"What about my right not to be abused?” Domestic abuse, human rights and the family courts

“I don’t believe I had any rights in court. I don’t believe I had any equality, or any equal rights in court. It never came across like that. We were there to make contact happen between father and child, and that was it” - Anonymous survivor of domestic abuse

The family courts are an obvious venue where human rights matter – after all they make life-altering decisions about children’s lives and children’s safety. They should be a place of safety, where children’s rights are put first and where the concerns and fears of survivors of domestic abuse are listened to and respected. However, recent research undertaken by Women’s Aid and Queen Mary University of London provides a stark reminder of what happens when this is not the case.

At Women’s Aid we launched the Child First: Safe Child Contact Saves Lives campaign in 2016. As a result of our campaign, there has been some progress in making child contact arrangements safer in cases where there has been domestic abuse. However, survivors of domestic abuse continue to raise concerns about unsafe child contact and inadequate understanding of the links between domestic abuse and child wellbeing and safety.

For this reason we decided to partner with Professor Shazia Choudhry at Queen Mary University of London. Professor Choudhry has drawn particular attention to the applicability of the human rights framework to issues of child contact in situations where there has been domestic abuse. Talking to survivors about rights – using plain language around the right to a fair trial and the right to life – helped uncover clear problems with the culture and practice in the family courts that affect the courts’ ability to do justice, safeguard against further trauma and prioritise children’s safety.

Human rights, domestic abuse and the family courts

The European Court of Human Rights has made it clear that domestic abuse will fall within the scope of Articles 2, 3, 8 and 14 of the European Convention on Human Rights (ECHR) and that a state can be held to be in breach of those rights if they have not taken sufficient steps to protect survivors from further abuse.

Under Section 6 of the Human Rights Act (HRA), public authorities – including the family courts – are not allowed to act in a way that is incompatible with the Act, and under Section 3 of the HRA, courts are required to interpret all legislation ‘so far as is possible to do so’ in a manner which is compatible with the Convention rights. This is particularly relevant when the court is faced with survivors of domestic abuse and their children who may be at risk of further abuse as a result of contact and who are in a particularly vulnerable position.

What do the experiences of women in our research sample tell us about human rights?

Survivors told us that they were not consistently being given a safe and fair hearing in child contact cases where there is an allegation of domestic abuse and this prevented them from effectively advocating for their child’s best interests in the family courts.

Some survivors were further abused by their former partner during the court process. One quarter of survivors (24%) surveyed reported that they had been cross-examined by their abusive ex-partner during the court hearings, while three in five survivors (61%) reported that there were no special measures – for example, separate waiting rooms, different entry/exit times, screen or video link – in place in the court despite allegations of domestic abuse in their case. Our research indicates that in these cases, women’s safety had been compromised to such an extent that they were at further risk of abuse under Article 3 of the HRA: the right to be free from degrading treatment.

Women did not feel their cases were heard fairly in the family court, indicating that their rights to a fair trial under Article 6 of the HRA were not being met. They described submitting evidence of domestic abuse that was not considered; a lack of fact finding hearings; poor legal advice; and inconsistencies between the approaches of different judges and other family court professionals. Women felt they were viewed through a lens of gender stereotypes; as over-emotional, difficult, weak or unstable women, and they encountered victim-blaming attitudes.

We found inconsistent understandings of, and use of arguments around, Article 8 of the HRA: the right to privacy and family life. In our sample, it appeared that the rights to family life of perpetrators of domestic abuse were given higher priority by the courts than those of the survivors of the abuse. This is despite the fact that Article 8 rights are qualified rights which may be interfered with in order to protect the rights of another or the wider public interest, unlike Article 2 and 3 rights, which are absolute rights, and cannot be modified in the same way.

Our findings also suggest that Articles 3, 12 and 19 of the United Nations Convention on the Rights of the Child (UNCRC) were not consistently upheld; in some cases the courts had dismissed evidence of child abuse and/or ordered unsafe contact, and the rights of children to have their views respected, best interests considered and to be protected from violence, abuse and neglect were ignored. Over two thirds of survivors (69%) reported that their abusive ex-partner had also been emotionally abusive towards their children, while almost two in five survivors (38%) reported that their abusive ex-partner had also been physically abusive towards their children. Yet unsupervised contact with an abusive parent was most likely to be awarded in the cases in our sample. This reinforced findings from a recent report by Cafcass and Women’s Aid which revealed that unsupervised contact was ordered at the final hearing in almost two in five cases where there was an allegation of domestic abuse (39%).

Survivors’ lack of access to a safe and fair hearing is clearly putting children’s wellbeing and safety at risk. In the most extreme cases, women felt their own and their children’s rights under Article 2 of the HRA: the right to life, had been threatened by the ordering of contact which placed them in unsafe proximity to their former abusive partners, or the revealing of confidential information about their address or location.

What will make the family courts a safer place for survivors of domestic abuse and their children?

Overall, the research highlights the damaging effects of a toxic combination: a lack of understanding of the dynamics of domestic abuse and the devastating impact it has on children, ingrained gender discrimination, and incorrect interpretations of human rights. As a result, we make a range of recommendations. These include:

  • An independent inquiry into the handling of domestic abuse by the family courts
  • Improved education and awareness raising on domestic abuse, human rights, theories of ‘parental alienation’ and equality for all professionals involved in child contact cases
  • Ban cross-examination in family courts of survivors by their abusive former partners
  • Guarantee special measures for survivors of domestic abuse in the family courts
  • Better, empowering, specialist support for survivors of domestic abuse throughout child contact proceedings
  • Take a safer approach to unsupervised contact, with no unsupervised contact for abusive parents where there are ongoing criminal proceedings for domestic abuse

Only by challenging the inequalities and discrimination within the culture of the family courts, and promoting understandings of human rights that apply to all, can we make sure that ‘Child First’ becomes the fundamental approach in child contact proceedings – not just in rhetoric, but also in reality.

Find out more about the report here.

Jenny Birchall, Research and Policy Officer at Women’s Aid and co-author of ‘“What about my right not to be abused?” Domestic abuse, human rights and the family courts’

Fighting for freedom? Conservatism, human rights and discrimination

Held on the 12th June 2018, Bright Blue’s human rights conference Fighting for freedom? Conservatism, human rights and discrimination, was the culmination of a major three-year project exploring human rights policy both here and abroad.

With guidance from some of the most well-respected experts and opinion formers, our efforts have resulted in the publication of three major reports accompanied by three essay collections. We have addressed some of the most pivotal issues surrounding human rights today, all while questioning how conservatives can approach human rights in a meaningful way that truly encompasses traditional conservative values of freedom and truth.

The conference

Fighting for freedom took place at the British Academy, kindly supported by the Equality and Human Rights Commission and Global Dialogue. The conference began with a keynote speech by the Minister for Justice and Human Rights, Dr Phillip Lee MP, who made a critical assessment of the state of human rights in Britain. Reminding the audience of the pioneering role that the UK has played in ensuring the introduction of basic human rights in the last two centuries, he urged conservatives to continue “carrying the torch of human dignity, liberty and empowerment”.

However, Dr Lee criticised an increasing dissociation between conservatism and human rights in the public consciousness. He emphasised the importance of not losing sight of two vital traits; humanity and citizenship. And he stated, above all, the need to “reclaim the true conservatism of Shaftesbury and Disraeli and others and model Britain as a compassionate force for good.” Following this impassioned plea and citing irreconcilable differences over the handling of Brexit negotiations, Dr Lee unexpectedly announced his resignation as Justice Minister.

After Dr Lee’s speech, we hosted two panel discussions, the first on ‘Tackling discrimination in the UK’ and the second, ‘Championing human rights overseas’:

Tackling discrimination in the UK

Bright Blue’s Communications Manager Olivia Utley chaired our first panel. She was joined by The Rt Hon Maria Miller MP, Chair of the Women and Equalities Select Committee, David Isaac, Chair of the Equality and Human Rights Commission, Simon Woolley, Chair of the Government’s Race Disparity Audit Advisory Group and Sir Michael Tugendhat, former High Court Judge and author of Bright Blue’s Fighting for Freedom? to discuss ‘tackling discrimination in the UK’.

David Isaac began the discussion by emphasising the need to cut down on ‘rights inflation’ - a tendency to create more legislation before ensuring the protection of existing human rights policy.

Simon Wooley pinpointed racism as one of the most alarming disregards of human rights in this country today. Speaking of the discrimination felt by the black community, specifically how 40% of those incarcerated in UK prisons are young black men, he reminded the audience that “the race penalty is alive and kicking, and we must find ways to tackle it”. Regarding the targeting of drug use in cities, he also argued that current drug policies “disproportionately target black communities”.

Our third speaker, Sir Michael, Tugendhat, praised the role of the UK in driving forward human rights across Europe, however warned that we are now at risk of falling behind. He expressed worries about the absence of 'constitutionalised rights', leaving equalities open to parliamentary override. It is a critical time, he said, where the “future of the UK’s human rights protections depend entirely on the Government’s EU Withdrawal Bill”.

Finally, Maria Miller MP focused on sexual harassment, an issue that has been at the forefront of discussions in the past year, particularly in the wake of the #MeToo campaign. Pointing out that they are “more rules for companies to prevent money laundering than there are to protect employees against sexual harassment”, she emphasised the need to keep the momentum going in the fight for gender equality.

Championing human rights overseas

Our second panel was chaired by Anna Williams, former Head of BBC World News. To discuss ways of championing human rights overseas, we welcomed: the Rt Hon Andrew Mitchell MP, former Secretary of State for International Development; Kate Allen, Director of Amnesty International; Benedict Rogers, Co-founder of the Conservative Party Human Rights Commission; Anthony Smith, Chief Executive of the Westminster Foundation for Democracy; and Bright Blue’s Director, Ryan Shorthouse.

Benedict Rogers began by telling the audience, “It is in our national interest to promote and champion human rights around the world”. He insisted that he is a conservative because of his passion for human rights, not in spite of it. However, Anthony Smith expressed fears about the state of global leadership, explaining that many of the human rights issues we must tackle have been exacerbated as the link between democracy and prosperity gradually weakens.

Kate Allen argued that the only solution to improving human rights abroad is to ensure that the UK leads the discussion “from the top”. As Allen emphasised, ordinary people all over the world are fighting for human rights under impossible conditions, and it is our responsibility to provide education and support for those in need.

Our Director, Ryan Shorthouse, said that Bright Blue supported the Prime Minister’s vision for a ‘global Britain’, however this could only be possible if the correct funding was in place. With two thirds of Conservative voters supportive of the significant role for human rights in British foreign policy, he stated that “Post Brexit, we must remain a proud signatory on the EU commission of human rights - which is very different from the EU.” Through solidifying strong trade deals and moving away from antagonistic immigration policies, he argued, we can once again lead the way on global human rights policy. The Rt Hon Andrew Mitchell MP supported this point and said that to withdraw from the human rights convention would be absurd. “Britain should show some humility”, he concluded.


Through our Fighting for Freedom conference, Bright Blue provided a platform for some of the leading thinkers and supporters of human rights in this country, and abroad. Our panel discussions did not shy away from the troubles facing human rights today, but also reminded us of the historical role that Britain has played, and must continue to play, in ensuring that equality is achieved, and discrimination wiped out.

Dr Phillip Lee MP: Bright Blue’s Fighting for Freedom? Conservatism, human rights and discrimination conference

It is a real pleasure to speak to you today. Because Conservatism and human rights are two things I ardently believe in and that drive my personal politics. They are why I am here as a Member of Parliament, Minister and a GP. And I see them as being inextricably linked. For me, the recognition of our human rights is what true conservatism is all about.

So I would like to take the opportunity to congratulate Bright Blue on this important discussion. We have a lot of good work to build on in the form of your Human Rights Project. I hope you will keep it up.

I need to say upfront that I am here under slightly false pretences. I am the minister for human rights – but I do not plan to talk much about that brief. Instead, I want to focus on the big strategic question that our Party faces…….
That is: how we advance human rights in the 21st century.
This is an important question.

To answer it, we have to understand how the world and our country are changing.

And we should build on our Conservative tradition of thinkers, politicians, lawyers and Governments who have worked tirelessly to advance human rights. So let me start with some historical perspective.

…We are the party of Edmund Burke, who advocated for the rights of peoples around the world like those in Ireland who were discriminated against because of religion.

…of Sir Robert Peel, our first Prime Minister, who committed to pursue “the correction of proved abuses and the redress of real grievances” in his Tamworth Manifesto that came to define Conservatism.
…We are the party of Benjamin Disraeli, who wrote that “Toryism will…bring back…liberty to the Subject”. His Government extended political, social and economic rights. He laid the foundations for today’s welfare state. His Conservatives hugely reduced the disparity in living conditions between rich and poor.

…of Lord Shaftesbury who ended child labour in mines and brought massive reform to factory working conditions.

…We are the party of Emmeline Pankhurst who was so instrumental in winning the right for women to vote.

…of Sir Winston Churchill who made the enthronement of human rights a British war aim in World War Two. His vision contributed to the founding of the United Nations; the Universal Declaration of Human Rights; and the European Convention of Human Rights. The last of these, of course, having been co-written by the Conservative MP and lawyer David Maxwell-Fyfe.
…And we are also the party of Margaret Thatcher, whose commitment to individual liberty against autocratic rule was instrumental in bringing down the tyranny of Communism in Eastern Europe – a warning of what Jeremy Corbyn’s hard left politics has to offer.

Into that great tradition steps Theresa May. Her inspiring words on the steps of Downing Street when she became Prime Minister in 2016 outlined today’s Conservative mission to fight the “burning injustices” in our own society. “That…..if you’re born poor, you will die on average 9 years earlier than others. If you’re black, you’re treated more harshly by the criminal justice system…. If you’re a white, working-class boy, you’re less likely than anybody else in Britain to go to university. If you’re at a state school, you’re less likely to reach the top professions… If you’re a woman, you will earn less than a man. If you suffer from mental health problems, there’s not enough help to hand. If you’re young, you’ll find it harder than ever before to own your own home.”
At every stage in modern history, the Conservatives and conservatism have carried the torch of human liberty, dignity and empowerment. We have been at the heart of the development and protection of human rights. A legacy that Britain has bequeathed to the world.

So it upsets me that the Conservative Party and human rights are rarely associated in the public consciousness except in negative ways. And some in our party fuel this judgment. These are often the same people who promoted our leaving the EU – an institution that, despite its failings, has done more than any other in recent times to advance human rights in practical ways – and would have us ditch the Human Rights Act.

Those colleagues are wrong. It is not Theresa May…..it is not me…..it is not you who are out of step with Conservative philosophy. It is those who would turn back the tide. Our task is to turn this around. To define a conservative approach fit for the 21st century.
Because our world and our country are changing. This is no longer the world in which Magna Carta defined rights to bring peace to our country; or in which the Universal Declaration of Human Rights defined them to help bring about the post-war peace in 1948.

It is one in which humanity faces new challenges at home and abroad…..The rise of authoritarian regimes, abject poverty, the impact of climate change are all crippling people in other parts of the world. Populist policies, corrosive injustices, and insidious discrimination are pervasive and have taken root in many societies…….. And of course – I hesitate to introduce the subject but cannot ignore it – Brexit.

For me personally, the experiences I have had serving some of our country’s most challenging communities as a doctor and travelling in some of our world’s most troubled places have brought home what some of this means in practice…..

In Britain, this means the lack of social mobility, the dysfunctional families, the scourges of homelessness, drug addiction and criminality, the failure of integration, the decline in personal responsibility – the sheer absence of hope. I have seen all of these things up close and personal – how they corrode our society, how they erode cohesiveness, how they destroy people, families and communities.

In Syria, I saw the impact of absolute poverty, the terror of living under an authoritarian regime and the way good people are left vulnerable to extremism.

And those experiences among others are the foundation of my Conservatism…..

A Conservatism that… seeks to harness the forces that drive human behaviour – love for our fellow beings, and the pursuit of power – to create a secure and just society in which every person is able to get a chance in life – of health, education and employment. To create a society that is fair and free – but in which freedoms are earned because we value our country, our environment, our world. A society in which rights are balanced by responsibilities, for each other and for ourselves.

A Conservatism that… recognises that we must take care of the world we inherit – conserve it – so that we pass something better to our children. We must respect our riches, and each other, and care for our vulnerable. And we must recognise that humanity is the vital bond without which our society, globally and nationally, our communities and our families will disintegrate.

A Conservatism that… people can trust to govern well – in ways that advance us – as individuals, as a society and as a country.
This is a testing time. And our generation will be judged on how we respond. Because our response goes to the heart of the country we want to be…. What we value; how we look after our people; and how we engage in the world to care for our country and our planet.

A first test we face is to create a strong and positive vision for our country after Brexit.

We are rightly proud of our commitment to the rule of law and our strong legislative record to protect individuals’ rights and prevent abuses of power. And it is absolutely right that our Government committed to staying in the ECHR and keeping the Human Rights Act. We also need to look ahead and consider how our legislation – and its enforcement – needs to be strengthened.

We need to recalibrate what we value as a society and consider how we regulate our markets. Because if we let markets decide how society should be governed, human beings become commodities and human values are debased. Some in our Party would have us oversee massive deregulation. Stripping employment and environmental protections along with everything else. Setting up as many trade deals as possible to generate money. This would be an unfair and unjust foundation for our country’s future. And it is not the Conservative way.

Markets have their place. But we have to make sure that they serve humanity, enhance our liberty and dignity. Not the other way round.

We should be guided by the courage, determination and wisdom that Wilberforce showed to end slavery. And that Shaftesbury showed to end child exploitation. They had powerful opponents. Because the end of the slave trade meant the end of a very profitable market that damaged the economy in places like Bristol, Liverpool and the West Indies. The end of child labour and the introduction of compulsory education made life hard for families who relied on income from their children and for factory owners who faced expensive regulation. Tackling those injustices was not the free market choice, nor the profitable choice. But it was the right thing to do. It was the Conservative thing to do.

A second test is how we nurture good citizens. Because if we lose our own humanity, the most perfect systems and legislation are – at best – worth nothing.

Let me share two personal stories with you from my role at the Ministry of Justice.
The first is that of Darren and John. John was born into organised crime. His uncle carried out one of our most famous robberies and at 16 he owned a sawn-off shotgun, which he was pointing at security vans across London. But in prison, thanks to Darren, a prison officer who appreciated John as a person and did not write him off as a criminal, John found out that he could row. He broke the world indoor rowing record. And now he is a law-abiding, professional, Nike-sponsored, leading international triathlete.

The second is about the women who get caught up in our criminal justice system – many of them ending up in prison for relatively minor offences. Remarkably, a few of them each year, usually among the poorest, are there because they have not paid the TV licence. Over half of them come from abusive backgrounds and are victims of domestic violence. I do not want our society to be one that sends these women to prison. I want us to help these women become the valuable members of society that most of them would like to be.
And we will do this. Our women offenders’ strategy will be published soon. And although I would have wanted more money for it, and our society should find the money, I am confident that I have secured the right direction of travel. We will begin to establish a network of residential women’s centres across the country – a better form of detention. One that helps these women to become responsible citizens, supports their families, respects human dignity and protects the weak. It will transform the lives of those it touches. It will be a measure of our humanity.

And looking after our most vulnerable is not the job of Government alone. It is a way of life that every responsible citizen needs to embrace. As our society fractures and religion retreats, we need to reconsider what responsible citizenship means and how to inspire it in our people, our communities and our companies.

A third test is to look beyond our shores. We must be ambitious for our generation – seek to advance the whole of humanity and see clearly that the abuse of human rights is the global crisis of our times. We must be more globally engaged. Because in our interconnected world, our actions affect others and ignoring problems overseas quickly brings them to our own shores.

It is to our shame that we are presiding over the highest levels of global human displacement ever. That 65.6 million people have been forced from their homes. That over half of our 22.5 million refugees are children under 18. That 10 million people are denied basic rights because they are stateless. Each of the world’s refugee crises is the result of a failure to protect human rights.

We must deal with tyranny. Because tyranny only begets tyranny. And it is always those that least deserve it that suffer most.

But you cannot bring freedom, justice and peace with high-tech weaponry – and I have previously opposed that course of action in Syria in 2013. The right focus for our effort is human security. And that needs to be pursued by empowering people. Military intervention has its place. But it must be used to create – not destroy – human security.

And here we need to be honest about where we still fall short. The Universal Declaration declares “periodic and genuine elections…by universal and equal suffrage” to be a human right. And regimes in every corner of the globe make a point of holding elections. But just holding elections does not empower people. Votes need to be meaningful. People must have a real choice and be able to make a difference.

So we must make better use of the levers we have for effecting change and use all our ingenuity to create new ones. Many countries still look to Britain to show the way and we have a responsibility to step up.
To conclude….

We should not lose sight of the fact that human rights in this country have moved on immeasurably in the last 70 years. This touches us all – young and old, regardless of gender, age, religion, ethnic background. For we all have protections that were unimaginable when Churchill made the enthronement of human rights a British war aim. The very air we breathe is better because we now recognise clean air to be a basic human right.

But we must not be complacent. The challenges that our generation faces are no harder and no easier than those that previous generations have overcome. Britain used to lead the way in protecting and expanding human rights. That is no longer true today. The cause is too often twisted to serve other agendas or selectively applied to some groups and not to others…and this is as true in our own country as elsewhere.

For me, it is simple. Respect for humanity, human dignity and human rights should guide all of our policy – at home and abroad – and every aspect of how we govern. Not just because that is right. But because that is what brings the security, prosperity and human advancement – physical and spiritual – for which we all strive and that is the fundamental point of human existence.

Brexit offers us the chance as a nation and a Party to look at what sort of country we want to be. For me, the choice is clear: we must reclaim the true conservatism of Shaftesbury and Disraeli and others and model Britain as a compassionate force for good.

So the discussion that you have started is vital. We must embrace it and use it to map the future for our Party, our Government, our Country – and our world.

Let’s make sure we are on the right side of history in the finest Conservative tradition – leading the way on liberty, dignity and justice.

And so my challenge to you – to this conference – is to reclaim our Party’s title as a great global champion of human rights…. In fact, to be the greatest! That means standing up to those – particularly within our party – who want us to move away from that path.

Before I finish, I want to make one final point….

The essence of a conservative approach to human rights is the Burkean principle that our institutions guarantee those rights. Most important of all, a Government’s first responsibility is to protect its citizens. This is usually understood in military terms but I believe it applies more generally. It means that sometimes, when a majority of our people wants something that is against the good of society, Government and Parliament have a responsibility to protect us. This was the case with the death penalty when for decades politicians went against the majority view and refused to reinstate it. Now I believe it needs to be the case with Brexit.

I believe that the evidence now shows that the Brexit policy our Government is currently pursuing on the basis of the 2016 referendum is detrimental to the people we are elected to serve. Certainly, it now seems inevitable that the people, economy and culture of my own constituency will be affected negatively. And I cannot ignore that it is to them that I owe my first responsibility as their Member of Parliament.
Today, as many of you know, MPs are voting on the House of Lords’ amendments to the EU Withdrawal Bill. In particular, there is one amendment which – if it is adopted – will empower Parliament to take back control of the process, if necessary rejecting a bad deal and directing the Government to re-enter discussions, extending or pausing negotiations which are being badly rushed because of the deadline that Article 50 imposes.

It is fundamentally important that Parliament should have a voice so it can influence the final outcome in the interests of the people it serves. A fake choice between a ‘bad deal’ and a cliff-edge ‘no deal’ – a vote between bad and worse – is not a meaningful choice. It would breach such fundamental principles of human rights and Parliamentary sovereignty that we would not recognise it as being valid in other countries. It is not one that our Parliament should accept.

If it comes to it, my Parliamentary colleagues and I will have to ask ourselves whether we can vote in our own Parliament – that bastion of liberty, freedom and human rights – in favour of something that we would rightly criticise elsewhere. For me, the answer will be….I cannot….

That is why I urge our Government to do the right thing and amend the legislation to ensure that Parliament is properly able to exercise its duty to our country and our constituents by ensuring we are not stuck with a bad deal or no deal.

It is hard to be part of a Government that would countenance the breach of such fundamental principles – and it is important that individual ministers and Parliamentarians should be able to speak up. But effective Government in our country also relies on the important principle of collective responsibility. So I am very sad to have to announce that I feel I must resign as a minister so that I can properly speak out for my country and my constituents……..

I really have finished now. I will be issuing a statement shortly. And so you will forgive me if I get on with the important work that is ahead and go straight back to Parliament to represent my constituents and my country. Thank you……