Very apropos my last post, there is a new biography of Caroline Norton out, The Case of the Married Woman Caroline Norton: A 19th-Century Heroine Who Wanted Justice for Women by Antonia Fraser.
When Queen Victoria married Prince Albert in 1840 she insisted on keeping the traditional form of the service where the wife promises to love, honour and obey her husband, even though the Archbishop of Canterbury wondered if such a pledge was really appropriate in her case. Victoria, however, insisted; it was her way of demonstrating that she was getting married not as a queen but as an ordinary woman.
Of course, there was no comparison between Victoria’s situation and that of “ordinary” wives of the period, who at the time of marrying lost all rights, becoming in law their husband’s property. Full divorce was available only through an act of parliament, and a wife who left her husband had no rights over their children, as they too were considered to be the husband’s property.
As the distinguished biographer Antonia Fraser makes clear in this, the third of her books on great reforms of the 19th century (she has already tackled the 1829 Catholic Emancipation Act and the 1832 Reform Act) the fact that the law was changed to give women a limited degree of independence 20 years later owes much to the life and work of her subject, the indefatigable Caroline Norton.
Norton was the granddaughter of the playwright Richard Brinsley Sheridan, and was one of three beautiful sisters, dubbed the “Three Graces”. The young Disraeli called her the “starry night”, and she was famous for her dark eyes and hair, her wit, her charm and her literary talent (she published her first poems at 17). She was also described as “mannish” — the ultimate put-down — and one aristocratic diarist, Harriet Granville, wrote: “Caroline Norton is so nice, it is a pity that she is not quite nice, for if she were quite nice, she would be so very nice.”
Caroline did not marry well. Her first love died young, and in 1827, aged just 19, she hastily wed an older admirer, a Tory MP called George Norton. They swiftly had three sons, and while Caroline soon became disenchanted with her husband’s petulance, and suffered physical abuse (he once kicked her so hard that he caused a miscarriage), she loved her children and enjoyed the power and influence she wielded running a political salon at her home in Storey’s Gate, within spitting distance of Downing Street.
Caroline’s sympathies were progressive — she went on a march supporting the Tolpuddle Martyrs — but she liked power and became very close to the less than radical Whig home secretary Lord Melbourne, a frequent visitor to Storey’s Gate.
George Norton at first tried to profit from this connection, asking his wife to lobby Melbourne for a JP’s appointment (this was a paid position, unlike being an MP, and the Nortons were broke apart from Caroline’s income from her writing). However, a year later, in 1832, the marriage broke down irretrievably, and Norton took his sons away and refused to let Caroline see them — as was his legal right. In 1836, probably with the encouragement of senior Tory politicians, he then brought a case of criminal conversation (adultery, essentially: “conversation” was a euphemism for sex) against Lord Melbourne, who was then prime minister.
Norton aimed to use “crim con”, as it was known, as a way of extracting financial redress (£1 million in today’s money) for the damage Melbourne had done to Norton’s property — Caroline — by having an affair with her. Melbourne denied the charges and was acquitted. Caroline always maintained that Melbourne “was my friend though not my lover”, but while Melbourne remained as prime minister, she was left penniless and unable to see her sons. Worse was to follow when her youngest child, Willie, died aged nine in 1842 from a riding accident after being left unsupervised. His last word was reportedly: “Mother.”
Some women would have been broken by all this, but the “mannish” Caroline was extraordinarily determined. In 1839, using her extensive political contacts, she had already campaigned vigorously in support of the Infant Custody Bill, which gave “innocent” married women the same rights over their young children as unmarried mothers. It was only a small step, and there was much debate about whether the law would encourage women to commit adultery, so it was made clear that only “blameless” women would be allowed to have custody of their children. Yet as Fraser points out, it was the first time in British history that “a married woman had some rights over her own children”.
Twenty-odd years later Caroline was campaigning again, for another piece of legislation, this time giving married women some rights over their own property. After her separation she supported herself and her sons with her writing, noting that “I made more in a month by writing, than [Norton] did in a year as a barrister”. But her income was still legally her husband’s property — and in 1853 they met in court over an unpaid debt, with Norton once again losing. In her 1854 pamphlet English Law for Women in the Nineteenth Century, Caroline wrote that “in no country in Europe, is there in fact so little protection of women as in England, despite the fact there is a female sovereign, unlike other countries where the Salic law forbids it”. Three years later an act giving married women some legal rights for the first time over their own property was passed.
Caroline’s ceaseless campaigning, her taste for publicity and her ambition (she once wrote to the prime minister Sir Robert Peel suggesting she be appointed the next poet laureate) did not generally endear her to people — even her sisters wished that she would stop making such a fuss. She was also not what we could call a feminist: she believed that women should be “protected” by men. Yet she made a difference, a big difference. There have been other books about Caroline Norton, but Fraser’s is the first to emphasise what a modern figure she is, portraying her not as a hapless victim but as a working mother and bestselling writer who refused to submit to what can only be called the patriarchy — a “difficult” woman whose bloodymindedness improved the lot of other women. Fraser is surely right to call her a 19th-century heroine.
On 24 October 1975, 75,000 women in Iceland left their jobs, children and homes and took to the streets for a general strike that was billed “Women’s Day Off”. In Reykjavik, 30,000 women marched up the Laugavegur (wash road), as a women’s brass band played the marching tune from Shoulder to Shoulder, a British TV series about the suffragettes which had recently aired in this small Nordic nation. Flyers fluttered against clear autumn skies: “We march because it is commonly said about a housewife: ‘She is not working, she is just keeping house’,” they read. “We march because the work experience of a housewife is not considered of any value in the labour market.”
For Icelandic men, this day became known as the “Long Friday”. With no women to staff desks and tills, banks, factories and many shops were forced to close, as were schools and nurseries – leaving many fathers with no choice but to take their children to work. There were reports of men arming themselves with sweets and colouring crayons to entertain the swarms of children in their workplaces, or bribing older children to look after their siblings. Sausages (easy to cook, of course, and a hit with children the world over) were in such demand that shops sold out; children could be heard giggling in the background while male newsreaders reported the day’s events on the radio.
Many of the greatest successes of feminism have come in moments when boots were on the ground; and our bodies elsewhere to the posts ascribed to women by patriarchal capitalism. In the UK, public reaction to the sexual violence meted out against the 300 women who marched to parliament demanding women’s suffrage on 18 November 1910, Black Friday, was instrumental in gaining the vote for women. The 1968 strike by Ford’s women sewing machinists at Dagenham, which was followed by 1970 strikes by women clothing workers in Leeds, were landmark labour-relations dispute that triggered the passing of the Equal Pay Act 1970.
Yet domestic labour has always been a tricky injustice to protest against. It takes place in the privacy of the home, making it difficult for women to see each other doing this work and to collectively acknowledge that men do not share equally in its burden (and they don’t: the average British woman still contributes 60% more washing, wiping and childcare a week than the average British man, even as the pandemic has increased this work to around nine hours per day). And there can also be dire consequences if we withdraw this labour: children uncared for and vulnerable relatives unfed.
“A women’s strike is impossible; that is why it is necessary,” claims Women’s Strike Assembly (WSA), an activist alliance that, to mark last week’s International Women’s Day, called for a series of banner memorials to be erected around the UK to declare why #westrike as women (or, just as importantly, why we can’t). In a manifesto published in November, WSA wrote: “We strike because we are tired of our labour being taken for granted. We strike because we now have to do a triple shift: our paid work, our unpaid domestic labour and educating our children during the pandemic.”
In Liverpool, Bristol and Edinburgh women gathered, last Monday, in socially distanced clusters toting their banner memorials. “#westrike because we are tired. Very, very tired,” a banner in Liverpool read and a memorial painted by Bristol Sisterhood stated, simply: “Fuck macho bullshit, women on fire.” Many of the social media protests, however, indicated why last Monday saw no wholesale abandonment of women’s posts. “I am a freelancer and I would not get paid (or lose my client!). But I’m striking with my compañeras in mind and spirit,” one IWD banner read, and another: “I cannot strike but I lit a candle in solidarity.”
Recent years have seen a flowering of strikes against gendered labour in Spain and South America. In 2018, six million women joined Spain’s 2018 “Dia Sin Mujeres’ (day without women), including Madrid’s Manuela Carmena and actress Penelope Cruz, as “feminist men in solidarity” staffed a network of collective nurseries. Old-fashioned mother’s aprons, the symbol of the strikes, were stitched in solidarity workshops and strung from balconies. But, in Britain, women’s general labour strikes have been conspicuously absent.
Selma James, the cofounder of 70s marxist activist project Wages for Housework, has a theory to account for this lack. She points out that as the power of unions dwindles, the climate in Anglo-Saxon countries is less hospitable to gestures of withdrawn labour, even as feminist identity marches gain broader support. Without union protection, British and north American women who strike from paid work risk losing their jobs; to the single mum on the breadline in a pandemic, strikes, in this context, seem the preserve of privileged white feminists.
For all this, calling political attention to the pandemic’s third shift is an urgent project. Only 36% of British women have been able to continue working full time alongside their caring responsibilities during the pandemic, compared to 66% of men, and mothers are more likely to have quit or lost their job. As the pandemic recedes over a nation of shattered women, there will be opportunities for direct action. Women’s March, Pregnant Then Screwed and Women’s Strike Assembly, among others, are calling for protests and marches to highlight the structural sexism that’s left women bearing the brunt of reproductive labour during this year of crisis.
James, in the meantime, advocates a daily constellation of “small resistances”: banging pots and pans at your window; stringing up a banner and apron; radically lowering domestic standards.
Forty-five years after the Women’s Day Off, Iceland has ranked top in the World Economic Forum’s Global Gender Gap Report – an index that examines educational opportunities, life expectancy, pay equity and the average time spent on housework – in 13 of the past 16 years. Yes, it’s impossible for many women to strike; but can we afford not to?
Women who hit back against abusive partners or commit crimes on their behalf such as handling stolen goods or hiding weapons should be allowed to rely on a new defence of coercion, according to campaigners.
The Centre for Women’s Justice (CWJ) is calling for the change to recognise the “devastating impact” that controlling relationships can have and the lack of legal protection for domestic abuse victims who are driven to offend.
Harriet Wistrich, the solicitor who founded the centre, won a landmark coercive control appeal in 2019 in which her client Sally Challen’s conviction for murdering her abusive husband was quashed. The legal team argued that Challen had been controlled by her husband for more than 30 years before she battered him to death with a hammer.
Now Wistrich is calling on the government to amend its Domestic Abuse Bill, which reaches its report stage in the House of Lords today, to extend coercion as a defence for a range of crimes.
These would include assault against an abusive partner or ex-partner, possession of a controlled substance belonging to an abusive partner, carrying a knife on their behalf, theft offences to pay for drugs and alcohol used by them, and taking drugs into prison for an abusive partner.
Campaigners say that coercive control creates “invisible chains and a sense of fear that pervades all elements of a victim’s life”. While victims can rely on the common law defence of duress, it is harder to prove and they need to be under threat of violence. The CWJ says the law needs to take into account that long histories of abuse can result in violence or other crimes.
Domestic abuse-related offences recorded by police forces in England and Wales rose by 10 per cent to more than 842,000 in the year ending last September, despite overall crime falling in the pandemic.
The government is facing various amendments to its bill to reflect such abuse. A second change, also supported by the CWJ, would give domestic abuse victims the same rights that homeowners have when confronting dangerous burglars. It would allow them to use disproportionate force in self-defence.
Claire Waxman, the victims’ commissioner for London, also wants changes to stop perpetrators using the family courts to continue abusing and controlling their victims. She has called for mandatory annual training for judges and legal staff working in the family courts so they can detect when perpetrators are using legal mechanisms to inflict psychological abuse.
Barristers have revealed that children who have given evidence against an abusive parent are being forced to continue seeing that parent against their wishes.
In one instance a judge ordered parent contact agreements to take place while the victim was at a domestic abuse refuge, revealing its location. The perpetrator was able to stalk their victim and abduct the child abroad.
QotD: “Including parental alienation in legal definition of domestic abuse ‘places victims at great risk’”
Including the “highly troubling” notion of parental alienation in the legal definition of domestic abuse would place victims subjected to violence by their partners at great risk, campaigners have warned.
Peers in the House of Lords – where the domestic abuse bill is being debated this week – have suggested an amendment to the landmark legislation which would include parental alienation in the definition of domestic abuse.
The Children and Family Court Advisory and Support Service identify parental alienation as “when a child’s hostility towards one parent is not justified and is the result of psychological manipulation by the other parent”.
But the concept of parental alienation has been discredited by many experts – with the World Health Organisation having recently dropped the notion from its index and classification.
Claire Waxman, London’s Independent Victims’ Commissioner, told The Independent she was “deeply concerned” by proposals to incorporate parental alienation into the statutory definition of domestic abuse.
Ms Waxman added: “The Ministry of Justice’s own report found that fears of parental alienation allegations are directly suppressing survivors and children from talking about their abuse. Parental alienation does not have an agreed definition or sound scientific basis and by enshrining this vague term, we risk handing perpetrators yet another tool for continuing coercion and abuse.
“The bill could make a greater impact by committing judges and other professionals working in the Family Courts to mandatory annual training on the complexities of domestic abuse so they are better equipped to make safe decisions around contact.
“The domestic abuse bill in its current form fails to protect children from the impact of domestic abuse and must be amended to remove the presumption of contact and to allow children’s voices and preferences to be safely heard.”
Peers spent four hours on Monday discussing the amendment to the domestic abuse bill which has been proposed by Baroness Meyer, Baroness Altmann and Earl Lytton as the legislation begins its Committee stage in the Lords this week.
Recent research found abusive men are winning time with their children by accusing mothers who have won custody of turning their child against them.
The study by Brunel University London found claims of so-called “parental alienation” are growing in the family courts, and this sometimes results in a child being transferred from their mother’s home to live with an abusive father. Allegations of domestic abuse are often not properly investigated and can even be seen by courts and professionals as “evidence” of parental alienation, the report found.
Dr Adrienne Barnett, who carried out the research, told The Independent she was concerned by the fresh proposals to include parental alienation in the domestic abuse bill.
Dr Barnett, who specialised in family law while practising as a barrister for more than 30 years, said its inclusion “could have far-reaching and unintended consequences which have not been assessed or tested by large-scale, generalisable national research or impact assessments.”
She added: “A range of studies conducted in a number of jurisdictions including the USA, Canada, Australia, New Zealand, Spain and Italy, as well as my own small-scale peer-reviewed research into reported and published court judgments, have raised concerns about the impact of parental alienation claims on survivors of domestic abuse and children involved in family court proceedings.
“It would be concerning if parental alienation, a concept with a questionable scientific base, were included in the bill without taking into account or even dismissing systematic, peer-reviewed research.”
The academic noted only two jurisdictions have criminalised parental alienation – Mexico and Brazil – as she explained concerns about the impact of this legislation on victims of domestic abuse have been raised in both places.
Dr Barnett added: “It would be helpful to draw on all this international experience before launching into legislation that may be detrimental to those the bill seeks to protect.”
Last week, the Court of Appeal examined how the family court protects victims of domestic abuse as leading women’s rights organisations warned outdated views of judges endanger survivors and their children.
The government launched a review last November looking at how the family court’s approach to parental access affects the safety of children, with the findings set to be released this year.
Lucy Hadley, of Women’s Aid, one of the largest domestic abuse charities, told The Independent they would be “extremely concerned” if the definition of domestic abuse incorporates concepts which do not have a “robust evidential basis”.
She added: “Parental alienation is increasingly used in the family courts, but there is a dearth of robust evidence to back up the concept or reliable data on its prevalence.
“The ‘pro-contact’ culture in the family courts means that parents are expected to facilitate contact, even if they have concerns about safety. It also means that allegations of parental alienation – where one parent is accused of encouraging their child to resist contact with the other parent –can be taken more seriously than allegations of domestic abuse and other forms of harm.”
Parents can face fines or even jail sentences if they do not make sure their child sees an ex-partner on a supervised or unsupervised visit when court-ordered contact is in place.
Anne Neale, of Legal Action for Women, told The Independent absorbing the concept of parental alienation into the statutory definition of domestic abuse would “open the way for victims who this bill is supposed to protect to be criminalised and for domestic abuse to be decriminalised”.
She added: “Women who report violence – especially sexual abuse of children – not only could have their children removed, because their ex-partners accuse them of parental alienation, but could be prosecuted as perpetrators of domestic abuse.
“This is a patriarchal attempt to turn the clock back to a time when domestic violence and rape in marriage where a man’s right. Parental alienation is fast becoming the default argument of domestic abuse deniers against any woman who raises safety concerns and any child who refuses to have contact with a violent father.
“Parental alienation is not a form of domestic abuse, but is a misogynist tactic used by domestic abusers to continue perpetrating abuse their victim and children.”
This article explores the emergence and development of parental alienation (PA) in England and Wales. It considers the background into which PA first appeared in private law proceedings concerning children in England and Wales, and examines how it progressed in the case law through the changing political and discursive context of private family law from 2000 to the end of March 2019. A clear pattern emerged of, initially, parental alienation syndrome and subsequently PA being raised in family proceedings and in political and popular arenas in response to concerns about and measures to address domestic abuse. The case law revealed a high incidence of domestic abuse perpetrated by parents (principally fathers) who were claiming that the resident parents (principally mothers) had alienated the children against them, which raises questions about the purpose of PA. More recently, a PA ‘industry’ appears to have amassed comprising experts, therapists and lawyers, advocating transfers of children’s care from ‘alienating’ mothers to non-resident fathers, as well as PA therapy for children and parents. While PA has had a chequered history and is not without its critics, it has become part of the discursive repertoire of current family law, with increasingly harsh consequences for women and children.
Family court and abuse professionals have long been polarized over the use of parental alienation claims to discredit a mother alleging that the father has been abusive or is unsafe for the children. This paper reports the findings from an empirical study of ten years of U.S. cases involving abuse and alienation claims. The findings confirm that mothers’ claims of abuse, especially child physical or sexual abuse, increase their risk of losing custody, and that fathers’ cross-claims of alienation virtually double that risk. Alienation’s impact is gender-specific; fathers alleging mothers are abusive are not similarly undermined when mothers cross-claim alienation.
QotD: “What Rich writes about intergenerational tensions and the ways in which women disidentify from both their bodies and other women is remarkable, and tremendously relevant today”
Adrienne Rich’s Of Woman Born was first published in 1976, when I was one year old. Hence it is not the feminism of my generation, but the feminism which my generation was destined to deride. As a postgrad student I’d have taken one look at that book and asked why, if second wave feminists thought biology was not destiny, were they writing about bodies at all? Weren’t we more than walking wombs? Thus I only picked it up five years ago, by which time I’d reached forty and was pregnant with my third child (both shameful acts of biological essentialism, I know). Reading it felt like a slap in the face. “Ha! You thought this shit would never happen to you, but look, it has!”
What Rich writes about intergenerational tensions and the ways in which women disidentify from both their bodies and other women is remarkable, and tremendously relevant today.
“No wonder,” writes Rich, “that many intellectual and creative women have insisted that they were ‘human beings’ first and women only incidentally, have minimized their physicality and their bonds with other women. The body has been made so problematic for women that it has often seemed easier to shrug it off and travel as a disembodied spirit.”
Biology isn’t real, sex is a construct, if you really hated femininity you wouldn’t be a woman at all – all of these current beliefs seem to me already captured in Rich’s words. She goes on to describe how “patriarchal thought has limited female biology to its own narrow specifications. The feminist vision has recoiled from female biology for these reasons”. Of course. We’d rather be “individuals with a cervix” since not all of those are women; some of them are people.
Rich describes herself looking at her own mother and thinking “I too shall marry, have children – but not like her. I shall find a way of doing it all differently”. Who hasn’t thought that, if not about domestic life, then about the feminism itself? After all, if the previous waves hadn’t messed it up so badly, we’d all be free today:
“For it was too simple, early in the new twentieth-century wave of feminism, for us to analyse our mother’s oppression, to understand ‘rationally’ – and correctly – why our mothers did not teach us to be Amazons, why they bound our feet or simply left us […] Thousands of daughters see their mothers as having taught a compromise and self-hatred they are struggling to win free of, the one through whom the restrictions and degradations of a female existence were perforce transmitted. Easier by far to hate and reject a mother outright than to see beyond her to the forces acting upon her. But where a mother is hated to the point of matrophobia there may also be a deep underlying pull toward her, a dread that if one relaxes one’s guard one will identify with her completely.”
You have to believe the women who went before you got it wrong – and that you are fundamentally different – otherwise what’s to stop you ending up in the same place? Where a Karen is hated to the point of Karenphobia there may also be a deep underlying pull towards her, a dread that if one relaxes one’s guard one will identify with her completely.
QotD: “Inequality isn’t something that exists in the outside world. It lives indoors, part of the everyday”
Before lockdown, we were already being sold various Mrs Hinch-type versions of housework as somehow competitive and fun. If women want to polish the bars of their own cage, let them. But to save you watching any of these cleaning “influencers”, let me simply tell you that the answer to any cleaning problem in their world is one word: vinegar.
In mine, it’s also one word: men. Some may wipe down the worktops and do a bit more, for which we must applaud them. Get the pom-poms out. The fact is, though, Covid-19 has taken women’s roles back to the 50s. Women are home schooling, working and doing huge amounts of domestic work. The answer to 50s-style problems may be some 70s-style consciousness raising about gender roles. “Women’s domesticity is a circle of learnt deprivation and induced subjugation: a circle decisively centred on family life,” said Ann Oakley in 1974. If that’s a little too hardcore for you, have some Betty Friedan: “No woman gets an orgasm from shining the kitchen floor.” Damn right, Betty.
But, instead of discussing how gender roles are regressing; how the virus has derailed women’s careers; how childcare is falling apart; how female workers will be hit hardest by the recession; how female academics have turned in far fewer papers than their male counterparts; how, at the end of furlough, redundancy will affect more women; how the gender pay gap is rising – in other words, all the pre-existing inequalities that have been exacerbated by Covid-19 – what do we talk about?
Two things. We continue to have a conversation around gender, which emphasises it as a set of feelings rather than being about often mundane lived experience; and we have, on social media, a ridiculous row over cleaners. Various bright young things declare their sainthood. Either they don’t have cleaners or they pay them the GDP of Venezuela. Only bad women, Karens, boomers, like me, have cleaners, whom we probably abuse. Some of us have been cleaners, but no matter. Working women pay others to look after our children and to do some of the domestic work or we could not do it. Just as men do. And always have done. But men are not attacked for this. Ever.
Ineptitude in the domestic sphere is something that men actually boast about, as if it proves their competence in every other sphere. Isn’t it hilarious? Those men who don’t even know if there is a washing machine in the house. I have interviewed rock gods like this. I much prefer the Joan Collins approach. Apparently, when asked at airport check-in if she had packed her own bags, she answered: “The very idea!”
But the serious part of domestic labour being invisible and somehow personal has huge implications. The absolute tragedy of this crisis is that underpaid care workers in homes have died because care in our own homes is not valued. We are run by people who don’t respect those who do such care in our society, because this is the lowest-status job. Women do it. Immigrants do it. Childcare and the opening of schools has not been a priority because, well, like the laundry, other people do that.
Inequality isn’t something that exists in the outside world. It lives indoors, part of the everyday. A glowing showerhead is not the route to happiness. Yes, lockdown has meant pleasure in the domestic sphere for some, and well done to those who have gussied up their homes and gardens. Yet, with months until all children are back to school, many women are exhausted and will be unemployed by the winter. It is terribly old-fashioned to talk about the domestic labour debate I know, the part about how unpaid work keeps capitalism functioning. Well, it keeps us all functioning. This is why a former prime minister can joke about never having to do it. It’s a sign of power.
How we laugh as we lie back and think of descaling the kettle. How many prime ministers does it take to change a lightbulb? Don’t ask me. How many prime ministers does it take to change the reality of women’s lives? We were on the double shift: work and housework. Now many are on the triple shift: work, housework and schooling. The lightbulbs went out some time ago, and, if we are not to go back to the dark ages, then someone better get some bright ideas and replace the duds quickly.
Judges will be empowered to intervene in cases of domestic abuse to prevent the complainant from being re-victimised by aggressive lines of questioning, as part of a new raft of legal changes announced today.
Victims will also be provided with separate entrances to court buildings and given their own waiting rooms as well as protective screens to shield them from former partners.
The reforms have been announced as the domestic abuse bill goes through its report stage in the Commons on Thursday. Some changes will be incorporated into the legislation.
The additional powers for ‘investigative’ or ‘inquisitorial’ judges to direct the course of hearings rather than following the adversarial approach of British justice will initially be developed in pilot programmes. Judges are being urged to adopt a more continental-style in the way they conduct their courtrooms – intervening and directing lines of questioning rather than merely letting lawyers for each side present their case.
There will also be trials of a “one family, one judge” system where family and criminal proceedings are combined to avoid victims having to relive traumatic experiences on multiple occasions. Judges will also be authorised to ban abusive ex-partners from repeatedly dragging their victims back to court.
An expert panel from charities, the judiciary, family law practitioners and academia have been advising on the reforms. They spoke to more than 1,200 individuals and organisations for a report, “Assessing risk of harm to children and parents in private law cases”, which is also published on Thursday.
Introducing the changes, the justice minister, Alex Chalk, said: “Every day the family courts see some of the most vulnerable in society and we have a duty to ensure they are protected and not put in danger.
“This report lays bare many hard truths about long-standing failings, but we are determined to drive the fundamental change necessary to keep victims and their children safe.”
Adversarial procedures in the family often worsen conflict between parents, re-traumatising victims and their children. Family court hearings sometimes enable abusers to continue hounding their victims through the courts.
The report says: “In reality, [family court] proceedings are brought by one parent and, especially where allegations of domestic abuse or child abuse are denied, are conducted on an adversarial basis where the court has to adjudicate between the two opposing parents, each trying to win the case.”
The Ministry of Justice is also to review the pivotal presumption of ‘parental involvement’ in care cases which encourages a child to maintain relationships with both parents, unless involvement of a parent is deemed to put the child at risk. The review will examine whether the correct balance is being struck between the risk of harm to children and their right to have a relationship with both parents.
The report said many experts involved in the family courts reported that the “pro-contact culture of the courts” coincided with what some see as a “systematic minimisation or disbelief of abuse, and … acceptance of counter-allegations without robust scrutiny”.
Nicki Norman, acting CEO at Women’s Aid, said: “This report marks a major step forward in exposing what women and children experiencing domestic abuse have been telling us for decades.
“The culture of disbelief identified by the panel is a barrier to courts making safe child contact arrangements in cases of domestic abuse. The result is that, all too often, survivors and their children experience the family courts as failing to effectively protect them.”
Nicole Jacobs, the UK’s first domestic abuse commissioner, said: “Problems in the family court are the single most common concern raised with me … and I am glad to see this report published in time to implement its recommendations through the domestic abuse bill.”
Dame Vera Baird QC, victims’ commissioner for England and Wales, said: “This panel of experts has dug deep to understand, and address, the serious harm to domestic abuse victims and their children caused over many years by the presumption of contact, and the intensely adversarial process present in the family courts.
“With children’s voices rarely heard in these proceeding and even more rarely heeded, victims and children are in need of better protections from abusive perpetrators.”
Sir Andrew McFarlane, president of the family division of the high court in England and Wales, said: “We are keen for judges to be fully involved in trialling reformed processes for family cases which involve allegations of harm. We hope that parliament will be able to allocate the recommended resources which are identified by the MoJ expert panel as necessary to implement the proposals.”
Twenty-five years have passed since Kennedy published Eve Was Framed, the groundbreaking precursor to her latest work. And while there has been some change – much of it initiated by Kennedy herself – progress has been halting and deep-seated reform is still urgently needed. “The smell of the gentlemen’s club permeates every crevice of the Inns of Court,” writes Kennedy. And it stinks.
Rape complainants are let down by a largely pale, male, stale judiciary that has struggled to keep up with changing sexual mores – don’t expect a conviction if you’re raped on a Tinder date, warns the QC. Kennedy points out that the opinion of a court (that saying “fuck me harder” while having sex on all fours constituted “unusual sexual behaviour”) “said a lot about [the judges’] own sexual experience and their lack of familiarity with contemporary pornography in which this behaviour is standard”. She also makes the fascinating and chilling observation that porn has radically changed “the repertoire in rape cases” since she first started in practice. “It is increasingly rare for women not to be penetrated anally as well as vaginally and orally.”
Women – whether criminals or victims – are still subject to the most antiquated of double standards. “It is hard to get across the idea that a woman is entitled to have sex with the whole of the football team, but draw the line at the goalie,” writes Kennedy, with characteristic bite. Rape victims have their compensation reduced if they were drunk. Meanwhile, girls are being institutionalised (unlike adult courts, youth courts can sanction behaviour that is not technically criminal but may harm a child’s development) for behaviours that in their male contemporaries would be dismissed as “boys will be boys” but in girls are seen as evidence of dangerous moral turpitude.
It’s a similar story in the adult courts, where there has been a “shocking escalation in the numbers of women being sent to prison” despite the already low proportion of women committing serious offences falling over the same period. The trouble is, says Kennedy, there are “no separate sentencing guidelines for women offenders, and the existing guidelines make next to no mention of gender-specific issues”. This leaves even the more enlightened judges with “a limited range of possibilities” – a problem that has been drastically exacerbated by sustained budget cuts”. Women’s centres have been closed. Curfews for women given community sentences save costs on probation officers “but can leave women vulnerable to domestic violence for the 12 hours per day that they are confined to the house”.
But it’s not just about cuts. It’s also about failing to design the justice system around women’s unpaid work. Little attention is given, writes Kennedy, to things like scheduling probation appointments during school hours, and research has revealed that “women’s childcare responsibilities are impacting on their ability to comply with their community sentences”. And women who fail to comply often end up in prison – “even where the original offence would never have merited a custodial sentence”.