Non-Mols, Legal Aid…Women’s Aid

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Let’s start at the beginning because, to quote Julie Andrews, ‘that’s a very good place to start’.

Yesterday saw the publication of this article by the BBC following claims by FNF that, ‘…parents are being encouraged by some solicitors to file for non-molestation orders – injunctions used in urgent abuse cases. ‘

https://www.bbc.co.uk/news/education-44628179

The BBC naturally sought comments from FNF, the MOJ, the incoming and outgoing presidents of the family division, and, Women’s Aid. Like any formidable campaigning group, WA are never shrinking violets when it comes to opportunities to spread their message. However, as in this instance, they tend to undermine their message when any relationship between facts and expressed feelings turns out to be a coincidence.

Their CEO, Katie Ghose made a number of bland assertions that, just like most people who make false allegations, she did not include any supporting evidence for. She stated:

“Non-molestation orders are only granted by the courts in cases where a judge is satisfied an order is required to keep a victim of domestic abuse safe.”

and

“We are not aware of any cases where mothers have falsely applied for non-molestation orders.”

Perhaps Ms Ghose does not get outside her echo chamber much, perhaps she does not read the papers, perhaps she has memory difficulties or perhaps she has trouble distinguishing fact from fiction. Whatever the reason, there can be no excuse for a person, who trousers a lucrative six figure salary — largely funded by the taxpayer, to get her basic information so wrong by promoting a view that in some cases prejudices the safeguarding of the very children her organisation purports to protect and in some cases actually succeeds in prolonging their abuse. She is a public figure whose opinion and views have been treated by the BBC with the same credence and credibility of our most senior family court judges. She owes all of us a duty of care to be accurate and do her homework. Slogans and soundbites do not make compelling arguments regardless of how loudly they are expressed.

Both of her initial sweeping, strident and grossly misleading claims are squarely rebutted in a well known judgment from HHJ Peter Jackson in R v R (Family Court: Procedural Fairness) [[2014] EWFC 48. Sadly, Mr R’s experiences are by no means unique. Our experience is that parents are consistently placed in situations where they face having to prove why they should not be the subject of a non molestation order whereas the burden of proof actually rests with the claimant.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html

The Telegraph coverage was typical of the headlines and reports at the time.

Father treated ‘like Kafka character’ by Family Court – top judge

https://www.telegraph.co.uk/news/uknews/law-and-order/11294438/Father-treated-like-Kafka-character-by-Family-Court-top-judge.html

Indeed, due to the “Draconian way” this case was handled, the true victim in this case actually turned out to be the person (Mr R) whom the court had granted a non-molestation order against. The children, whom the court was supposed to be protecting, can also be considered victims. The sole beneficiary was the lawyer.

“All in all, Mr R could be forgiven for feeling like the hapless protagonist in Kafka’s ‘The Trial’,” 

‘The Trial’ is a famous novel in which the character of Josef K is prosecuted for a crime which is never revealed to him or the reader. 

The reports and the judgment are well worth reading. The case illustrates graphically how easy it is to obtain a Non-Molestation Order or Non-Mol. It also provokes serious questions such as, ‘How can such injustices happen in the post Magna Carta years let alone 800 years after?’

Having got the court to grant one of these orders, with the minimum of rigour beyond rubber stamping by judges and professionals, the case shows in clear terms how HHJ Peter Jackson had little hesitation in granting permission to appeal and allowing the appeal, ‘…setting aside all previous orders, on the basis that each of the following steps in the process was wrong. He found that:

‘1. A without notice application should not have been made.

2. A without notice order should not have been granted on this evidence.

3. The order that [which] was granted did not reflect the judge’s intention.

4. The orders preventing access to the street and banning direct communication were unnecessary and disproportionate.

5. At the first hearing attended by both parties, the court did not review the without notice order to ensure that there were no obvious errors of the kind that existed here.

6. The date given for a contested hearing of Mrs R’s application was too distant to be meaningful.

7. Mr R’s request for extra time to file his statement should have been granted at the outset.

8. The hearing date for Mrs R’s application should not have been cancelled.

9. The application for relief from sanction should have been considered on paper and granted.

10. The date given for a contested hearing of Mr R’s application for relief from sanction was again too distant to be meaningful.

11. The District Judge did not correctly apply the rules governing relief from sanction. Had she done so, she would have concluded that there was no good reason for refusing to admit Mr R’s statement. ‘

For any judgment, at any level of court, that is quite a ‘rap sheet’. It is the equivalent of managing to get ones name right, but nothing else, on an exam paper.

Furthermore, the orders were granted in virtual secrecy and the accused was effectively prohibited from speaking with others about his plight: What an absolute nightmare. It only saw the light of day because HHJ Peter Jackson took the increasingly rare step of actually allowing an appeal arising from a lower family court which obliged him to publish his findings. This is therefore the sanitised shop window of the family justice system. Our work at NAAP informs us that the areas hidden from the public gaze are equally, if not considerably more, unattractive. Had Ms Ghose done her job then she could easily have been less misleading and more factually accurate.

Furthermore Ms Ghose typically states, “We are not aware of any cases where mothers have falsely applied for non-molestation orders.”

This is a highly disingenuous and misleading statement from Ms Ghose because, most of these cases are heard behind closed doors in the lower courts and effectively barred from discussion by confidentiality rules. Therefore, she will be aware that, although they may not be recorded, that does not mean they do not exist. However, here is a selection of recorded intractable cases which made findings that allegations were false. But, as already stated, this is effectively the tip of a very large iceberg. However, as R v R illustrates, the evidential requirements for granting these orders are dismally poor. Therefore there can be little doubt that most, if not all, of these cases could have involved non-mol orders even when they are not specifically mentioned.

Re M (Intractable contact dispute: Interim Care order) [2003] 2 FLR 636

A v A (Children) (Shared residence order) [2004] 1 FLR 1195 Wall J

V v V (Contact: Implacable Hostility) [2004] 2 FLR 851

Re A (Suspended Residence Order) [2009] EWHC 1576 (Fam), [2010] 1 FLR 1679 FD

Re D (Children) [2010] EWCA Civ 496

A v A [2013] EWHC 3554 (Fam)

H (Children) [2014] EWCA Civ 733

W (A Child) [2014] EWCA Civ 772

Williams v Minnock, Case No: VS13P00027 In the Bristol Family court

Re Q (A Child), [2015] EWCA Civ 991

AS v TH (False Allegations of Abuse) (Rev 1) [2016] EWHC 532 (Fam)

Q v R (intractable contact) [2017] EWFC B35

Gibbs v Gibbs [2017] EWHC 1700 (Fam)

“We know from our work with survivors that non-molestation orders can be difficult to obtain and the court process itself can be distressing for victims.”

As R v R demonstrates, the granting of a non mol is far from a non-eventful walk in the park for falsely accused victims of manipulative fantasists either.

Following, the Henriques report and recent miscarriages of justice, Cressida Dick’s revision of her police force’s policy to ‘investigate’ as opposed to automatically believing accusers came as welcomed news to anyone that appreciates fundamental principles of British Justice. Ms Dick expressed a reasoned view when she stated,

“You start with a completely open mind, absolutely,” she said. “It is very important to victims to feel that they are going to be believed. Our default position is we are, of course, likely to believe you but we are investigators and we have to investigate.”

By automatically believing accusers, children have at times been unnecessarily left in the care of abusive parents, subjected to prolonged abuse and suffered harm as a consequence of believing accusers as a default position. I am sure that is something which Ms Ghose would not wish to support.

The facts are that the case law highlights the following:

  • Applications for Non Mol orders are made and granted when they are NOT justified,
  • Judges sometimes make orders that do NOT reflect their true intentions,
  • Non mols are sometimes unnecessary and disproportionate,
  • In practice, systems for reviewing orders do not always work,
  • Non Mol orders sometimes operate for periods longer than intended,
  • Sometimes court proceedings are not conducted fairly,
  • Proceedings sometimes carry on for longer than is needed,
  • court appearances are not always necessary,
  • The rules concerning Non Mols are not routinely followed.

It does not appear to disclose anything like the picture Ms Ghose is attempting to paint. Ms Ghost’s charity conflates itself with the welfare of children of all genders.

ie ‘Women’s aid – until women and children are safe.

It would be a welcomed development if they did not regard the child victims of their current rhetoric as collateral damage.

I agree that FNF have done a good job in highlighting these issues. But, having achieved an initial impact it is far too early to sit back and admire one’s handiwork. The responses, particularly when they are so far off beam, need to be challenged unless the intention is to merely travel together without ever arriving.