14:58, March 09 71 0 theguardian.com

2020-03-09 14:58:04
Forensic examination of bias in family courts

Sonia Sodha says most judgments in the family courts relating to separated parents’ contact with children are never published and that there is a lack of transparency about how these decisions are made (There is a bias in family courts – but it’s not against men, Journal, 6 March). In fact, since 2014 judges are required to permit and send certain cases to the British and Irish Legal Information Institute for publication unless it would be harmful to do so. Exposing children to the ridicule of their peers and their parents to prurient curiosity, and discouraging witnesses from providing evidence, should be avoided. But if anonymising the judgment would prevent the harm, publication will be more likely to occur.

Sodha also suggests that the system is weighted against women. The reverse is true. Legal aid is available to any woman who has evidence of physical or sexual abuse. The anomaly is that while the accuser may have legal aid representation, the accused, usually a man, does not. Furthermore, the court can take measures to make it easier for an alleged victim to give evidence, by providing screened witness boxes, evidence given over a video link, and intermediaries to help the cognitively impaired. Sodha refers to a “disproportionately male” judiciary, but that was certainly not the case in the central family court, where I sat. The “parental alienation syndrome” to which she refers may or may not exist as a phenomenon, but it is, sadly, true that some mothers turn their children unfairly against their fathers, just as often as is the converse.

What should be most concerning is that turning the public against judges may so undermine confidence in the family justice system that people will either not try to seek redress or, worse, take the law into their own hands. The real problem facing family justice is the slashing of court budgets and the absence of legal aid in the vast majority of children cases.

His Honour Glenn Brasse

Retired circuit judge, London

Sonia Sodha is surely correct in asserting that issues in court relating to a father’s contact with children are highly fraught. There is nothing new, though, about judges threatening to transfer residence to a father, from a mother who deliberately thwarts orders for contact. I remember watching in the court of appeal in the 1960s when a threat to that effect was made. The judges had no wish for the threat to be carried out. They used it as a tool to encourage the order for contact to be complied with.

A child psychiatrist giving evidence many years ago made a more powerful and subtle argument directed towards the mother, for contact between children and a non-resident father. He suggested that with a hostile mother (often for very good reason) and in the absence of contact, a child might well grow up with strong negative feelings about the absent father. Those negative feelings might at some level develop into the child having damaging negative feelings about half their own genetic inheritance, with consequences for their own feelings of self-worth, emotional development and ability to make relationships. These ideas may be old hat to many of your child psychiatrist readers, and it would be good to know of their current standing.

His Honour Paul Collins

Horton-cum-Studley, Oxfordshire

Sonia Sodha cites a “review of published court decisions” in support of her article. Three features of that report (Harding and Newnham, 2015) jumped out at me as an academic, quantitative social scientist:

1. Small/unrepresentative sample. They reviewed 197 cases from five (out of 210) anonymised county courts over six months in 2011. We are not told how these courts were selected. Instead, the authors note that “our findings … are not statistically representative of the general practice in 2011” (page 8).

2. No controls for endogeneity. The study compares applications’ success rates, but does not consider whether fathers are discouraged from making applications in the first place. Analogously, suppose female and male job applicants are hired with equal probability, but that the females overwhelmingly applied for lower-pay/lower-status jobs. We would want to explore whether females were not applying for jobs known to be “for the boys”. The 2011 cases show exactly this pattern – fathers’ applications are disproportionately for basic outcomes like contact (pages 10, 12) – but the report does not consider discouraged applicants.

3. Gender differences throughout. The study also finds that “a higher number of residence orders were made for mothers than for fathers” (page 56), that the “most common outcome was for the child to live with the mother and the father to be granted a contact order” (page 58), and that fathers’ sole-residence order applications had a 50% success rate (page 64) against 63% for mothers (page 65); in applications brought while parents are still living together, over three-quarters of children end up with their mother, six times as many as end up with their father (page 74).

Whether family courts display biases that distort their ability to discern what is in children’s best interests is clearly important. If there are not more reliable studies than this, then there is a worrying gap in the literature.

Colin Rowat

Department of economics, University of Birmingham

The court system in this country is not fit for purpose. This is not a criticism of my fellow professionals, magistrates, judges or the many other people who dedicate their lives to this area of the profession. It is just the reality that faces us day to day. The court service is underresourced and overworked. In addition, more and more people are having to represent themselves.

No two family cases are the same, but the stakes are always high when you are dealing with serious allegations of domestic abuse. The law itself has no gender bias. One in four women and one in six men will be a victim of domestic violence in their lifetime, according to Living Without Abuse. A successful outcome in a case where domestic violence has been alleged (by a person of any gender) will rarely garner the attention of the press.

Instead of forensically trying to adjudicate on who “benefits” more from potential bias in the system or directing criticism to the existing court process, which can on occasions feel like you are doing your job with one hand tied behind your back, more focus needs to be placed on what reforms would enable a better outcome for all those who have recourse to the family judicial system.

Eloise Down

Chartered legal executive (family), Trethowans

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