Listening, believing, protecting: lessons for private family law in child sexual abuse cases
People:
Despite the widespread harm of child sexual abuse (CSA) and the repeated institutional and individual failures to effectively respond to it to protect children (IICSA, 2022), the research evidence base in this area remains surprisingly limited. As the family justice system moves towards more child-focused courts, now is an opportune time to ask how those courts can best respond to cases involving CSA.
Researchers at the University of Oxford and University of Essex spoke to professionals and people who had experienced the family court as children to explore how family justice processes were experienced in CSA cases. The research identifies key areas for reform and further research in private family law.
These CSA cases concern decisions about children’s welfare, living arrangements, and contact. In recent years, considerable attention has been paid to the experiences of victim-survivors within private family law proceedings. The Harm Report highlighted concerns about how risks of harm are identified and managed in cases involving domestic abuse and called for further research into how children’s voices are heard within family court proceedings.
What does our research show?
A key theme was that participants did not feel they were heard or believed when they disclosed abuse:
‘how can you sit there and say that a 6-year-old is lying about being abused or sexually abused?’ [Rachel]
This, and other research narratives, highlighted that participants felt that CSA allegations were not always believed by professionals in the family justice system – something reflected in other research – with reasons including unwillingness to believe sexual abuse exists and discomfort with the topic (Hunter et al., 2020; IICSA, 2022). This perception of children not feeling heard or believed highlights the need for the new child-focused courts to expressly engage with the harm of CSA and consider how judges and professionals ought to respond to it.
There was also a sense that, as children, participants did not feel they were adequately informed by professionals about the family justice process following CSA disclosures – even in ways that would have been age appropriate. For example, even where participants ultimately did not have continuing contact with the abusive parent, they did not understand what the role of their evidence was and how it was used in the case, which impacted on them not feeling believed.
Related to all of this was a sense that harm was minimised in private family law proceedings and that the family justice process itself contributed to trauma:
‘it’s a massive trauma in itself and the court system and that whole process is another trauma, so a lot of it’s kind of smooshed into one big thing of emotion and numbness.’ [Poppy]
‘in private law proceedings, there’s a minimisation of harm in general. So I think child sexual abuse and domestic abuse. I think there's a sort of sense of a hierarchy between public law proceedings where there are real meaty issues and dangers for children. And that’s where the courts should be using their time.’ [Solicitor 3, focus group 2]
‘the one thing they’ll [young people who have been through the family court] say to me is, more than anything, the thing that’s been distressing is being torn away from their mothers … that’s what stays within their memory.’ [Child welfare professional 1]
Another recurring theme was the importance of children’s participation. The research highlights the challenges professionals face in ensuring that children are heard in a meaningful way while avoiding placing inappropriate responsibility for decision-making on them or retraumatising them:
‘They wouldn’t let me [go in the courtroom] ... Told me I was too young. “You wouldn’t understand what’s going on in the court.”’ [Rachel]
The research additionally draws attention to broader systemic issues, including evidential challenges in CSA cases, the interaction between family and criminal justice processes, and the importance of effective communication and support for children throughout proceedings. For example, the perceived need to balance protecting children from harm while ensuring fair decision-making for all parties can impact upon how children’s CSA disclosures are responded to in the justice system. One aspect of this was the use of counter-allegations against the mother where there were CSA disclosures:
‘one of the biggest bugbears that I have at the moment is the amount of deflection on to the mother. So rather than saying the child is saying this because they may have been abused, there is a very early assumption that the child is saying this because of alienating behaviours or because the mother is mad or bad in some way or that she’s been sexually abused as a child and so on. There’s a huge deflection on to the mothers.’ [Solicitor 1, focus group 1]
This highlights that a child’s disclosures may not be sufficient to lead to a finding of fact that abuse took place, which then has implications for protecting that child’s welfare:
‘It’s definitely sexist [the judge] because they assumed my dad was in the right. They didn’t want to see that my mum was protecting me and wasn’t a wicked old witch who wanted to steal away the children.’ [Jude]
If allegations of CSA are routinely responded to with counter-allegations of ‘alienating behaviours’ then this shifts the weight of focus from the child’s disclosures and evidence-gathering about those disclosures on to the mother’s behaviour and influence over her child. It is already difficult to gather and present evidence regarding CSA where young children are involved, such that if professionals also have their focus shifted away from CSA as the primary harm, the child’s voice regarding their disclosures can become lost in that process.
Key recommendations for policy and practice
The report’s recommendations are particularly relevant given ongoing family justice reform. Recommendations include hearing directly from children through direct forms of participation and finding out how children want to participate through further research with them, as well as giving children access to courts and representation directly.
We also recommend that there should be a consistent point of contact for children throughout proceedings and the development of more child-friendly environments for engagement with children.
Finally, children should be informed, supported and protected by giving them clear, age-appropriate information about the purpose of their involvement, the role of their evidence, and the reasons for any decisions made in their case. The Ministry of Justice should also ensure the provision of access to specialist CSA support services within child-focused court models.
Some of these changes can be implemented swiftly within the parameters of the child-focused courts roll-out. For a further summary of the recommendations we have produced a short video.
Looking ahead
One of the report’s most important conclusions is that significant gaps remain in the evidence base. We still know relatively little about how often CSA allegations arise in private family law proceedings, how such cases are resolved, and how children experience these processes over time. As the family justice system continues its transition towards more child-focused approaches, this research provides a useful point for continuing discussions in the CSA context.
For professionals across the family justice system, the research offers an opportunity to reflect on how children experience proceedings and how future reforms might better ensure that children’s voices are heard, understood, and appropriately incorporated into decision-making. For further information about the research, contact the lead researcher Dr Jaime Lindsey at jaime.lindsey@law.ox.ac.uk or view the full research report.
References
Independent Inquiry into Child Sexual Abuse, Final Report, (2022) available at: https://webarchive.nationalarchives.gov.uk/ukgwa/20221215051709/https://www.iicsa.org.uk/key-documents/31216/view/report-independent-inquiry-into-child-sexual-abuse-october-2022_0.pdf
Hunter R, Burton M and Trinder L, Assessing Risk of Harm to Children and Parents in Private Law Children Cases: Final Report (Ministry of Justice 2020) available at: https://assets.publishing.service.gov.uk/media/5ef3dcade90e075c4e144bfd/assessing-risk-harm-children-parents-pl-childrens-cases-report_.pdf