gillick principle in this case: First, in its determination of the risks of PBs themselves; and second in requiring patients to understand the risks of using cross-sex hormone (CSH) treatments to be Gillick competent. Arguably, the courts also over-emphasised the experimental nature of PBs, and set an unwanted precedent, something that has been overlooked.

Can a child possess the requisite maturity and intelligence to understand the nature and implications of PBs required to consent? The court relied on evidence from Professor Scott on the cognitive ability of children. She stated it may not be possible for an adolescent, even when the risks had been adequately explained, to grasp the risks of PB treatment, given its life-altering consequences. This is odd, as it was generally accepted by the court that the short-term physical impacts were reversible and there was also no evidence of long-term side effects. This is a misinterpretation of the facts, a relatively uncommon ground for appeal.

However, there may have been a misapplication of law as well, through the use of an incorrect counterfactual when applying Gillick competence (although this was not listed as a ground for appeal). There are no irreversible short-term physical impacts of PBs; the court heavily relied upon the risk of missing out on usual adolescence experiences instead. But, a child with gender dysphoria would not have had such an experience anyway: Living with GD, to question one’s own identity, is not similar to a usual adolescence’s experience and the hardships of it cannot be understood by others. Using the experience of those with GD who do not take PBs as the counterfactual changes the risks, and as such, may change whether a child is deemed Gillick competent.

The court arguably made a second mistake in law in its application of Gillick competence, by requiring a child to be Gillick competent for cross-sex hormone treatments in order to be competent for PBs. It was argued this was because most patients proceed onto this procedure, which has far broader, irreversible consequences. There may be a strong case that a child under 16 could not consent to CSH; however, this is not a good reason to stop PB procedures, which have no known irreversible physical impacts. It is not a requirement to progress from PBs to CSH, and mechanisms could be put in place to delay the latter treatment until the individual was considered competent to consent.

The court noted that PBs are an experimental procedure, deemed so due to the lack of published work on the long-term effects, making consenting to the associated risks more difficult. This is true, but setting the precedent that children cannot consent to long-term risks, or uncertain risks, is dangerous. It may potentially preclude children from future treatments which may drastically improve their lives, for example, the use of the controversial Vosoritide drug, which helps with growth for those with dwarfism. To take another quite different example, the recent litigation taken by a number of ex-rugby players against the Rugby Football Union has called into question whether tackling should be banned in school-age rugby.⁵ This matter, and that of PBs, both ask us to consider what level of risk children can take, as such it would seem appropriate to extend Gillick competence beyond the field of medical law, lest there be an illogical asymmetry in how society and the law think about risk in different areas of a child’s life. Based on the precedent set by Bell, I doubt a child could be considered to have the competence to partake in a game which has clear long-term health risks.

Permission to appeal has now been granted by the Court of Appeal to Tavistock, to be heard in the next twelve months. In the meantime, it seems unlikely PBs will be prescribed to any minors, with Tavistock having suspended all such treatments through its GIDS clinic. Let’s hope the Court of Appeal can clarify this issue swiftly, so that these children are not left in limbo.

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1. R (Quincy Bell) and A  v Tavistock and Portman NHS Trust, and others [2020] EWHC 3274
2. https://www.stonewall.org.uk/about-us/news/stonewall-statement-tavistock-appeal
3. https://www.amnesty.org.uk/press-releases/amnesty-international-uk-and-liberty-joint-statement-puberty-blockers
4. https://mermaidsuk.org.uk/news/live-updates-tavistock-judicial-review/
5. “Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7”
6. “https://www.bbc.co.uk/sport/rugby-union/55201237”

Image credit: OpenClipart-Vectors (pixabay.com)

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

What is the “gay tax” on creating a family, and what does it mean for the LGBTQ+ community?

Christie O’Connell explores the challenges facing same-sex couples in starting a family and the need for equal access to NHS fertility treatment in the UK.

The LGBTQ+ community in the United Kingdom has long been fighting for equality and social acceptance. In 2004, the Civil Partnerships Act allowed same sex couples to enter into legally binding partnerships, followed by the Marriage (Same-Sex Couples) Act 2013 which enabled same-sex couples to marry. In 2008, same sex couples were legally recognised as the parents of children conceived through the use of “donated sperm, eggs or embryos” ^[1] by the Human Fertilisation and Embryology Act 2008. Notably, this enactment enabled the civil partner of a women who conceived through IVF to be recognised as the child’s legal parent. The Acts intention to reflect modern society was well received^[2]. In this social and cultural shift, there is no denying that the lives of many LGBTQ+ people have changed significantly however, the LGBTQ+ community still face discrimination in the UK due to their sexuality, and the barriers faced by same-sex couples in accessing IVF pays homage to this.

The Health of the Nation: How abortion rights have been extended and restricted through the Polish Constitution 1945-2020

Amber Sparks discusses the recent changes to Poland’s abortion laws in the context of the country’s political history over the last fifty years.

Abortion rights and the Polish Constitution have had a turbulent relationship over the course of the past half-century. The establishment of the one-party Polish People’s Republic in 1947 implemented Soviet Communism as well as a gradual extension of abortion rights. In the years leading up to the 1989 revolutions, abortion became common practice: in Łódź and Warsaw, there were more abortions than total registered births in 1968.^[1] The multi-party politics that followed, which epitomised post-Communist transitions across Eastern Europe, centred rights to abortion at the heart of ferocious debates about the future of the nation.

A Summary of the “Paedophile Hunter” Case

Tim Reeves offers a case summary of the Supreme Court’s recent ruling in Sutherland v Her Majesty’s Advocate [2020] UKSC 32.

On the 15^th June 2020 the Supreme Court (Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Leggat) ruled that the appellant’s article 8 ECHR rights had not been interfered with in relation to evidence gathered by a “paedophile hunter” vigilante group, which was later relied upon to prosecute the appellant for a number of offences under the Sexual Offences (Scotland) Act 2009.

XX v Whittington NHS Trust and the Human Rights Issues Surrounding Restrictions on Egg Freezing in the United Kingdom

Georgia-Mae Chung analyses the law regarding the use of frozen eggs and argues that needs to evolve in light of the law’s changing understanding of what is meant by “family”.

Whittington v XX: dramatic developments in the meaning of “family”

On 1 April 2020, the Supreme Court held by a majority in Whittington Hospital NHS Trust v XX [2020] UKSC 14 that the cost of commercial surrogacy arrangements abroad was in principle recoverable as damages, regardless of the fact that equivalent arrangements are banned in this country by the Surrogacy Arrangements Act 1985 (“SAA 1985”).[1]

All Work and No Play: A Consideration of Child Labour Practices in Zambia

All Work and no Play: A Consideration of Child Labour Practices in Zambia

Child labour practices continue to persist on a global level and Zambia is no exception to the phenomenon; the southern sub-Saharan African country is plagued by the illicit use of underage labour across multi-economical disciplines.  Out of the one hundred and sixty million underage workers world-wide, close to one million originate from Zambia.  Many of these children are exposed to the most hazardous forms of labour often hampering their physical development and even resulting in fatalities.