Family Law Proceedings Research Articles

Can GPS Monitoring Be Viewed as a Bodyguard, Rather than a Prison Guard?: The Use of Electronic Monitoring to Reduce the Risk of Cross‐Border Parental Child Abduction

Globally, the number of cases of international parental child abduction has remained consistent in the past decade, despite the array of legal provisions designed to prevent it. The current legal approach is ineffective. Reflecting on the findings of an empirical study on parental abduction from the UK, the article considers a novel solution which aims to protect children at risk of abduction through electronic monitoring. The electronic monitoring of children has negative connotations, particularly its use in the criminal justice system. The article considers whether electronic monitoring, in the context of family law proceedings, could serve a protective rather than a punitive purpose. Such an approach requires a conceptual shift, to view electronic monitoring as a bodyguard for the privileged few, rather than as a prison guard. The article reflects on the use of electronic monitoring in parental abduction cases by the Family Courts and examines the proposal drawing on the rights found in the European Convention on Human Rights and the UN Convention on the Rights of the Child. A rights‐based analysis, as opposed to one constructed solely on the child's best interests in English family law, enables its application in other legal jurisdictions and protective contexts.

"MAMA PAPA PLEASE HEAR ME": THE PARTICIPATION OF CHILDREN IN CHILD CUSTODY MEDIATION IN THE SYARIAH COURTS OF MALAYSIA

The laws in Malaysia uphold the rights of children to participate in family law proceedings, particularly in custody disputes. However, with regard to the practice of mediation (sulh) in child custody disputes, the specific legislation that highlights measures to obtain the views of children is still vague. This paper will discuss the practice of children’s participation during mediation (sulh) in child custody disputes. The study reported in this paper has also highlighted the challenges and the adequacy of legal provisions on the practice of children’s participation during mediation (sulh). The present qualitative study has adopted a library-based research method to collect information, data, and theories from selected materials, including journal articles, textbooks, statutes, and interview methods. It also discussed how children were engaged in court-directed mediation proceedings in the Syariah Court of Malaysia. It has also examined the practice of the Syariah court in accepting the voice of children in mediation regarding decision-making in child custody dispute cases. The examination focused on the relevant legislations and policies relating to children participating in mediation in the context of international legal provisions and Syariah laws. The paper further discussed the analysis of whether the rules and procedures in Malaysia are adequate to sustain children’s participation during mediation. The data were also gathered from interviews conducted with mediators or sulh officers. Finally, the study revealed that interviewing children during sulh sessions at the Syariah Court is common even though there are no clear regulations on the practice. It is suggested that a broader interpretation of the current legislation on the voice of children enables the legality of the practice of accepting children’s voices during the Majlis Sulh. Furthermore, it is recommended that a proper standard operating procedure (SOP) for obtaining children’s views during the mediation (sulh) process is also needed.

A Qualitative Exploration of the Impact of the COVID-19 Pandemic on Parents’ Experiences of Parental Alienation in the United Kingdom

In the aftermath of the global COVID-19 pandemic, it has been highlighted how measures necessary to fight the disease inadvertently exacerbated family violence and placed strain on the judicial system. Across the four countries within the United Kingdom, delays were, and still are, particularly prevalent in family law proceedings, partly due to new breaches in child arrangement orders associated with the pandemic lockdown. The present study therefore examined the experiences of nonresident parents (NRPs) who self-identified as targets of behaviors representative of parental alienation (PA) during the COVID-19 pandemic in the United Kingdom. Using an online survey, 76 nonresidential parents’ responses (92% male;Mage= 45.1 years of age; standard deviation = 7.9) were thematically analyzed. Several themes emerged, including (a) experiences of PA (i.e., risks for children and risks for parents), (b) intimate partner violence (i.e., emotional abuse, physical abuse, and financial abuse), and (c) institutional abuse (i.e., COVID-19, family law, and safeguarding). Specifically, parents detailed several alienating behaviors such as belittling, manipulation, and coercive control, as well as novel forms of coercive controlling patterns, which illustrated how the COVID-19 lockdowns created new opportunities for alienating parents to manipulate the NRP–child relationship. The implications of the results are discussed, including recommendations on improving safeguarding protocols for children with contact orders in place and adopting policy measures to support NRPs. These are also discussed in the context of reforming the justice system utilizing COVID-associated “lessons.”

Un fattore esogeno nelle controversie di famiglia: analisi comparata dell’improprio richiamo alla PAS tra Italia e UK

A comparative analysis of the misuse of PAS between Italy and the United Kingdom: an exogenous factor within family law disputes ABSTRACT: This paper aims to elucidate the dynamics and strategies employed by abusive individuals who exploit gender stereotypes to manipulate the justice system in their favor. Increasingly, courts are unable to adequately protect victims of domestic violence due to the erroneous reliance on counteraccusations of parental alienation, which are artfully raised by former abusive partners. These allegations are unfounded in law and scientifically disproven, yet they are held in enormous esteem by the judiciary. Instead, the courts should be reminded of the careful balancing of opposing interests that arise in the context of family law proceedings. This should be done without disregarding the examination of the concrete case and the overriding interest of protecting the offspring. SOMMARIO: 1. PAS e DARVO: dinamiche e strategie tipiche dei procedimenti di diritto di famiglia - 2. Discriminazione di genere nelle controversie famigliari - 3. La censura della PAS da parte di Organizzazione Mondiale della Sanità e Nazioni Unite - 4. L’overruling della PAS nelle corti della Family Division dell'Alta Corte di Inghilterra e Galles - 5. Il rigetto della PAS nella recente giurisprudenza italiana - 6. Conclusioni.

Losing sight of the abuse: how and why women’s and children’s rights are violated in child contact decisions after intimate partner violence in Europe

ABSTRACT International human rights law sets out the right to life and freedom from torture and ill-treatment. This includes the positive obligation of states to prevent, protect and punish acts of private individuals that threaten the life and limb of another person. Permeating through many areas of law, this duty of due diligence is particularly important for women and children who require protection from abuse perpetrated by intimate partners or family members. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence details these obligations, including in family law. Based on the work of the convention’s independent monitoring body (GREVIO), this article offers a categorisation of factors and mechanisms that thwart women’s and children’s rights in family law proceedings, resulting in unsafe child contact regulation after intimate partner violence. It shows the shared nature of these factors across several European jurisdictions and places them in context with the interpretative work of international human rights bodies and the European Court of Human Rights. Situating the discussion in the context of growing anti-feminist movements seeking to expand patriarchal notions of family authority, it argues for an understanding of family law processes as a setting for human rights violations.

Intimate Partner Violence Survivors' Perspectives on Coping With Family Court Processes.

Although intimate partner violence (IPV)-exposed mothers report distress during family court proceedings, no known research examines what helps them cope. We analyzed qualitative responses from 214 IPV-exposed mothers to the question of who/what helped during family court. Participants described (a) receiving social support, (b) accessing tools and resources, (c) modifying actions, thoughts, and emotions to adapt to a system that is not trauma-informed, (d) being believed/validated, and (e) managing post-separation family life as helpful. Participants also reported (f) barriers to navigating family law proceedings; a few expressed nothing helped. Findings support a trauma-informed, network-oriented approach to supporting family court-involved survivor mothers.

Justice For Survivors of Intimate Partner Violence Conference Report

Domestic violence survivors seeking justice and safety in New York State’s family and supreme courts often encounter a deeply flawed, poorly functioning system that exposes them and their children to further harm. On October 13 and 14, 2022, a coalition of leading nonprofit agencies that serve and advocate for survivors convened a conference in New York City to address these systemic inequities and identify meaningful solutions. During the conference, Justice for Survivors of Intimate Partner Violence: Transforming an Inequitable Family Law System, attorneys, scholars, survivor leaders, members of the judiciary, social service professionals, psychologists and advocates identified key obstacles facing survivors and recommended needed reforms to New York State’s family law system.
 Specifically, the conference focused on widespread inequities in custody, visitation, and family offense cases, which proceed in both the family and supreme courts, and the devastating impact they have on survivors. Throughout the two days, panelists confronted the ways in which these courts fail to provide an effective and equitable system for domestic violence survivors seeking safety and protection for themselves and their families, and identified the most significant challenges they face. In family law proceedings, the stakes could not be higher for survivors and their children, as this inadequate and inequitable system of justice has led to tragic consequences, including death or injury at the hands of abusers, loss of child custody and/or visitation rights, and further trauma inflicted by the litigation itself. Panelists also addressed the egregious under-funding and poor functioning of the Family Courts and the endemic bias woven into these institutions. 
 The Conference included ten keynote and panel presentations addressing significant systemic challenges and potential solutions for survivors of intimate partner violence in the family law system. The Conference featured first-hand accounts by survivors and practitioners, original research presented by renowned experts, and insights provided by prominent sitting and retired judges. Conference panelists drew from materials regarding the intersection of racism, misogyny, and other forms of oppression and its impact on systems, including groundbreaking reports on gender and racial bias in the court system. In addition, each panel provided relevant materials, including scholarly research, reports, studies, articles, statutes and proposed legislation, all of which remain available on the Conference website at https://www.familylaw2022.com/.

The importance of clinician courtroom testimony for children exposed to domestic violence

AbstractChildren exposed to domestic violence account for as many as a third of all children in the United States. Many of these children will seek mental health treatment for symptoms of trauma. The clinicians who provide their treatment are often called as witnesses in family law proceedings, especially child protection and custody cases. Clinicians are often anxious when they receive subpoenas to testify and prefer to avoid testimony. Training about court proceedings, subpoenas and how to prepare for testimony would be beneficial for clinicians and will help clinicians be more confident in the courtroom. Additionally, becoming designated as expert witnesses can only help mental health clinicians provide a greater understanding of the issues encountered by children experiencing domestic violence, and these clinicians can provide recommendations that will take into account child safety without exacerbating trauma symptoms.

Addressing the Problem of Direct Cross-Examination in Australian Family Law Proceedings

Addressing the Problem of Direct Cross-Examination in Australian Family Law Proceedings

“In accordance with age and maturity”: Children’s perspectives, conceptions and insights regarding their capacities and meaningful participation

Embedded within family law proceedings and the United Nations Convention on the Rights of the Child (UNCRC, 1989) there is ambiguity surrounding the terms rights, participation, best interests, and capacity. Research furthering the rights of children is necessitated across academic literature and practice. Across research, literature and practice there is an evident reliance upon age in relation to the participation of children in family law settings. There is considerably limited research regarding strong characterisations of such concepts, and significantly less literature involving the voices of children and their perspectives regarding the topic. This qualitative action research aimed to gather the perspectives of children aged 6–12 regarding concepts relating to their capacity to participate using child-friendly methods of assessment, specifically the use of play, art, and narrative activities. This research aim to explore the research questions, how do children aged 6–12 demonstrate, understand and describe participation capacities, what does capacity, rights and participation mean to them? How can children demonstrate and increase their understanding of complex concepts through the use of child-friendly methods such as narrative, play, and drawing? This research allowed children to meaningfully share their unique perspectives, educated the participants, and provided one further step in actualizing the rights of children. Further, this research has offered recommended various methodologies for future endeavours involving children’s participation.

Health service use of infants involved in family justice care and supervision proceedings in Wales: a longitudinal national data linkage study.

ObjectiveWhen an infant is identified as having suffered or is at risk of suffering significant harm from parents or caregivers, section 31 care and supervision proceedings (s.31, Children Act 1989) may be issued. We examined the healthcare use of infants under one year old subject to these proceedings in Wales. ApproachA retrospective e-cohort study utilising data held in the Secure Anonymised Information Linkage (SAIL) Databank. General Practice records, emergency department attendances, and hospital admissions (non-elective and elective) were linked with family justice (Cafcass Cymru) data between 2011–2020 for all s.31 proceedings (n = 920). By comparing to the infant population not undergoing family law proceedings (n = 18179), regression models examined the incidence and rate of healthcare events between birth and the court proceeding application date. Wider determinants of health were sequentially added (infant perinatal factors, maternal mental health, sex, area-level deprivation). Reasons for healthcare events were also investigated. ResultsThese models showed that infants who were subject to s.31 care and supervision proceedings were more likely to have required healthcare prior to proceedings than the comparison group. A similar pattern was shown for the rate of healthcare events. Even when wider determinants of health were included in the models, this difference was especially pronounced for incidence and event rate ratios for emergency department attendances, [incidence RR = 1.73, CI = 1.52–1.96; event RR = 2.08, CI = 1.82–2.38] and non-elective inpatient admissions [incidence RR = 2.91, CI = 2.57–3.28; event RR = 3.84, CI = 3.31–4.45]. Infants in s.31 proceedings were more likely to require healthcare for injury and poisoning, and other external causes. ConclusionThis is the first population-wide evidence on the health of infants subject to s.31 care and supervision proceedings in Wales. These findings highlight the increased healthcare utilisation for this population. The study helps to build a better understanding of the needs and vulnerabilities of infants in the family justice system.

Adults in private family law proceedings in Wales: characteristics and vulnerabilities.

ObjectivesPrivate law children cases are disputes, usually between parents after relationship breakdown, about arrangements for a child’s upbringing, such as where they should live and/or who they should see. To inform policy and practice, more information is needed about the families involved, including their characteristics, circumstances and vulnerabilities.
 ApproachThis paper presents findings from research by the Family Justice Data Partnership – a collaboration between Lancaster and Swansea Universities – funded by the Nuffield Family Justice Observatory. Anonymised routinely-collected, individual-level, population-scale family justice data from Cafcass Cymru was linked with hospital and GP records, within the Secure Anonymised Information Linkage (SAIL) Databank for 18,653 adults involved in private law proceedings in Wales between 2014/15 and 2019/20 and a comparison group of 186,470 adults not involved in court proceedings, matched on age, gender, deprivation. The proportion of adults in the two groups with several health-related vulnerabilities recorded was compared.
 ResultsAdults involved in private law proceedings were found to have higher prevalence of mental health problems, substance use, self-harm and exposure to domestic violence and abuse than the matched comparison group. Both men and women involved in private law proceedings were between two and three times as likely to have anxiety and depression than their peers in the comparison group. Almost 1 in 6 (15.3%) cohort women and more than 1 in 10 cohort men (10.7%) had a history of self-harm, again indicating a level of vulnerability more than double that observed in the comparison group. The research also revealed greater overall use of healthcare services by adults in private law proceedings, with the largest differences seen in the need for emergency health care.
 ConclusionThis research has uncovered the heightened needs and vulnerabilities of both women and men involved in private family law applications. The findings have important implications for the family justice system, and for health and other services, and need to be considered in relation to the current programme of reform.

Coercive Control in the Courtroom: the Legal Abuse Scale (LAS).

Intimate partner violence (IPV) survivors seeking safety and justice for themselves and their children through family court and other legal systems may instead encounter their partners’ misuse of court processes to further enact coercive control. To illuminate this harmful process, this study sought to create a measure of legal abuse. We developed a list of 27 potential items on the basis of consultation with 23 experts, qualitative interviews, and existing literature. After piloting these items, we administered them to a sample of 222 survivor-mothers who had been involved in family law proceedings. We then used both exploratory factor analysis (EFA) and Rasch analysis (RA) to create a final measure. Analyses yielded the 14-item Legal Abuse Scale (LAS). Factor analysis supported two subscales: Harm to Self/Motherhood (i.e., using the court to harm the survivor as a person and a mother) and Harm to Finances (i.e., using the court to harm the survivor financially). The LAS is a tool that will enable systematic assessment of legal abuse in family court and other legal proceedings, an expansion of research on this form of coercive control, and further development of policy and practice that recognizes and responds to it.

Lay Advisers in Family law Settings: The Role and Quality of Advice Provided on Social media

The study explores the quality of advice offered by lay advisers on social media groups and online forums. The focus is on the online advice provision in relation to child-related cases, which are part of private or public family law proceedings in the context of England and Wales. Since many addressees of such advice are self-represented litigants, it is crucial to understand what kind of support is offered by law advisers, whose professional motivation or level of expertise are underexplored. By drawing on content analysis and discourse analysis, the study reflects on the substantive content and linguistic framing of the advice offered online. The article contextualises the role of lay advisers in light of (1) the challenges self-represented litigants experience when accessing the justice system and (2) the growing popularity of using online resources and social platforms for obtaining legal information and advice.

Mental health service use among mothers involved in public family law proceedings: linked data cohort study in South London 2007–2019

PurposeMental health problems and substance misuse are common among the mothers of children who experience court-mandated placement into care in England, yet there is limited research characterising these health needs to inform evidence-based policy. In this descriptive study, we aimed to generate evidence about the type, severity, and timing of mental health and substance misuse needs among women involved in public family law proceedings concerning child placement into care (‘care proceedings’).MethodsThis is a retrospective, matched cohort study using linked family court and mental health service records for 2137 (66%) of the 3226 women involved in care proceedings between 2007 and 2019 in the South London and Maudsley NHS Mental Health Trust (SLaM) catchment area. We compared mental health service use and risk of dying with 17,096 female-matched controls who accessed SLaM between 2007 and 2019, aged 16–55 years, and were not involved in care proceedings.ResultsMost women (79%) were known to SLaM before care proceedings began. Women had higher rates of schizophrenia spectrum disorders (19% vs 11% matched controls), personality disorders (21% vs 11%), and substance misuse (33% vs 12%). They were more likely to have a SLaM inpatient admission (27% vs 14%) or to be sectioned (19% vs 8%). Women had a 2.15 (95% CI 1.68–2.74) times greater hazard of dying, compared to matched controls, adjusted for age.ConclusionWomen involved in care proceedings experience a particularly high burden of severe and complex mental health and substance misuse need. Women’s increased risk of mortality following proceedings highlights that interventions responding to maternal mental health and substance misuse within family courts should offer continued, long-term support.

The Complex Notion of the Capacity of a Child: Exploring the Term Capacity to Support the Meaningful Participation of Children in Family Law Proceedings

This article aims to explore the concept of capacity as necessitated by provisions within the UNCRC such as articles 12 and 5, which emphasize participation, and the evolving capacities of children. In family law proceedings when children are involved, age and capacity are considered in order to assess if the meaningful participation of that child is accessible. There is limited literature to indicate how the capacity of a child is determined, especially for children who are younger than twelve. Rather than relying on age to gauge capacity levels, this paper provides a unique, interdisciplinary evaluation of capacity through a combination of both legal and child development perspectives. This article aims to use a critical lens and rights-based approach to analyze the current literature regarding the capacities of children and proposes that a deeper understanding of what capacity entails is required in order to ensure the meaningful participation of children.

‘I was punished for telling the truth’: how allegations of parental alienation are used to silence, sideline and disempower survivors of domestic abuse in family law proceedings

This article presents empirical findings from a research study conducted by Women’s Aid Federation England and Queen Mary University of London looking at domestic abuse and the family courts. The study found that allegations of parental alienation were frequently being used during child arrangements proceedings to obscure and undermine allegations of domestic abuse. These findings are presented against a backdrop of a recent revival of ideas around alienation in the family court in England and Wales. The article highlights a growing body of evidence demonstrating the gendered assumptions underlying parental alienation as a concept, and argues that the concept should not be accepted without analysis and understanding of the harmful impact it has on survivors of domestic abuse and their children.

Views of the Child Reports: Key Considerations for Practice Given the Prevalence of Intimate Partner Violence in Contested Separating/Divorcing Families

ABSTRACT In family law proceedings, children’s views are increasingly sought and included in non-evaluative reports, such as Views of the Child Reports. This paper explores the controversial nature of including children’s voices in contested separation/divorce cases and examines the implications of interviewing children given the prevalence, hidden nature, and potential harm to children in cases of intimate partner violence. We contend that voices of children, and their potential exposure to intimate partner violence must be considered during Views of the Child Reports interviews. These factors inform our proposed practice strategies for professionals conducting these reports and our recommendations for future research.

Gathering Perspectives on Expert Approaches to the Capacity and Rights of Children: Working to Inform a Capacity Assessment Tool for Children to Participate in Family Law Proceedings

ABSTRACT Within the setting of custody and access proceedings, when children participate, the involvement of various professionals is often required. This article aims to gather the opinions, and expertise of 11 legal and child development professionals in regards to the current model of the participation of children in custody and access proceedings. Two separate interview guides were conducted with individuals who identified as either legal or social science professionals in order to establish any differences in opinions or experiences within the family law setting. Further, the qualitative interviews conducted with these professionals aimed to gather expert opinions surrounding the capacities of children and the possibility of measuring the capacity of children to meaningfully participate in custody and access proceedings. Additionally, this research aims to gather expert opinions from both disciplines in order to assess if an interdisciplinary approach to meaningful child participation in custody proceedings is advisable or possible. The research gathered themes in regards to current gaps in practice, opportunity for transdisciplinary approaches, child centered methods of assessment, best interests, capacities and rights of children gathered from the professional perspectives and experiences of each participant.

What constitutes a high-quality child custody evaluation? A qualitative analysis

Eleven highly experienced Australian professionals (psychologists, family lawyers, and judges) were interviewed regarding Single Expert Reports (also known as a Child Custody Evaluation CCE) written by psychologists. A semi-structured interview explored their opinion about the role of and weight afforded to the CCE; the value of psychologists as Single Experts (evaluators), what makes a CCE helpful or unhelpful where there are allegations of mental illness, alienation, family violence and sexual abuse; the inclusion of formal risk assessments in reports; and how psychologists could improve the quality of CCEs. Thematic Analysis was used to capture emergent themes from the data. Four major themes were identified. The first three themes explain what components make for a high-quality report: (1) Thoroughness, (2) Transparency and (3) a Pathway Forward. The fourth theme was informed by the first three themes, in that if the above components were done to a high standard, the overall CCE could be given more weight, and be of greater (4) Assistance to the Court. Findings add depth to previous survey data, confirm the essential components of a CCE that make it helpful in family law proceedings, and provide clarification about how psychologists can improve the quality and consistency of CCEs.