5th December 2023

When Sarah finally got up the courage to leave her cruel, manipulative husband, she hoped her life would get better. A middle-class professional, she had been belittled by him for so long that she had come to believe she was the problem. If he could no longer turn his rage on her, she hoped, he might enjoy their three children more — and she arranged for them to see him regularly. But it didn’t take long before two of the children started saying they were scared and didn’t want to see him. At which point the father took her to court, claiming that she had turned them against him, and demanding full custody.

Sarah (not her real name) entered the looking-glass world of the family courts — a world in which, it turned out, whatever you say can be used against you. If she told the court her husband was abusive, her solicitor advised, the judge might think she was making it up. If she said her children were afraid, she could be accused of alienating them from their father. And then she might lose them altogether.

“I only hung on to my children because I kept paying for lawyers,” she says. She forced them to see her ex-husband, even though her youngest would scream and hide before every visit. He brought hearing after hearing, first to try to get the children, then to get her money. After she sold her house, and was virtually penniless, this seemed to defuse things: he moved away. His visits with the children had been always erratic, she says: his attacks had been about her, not them.

“If I were not an articulate, literate woman with a strong family safety net,” she says now, “the court process that my abusive ex-husband used to perpetuate his abuse would have had terrifying, possibly fatal, consequences for me.”

55,000Approximate number of families who end up in court disputes each year

Fatal consequences? According to researchers at the University of Manchester, dozens of children in England are being forced to keep in touch with fathers accused of abuse, including some who are convicted paedophiles. The effects on the health of their mothers can be devastating, including thoughts of suicide. While the study of 45 women has not yet been published, a concurrent BBC investigation reported that one mother killed herself after being accused of parental alienation — in other words, of having manipulated her child into becoming hostile towards the father. The term is controversial, but seems to be increasingly used in recent years.

Who should we believe, in these heart-rending cases, when it’s just one person’s word against another’s? As a journalist, I started writing about the family court system of England and Wales many years ago, exposing how children were being removed from families, on sometimes scant evidence. My campaigning led the government to change the law in 2009, to give accredited journalists access to family courts. But I never wrote about parental custody battles, because I could only ever hear one side of the story.

One case still haunts me: that of a mother who had lost custody of her only daughter to her former partner, who she was convinced was a paedophile. The girl would come home from staying at his house pale and anxious, she told me, and be afraid to go back. But when the mother went to court to stop him having overnight contact, a court-appointed expert claimed she had coached her daughter to lie. A judge gave the former partner sole custody of the child.

This story was so horrific that I didn’t want to believe it. But now, there are growing concerns that family law is not properly protecting children from abusive and controlling parents.

Every year, about 55,000 families end up in the family courts — civil courts that try to resolve family disputes over children or finances. More than half of these cases will involve allegations or actual evidence of domestic abuse. The vast majority of alleged abusers are granted contact with their child, mostly without that contact being supervised.

“The family court is the biggest issue in my inbox,” says Labour member of parliament Jess Phillips, the party’s spokeswoman on domestic violence and safeguarding. “We have got to the point where any woman who tries to protect her child from a violent partner will be accused of alienation and that will work against her”.

Another Labour member of parliament, Taiwo Owatemi, told a parliamentary debate this year about a constituent who had been granted sole custody of her son after escaping a violent ex-husband, only to lose him after being accused of alienation. “Thanks to the deeply embedded pro-contact culture of Cafcass [the Children and Family Court Advisory and Support Service, a non-departmental public body],” said Owatemi, “an eight-year-old boy is now in the clutches of a man who beat and sexually assaulted my constituent.”

Is the system biased against mothers? Matt O’Connor, founder of campaign group Fathers4Justice, argues that it’s the other way. “I’m not comfortable with these media stereotypes of mothers as victims and fathers as perpetrators,” says O’Connor, who has spent two decades supporting fathers in court battles. “The vast majority of applications in private law proceedings are from desperate dads just trying to see their kids.” He also thinks that some claims of domestic abuse are driven by the fact that it is now almost the only way to get legal aid. “A lot of women game the system,” he says.

Stopping a parent from seeing their child is one of the most draconian things the state can do. So there is, rightly, a high bar. The Children and Families Act 2014 requires the courts to presume “that involvement of [each] parent in the life of the child concerned will further the child’s welfare . . . unless there is some evidence . . . to suggest that [this] would put the child at risk of suffering harm”. But harm is not defined, and a finding of domestic abuse is no bar to contact. Judges face the challenge of trying to balance the risk of domestic abuse, against the less tangible harm of there being little or no relationship.

In 2020, the Ministry of Justice published the report of an expert panel that had taken evidence from more than 1,200 people, both fathers and mothers, who had direct experience of private law children’s proceedings in England and Wales. The report warned that the “pro-contact culture” of the family courts may be resulting in the “systemic minimisation of allegations of domestic abuse” and a pattern of “selective listening”, whereby children who want to see both parents are listened to, but those who do not wish to have contact “are not heard or are pressured to change their views”.

One father echoed this sentiment, telling the panel that he and his children had “been subjected to years of direct abuse, with indirect abuse through the court system also being used as a weapon of intimidation. The result after years of this, was long and intensive therapy to overcome the trauma. The financial harm has also been devastating and almost at the age of 50, I feel my life has been ruined by an unjust system.”

In the 10 years up to 2017, direct contact was allowed in about 90 per cent of cases that involved allegations of domestic abuse. That seems a very high number, even if you assume some of the allegations were untrue. “Direct contact” includes seeing the parent at a centre where the meeting is supervised — but in most cases there is no restriction. (“Indirect contact” can mean nothing more than being allowed to send a birthday card and a Christmas card, which is really no relationship).

Black, Asian and minority ethnic women seem more likely to experience their children being ordered to live with the abusive parent, according to the expert panel. In evidence, the charity SafeLives described a case in which “the perpetrator argued that because the victim was living in refuge she was homeless and couldn’t offer a stable environment. The judge agreed and gave residency to the perpetrator as he was in work and had family to support him. The victim returned to him soon after, stating she couldn’t leave her children with him knowing what he was like.”

“The whole attitude of the courts”, says Sarah, “is ‘stop bickering’. They don’t seem to understand what coercive control is like.” Her children were interviewed by an independent social worker. “They had to sit there and talk about their father who they’re frightened of. They kept asking ‘will it get back to Daddy?’ The social worker said it wouldn’t, but of course it did.”

Asking a third party to assess a family is a rational response from courts trying to gauge the truth. But the experts who give evidence in trials are not always what they seem. In medicine, a professional title (paediatrician, surgeon) means that someone is qualified and regulated. In the family court, “clinical psychologists” are trained professionals, who are registered with the Health and Care Professions Council (HCPC). But anyone can call themselves a “psychologist”, and recommend therapy from which they may financially benefit.

In 2020, a court heard the case of two siblings who had been living with their mother under a shared custody agreement, until one started refusing to see the father. A “psychologist” expert reported that the children had been alienated from their father by their mother, and recommended that the family undergo therapeutic intervention. The children were transferred to their father’s care and the expert and two therapists recommended that the mother should not see the children at all for at least 90 days.

To impose such a severe order, you’d assume that a court would be very sure of its evidence. But when the mother appealed, the chair of the Association of Clinical Psychologists submitted a letter saying that the expert was not qualified to make diagnoses. The mother’s barrister alleged that the expert had a business relationship with one of the two therapists, who would stand to profit from the therapy. Even more sinister, the court kept the expert’s name secret. It was only revealed after a legal challenge by The Observer newspaper.

This situation is not unique. The Association of Clinical Psychologists says it is aware of several cases in which “psychological experts” who were not HCPC-registered have suggested inappropriate diagnoses and made recommendations for children to be removed from their mothers based on these diagnoses.

In February, Andrew McFarlane, President of the Family Division of the High Court, heard an appeal by another mother whose children were removed from her custody after being assessed by a “parental alienation expert”, who had been described to the previous court as “Dr A”, but was actually just plain “Ms A”. In his judgment, “Re C”, McFarlane wrote that the expert’s CV was “a diffuse and confusing narrative of attendance at courses and other activities.”

McFarlane advised that there was a “need for rigour” and “clarity” when courts appoint expert psychologists. He stopped short, however, of saying that judges should only appoint regulated experts. This, he said, was “a matter for the psychological profession — and ultimately parliament”. The issue is now stuck in limbo, with government ministers saying it is up to the judiciary to select experts.

Private law family proceedings seem to be something of a wild west. Cris McCurley, a partner at solicitors Ben Hoare Bell, says government cuts to the justice system are having a “horrendous” effect on children. Some courts have closed, which puts more burden on others; few lawyers can afford to work on legal aid, and it can take months to get a hearing. Once in court, “there is pressure to get everyone to agree, and not to have a fact-finding”. She says this can be especially detrimental to genuinely traumatised abuse victims, who may struggle to give a clear chronology of events.

The effect on children can be appalling. “I was entirely failed by the Family Court,” one abuse survivor told the expert panel behind the MOJ’s 2020 report. “Contact was enforced at centres where my father managed to be abusive even under supervision.”

“He made threats quietly so supervising women could not hear, employed toys to appear to be playing with me whilst using them to make up violent and macabre scenarios that he would relate to me. I would say that I was going to tell the adults and he would reply ‘No one will believe you’. Unfortunately this was absolutely true as all this information was fed back into Family Court hearings where my mother was vilified as making them up . . . I very clearly recall standing in the doorway of the centre screaming and refusing to go in. The case notes show this behaviour was attributed to my mother’s ‘coaching’, ie she was teaching me to do this. She was not.”

What is staggering is the lack of information available about decisions that are made, and their long-term effects.

“No one’s kept any records to prove whether what happened was in the child’s best interests,” says O’Connor of Fathers4Justice. “Every child is in effect subject to an experiment from an unelected, unaccountable judiciary.”

This is partly because of the need to preserve the privacy of children, whose lives have already been made hellish enough. But there is also a cultural resistance to transparency according to Louise Tickle, an investigative journalist who has used the 2009 legal changes to the full, and has sat in many courtrooms.

The adversarial culture, she says, can be “pulverising for both parents. The tone, the sneer, and the undermining of them both as decent people. I have found myself sometimes physically unable to watch. In a criminal trial, the police have to convince the Crown Prosecution Service to bring a charge. In the family court, a parent just makes an application — which can then be weaponised.”

What can be done? Campaigners want to see more judges and magistrates trained in domestic abuse and coercive control, better co-ordination between agencies, a ban on unregulated experts and a more investigative approach to child proceedings. Rather than a couple spending three years in court, the truth about alienation or domestic abuse might be more easily discovered in three weeks by an experienced social worker living with a family. But none of this will happen unless the justice system is properly funded.

As for Sarah, she is now trying to rebuild her life. Her daughters are deemed old enough to make up their own minds. “The courts simply don’t have the time to look under the lid of a situation,” she says. “They go with what they are presented with in a few hours. I’m articulate, I don’t fall apart, but none of that is to do with me being a good mother. What about mothers who are less eloquent? There is something very, very wrong.”

Camilla Cavendish is an FT contributing editor and a former head of the Downing Street policy unit

Find out about our latest stories first — follow @ftweekend