Why does a justice system that convicts a husband of assaulting his wife put lives at risk by giving him access to their child, asks Dani Garavelli
Stephanie enters the kitchen of the sprawling farmhouse where she now lives with her parents one shaky step at a time. Slowly, painfully, she manoeuvres her zimmer frame towards the table and eases herself into a chair.
Stephanie, 33, has suffered from Lyme disease since she was a teenager; more recently she has been diagnosed with PTSD . Sometimes, when she is particularly stressed, her whole body goes into spasm.
She knows speaking to me will exhaust her physically and mentally; she knows it is unlikely to change her own situation. But she is determined to tell her story: to highlight the way the justice system in Scotland continues to fail victims of domestic abuse, and to push for an overhaul of family courts.
Stephanie’s story is complicated, yet it will be familiar to many women who have experienced domestic violence and some of the myths around it. It starts back in late 2011 when Michael, a man she had known in school, moved into her west coast home. Michael had one conviction for domestic violence against a previous partner and several for drugs-related offences. He moved in, Stephanie claims, because he had been thrown out of his mother’s house and had nowhere else to go.
Sitting with a folder-full of documents in front of her, she says the power dynamics were askew from the beginning. She had been ill for years and Michael was effectively her carer; she relied on him for support, even when he was calling her “a cripple”.
“He knew I had a weakness on my right side,” she says. “He would attack me and leave me on the floor so I would have to beg him to help me up.
“Other times he would get me up in the early hours to watch The First 48 [a documentary about murders]. I felt like a prisoner in my own home, but I didn’t tell my family because I was scared he would hurt them too.”
Some of what Stephanie alleges is contested. She claims, for example, that Michael would threaten to self-harm if she left him; he denies this. But it is clear, from his later convictions, that the relationship was volatile and that he lashed out at her.
There were, she says, many violent rows. On 5 October, 2012, he grabbed her by the throat and threw an ashtray at her. On Valentine’s Day, 2013, he threatened to rape her.
The day Michael choked her, she went to the police, but left after she was told she was being hysterical. That same year, Stephanie became pregnant with their son, Ryan, now five. She says she wanted her mother to be her sole birthing partner and that Michael insisted on staying with her during labour and in the ward afterwards.
They returned home, but in January 2014, when Ryan was around 10 weeks old, Michael pushed her on to a couch while she was breastfeeding. For the first time, she told her parents, Matthew and Elizabeth, what was going on and Matthew forced Michael to leave.
For the next two months, Michael had regular contact with Ryan, with Stephanie’s agreement and always in her presence. But that summer, Michael decided he wanted unsupervised access. Stephanie refused and Ryan was the subject of several child welfare hearings.
To Stephanie’s distress, the court decided Michael should have supervised and then unsupervised access. She and Elizabeth claim Ryan’s behaviour deteriorated; he started mimicking his father’s alleged self-harming, hitting himself on the head.
Michael denied this: however, in October 2016, Stephanie’s then lawyer received a threatening phone call which was traced to Michael’s mobile phone number. No police action was taken, but all contact between Michael and Ryan was ended by the court.
In the meantime, Stephanie had gone to the police to complain about Michael’s abusive behaviour when they were living together. He was charged with six counts of domestic violence, all of which he denied.
At his trial in March 2018, he was convicted of three charges for which there were witnesses or other corroborating evidence and was fined £1,200.
The lack of a custodial sentence came as a blow to Stephanie. But worse was to follow. Within a few weeks, Michael had launched a fresh attempt to gain access to Ryan. He was granted legal aid and a series of “proofs” took place in a Family Court, four doors down from the one in which he had been convicted.
This time, Stephanie found herself under attack. Though the sheriff in the criminal case had said he did not believe the testimony of Michael or his mother (who gave evidence in his defence), Michael’s lawyer and advocate cast her as a liar.
In her judgment, the sheriff said she found much of Stephanie’s evidence unbelievable. In a statement that appeared to ignore the fundamentals of domestic abuse, she said she found it “incredible” that Stephanie would have found it difficult to leave Michael after Ryan’s birth because she had supportive family living nearby.
The sheriff refused to accept Stephanie’s diagnosis of PTSD because it was made by a private psychotherapist; and she said she did not perceive her as “vulnerable”.
After receiving a report from a consultant psychologist who had observed Michael and Ryan interacting, she ruled contact should be resumed, under supervision at first, then progressing, over a period of months to unsupervised meetings and eventually to overnights.
Since receiving the judgment in January, Stephanie’s condition has worsened. She spent several weeks in hospital after spasms in her legs prevented her from walking; her mental health has also deteriorated.
So far, she has not complied with the contact order or attended appointments at the Relationship Scotland centre. As a result, Michael’s solicitor is preparing to bring contempt proceedings against her. But Stephanie is adamant she will never hand her son over to a man who – rightly or wrongly – she sees as a risk.
“I have never believed Michael was interested in seeing Ryan,” she says. “I think the court action is another way of exercising control over me. He has already done so much damage; I will not let him damage Ryan. I will go to jail before I’ll hand him over, because it’s my job to protect my son.”
Stephanie’s experience is disturbing, but by no means isolated. Domestic abuse expert Mhairi McGowan, formerly head of ASSIST and Domestic Abuse Services, Community Safety Glasgow – says a gap in understanding between the criminal and civil courts means week in, week out victims of domestic violence are being forced to hand over children to abusive ex-partners.
In the criminal courts, the message to women is that their complaints of domestic abuse will be taken seriously; in the family courts, however, the position on access appears inconsistent, with some jurisdictions seen as prioritising contact with both parents despite previous convictions for domestic violence.
“There’s a researcher, Marianne Hester, who talks about the three planet model: there’s the criminal justice planet, the child protection planet and the domestic violence planet, and they all operate individually,” says McGowan.
“The problem comes where there’s an intersection. In the domestic violence world, we are saying: ‘Report, report, report – everyone will take you seriously,’ and in Scotland, the new domestic abuse law backs that up. But in this case, and in many others, you have the sheriff in the Family Court saying it is really important the child sees both parents.
“The Family Court should be looking at whether contact with both parents is safe but, in my opinion, there is not enough focus or knowledge about what’s happening in the domestic violence world.”
Over the past few years, there has been an increasing recognition that domestic abuse can involve psychological as well as (or instead of) physical violence. Brothers Luke and Ryan Hart – whose mother Claire and sister Charlotte were murdered by their father – have been raising awareness of the ways in with abusers may control their partners by limiting their access to money, tracking their movements and isolating them from their family and friends.
In an ideal world, all children would be able to forge a relationship with both parents, but domestic abuse experts believe some fathers are seeking contact through the family courts as a means of continuing to exert coercive control.
“Children should have access to both parents if it is safe to do so. But unless the courts have a robust system of appropriate risk assessment and appropriate training and knowledge then we shouldn’t be handing over children to those with a history of domestic violence,” says McGowan.
In England, the Domestic Abuse Bill, which would have criminalised coercive control, was dropped as a result of the proroguing of Parliament, although Boris Johnson has promised to reintroduce it in the Queen’s speech on 14 October.
The Westminster government has also been carrying out a review of family courts in England and Wales in response to campaign groups such as Women’s Aid complaining they push contact “at all costs”, with some children dying as a result.
The Sunday Mirror has set up a campaign to change the law so no-one convicted of violent crimes, child abuse or sexual offences has access to their children (as already happens in New Zealand).
Under its plan, unsupervised contact would only be granted if the ban was overturned by a judge after the parent passed a strict risk assessment by domestic violence experts.
According to the campaign, 52 children in England and Wales have been killed by fathers known to authorities for domestic abuse since 2004.
In Scotland, the Domestic Abuse Act, which criminalises coercive control for the first time, came into force in April; it has been described as gold standard legislation by Scottish Women’s Aid and other activists.
The Judicial Institute for Scotland, the organisation responsible for training Scotland’s judiciary, pledged judges and sheriffs would receive specific training on domestic abuse in advance of it coming into force. But the Domestic Abuse Bill is only concerned with the criminal law and the training is focused on its implementation.
Last week also saw the publication of the Scottish Government’s Children (Scotland) Bill. It includes a number of provisions aimed at protecting victims of domestic abuse and their children in family courts, including prohibiting personal conduct of a case if an individual has committed a serious criminal offence. It gives courts the power to order the use of special measures including live video links and screens for vulnerable witnesses.
If passed, the Bill would allow Ministers to establish a register of Child Welfare Reporters, ensuring that those appointed by the Family Court were sufficiently trained in domestic abuse and coercive control.
As part of the consultation, the Scottish Government also looked at what should happen when a parent fails to comply with a contact order.
Currently, the court is responsible for dealing with breaches, including the possibility of imposing civil imprisonment under contempt of court power. This would not change as a result of the Bill, but a duty would be placed on the court to investigate the reasons for non-compliance to ensure the order continues to be in the best interests of the child.
“We are determined to ensure that all parts of Scotland’s justice system, and indeed wider society, are empowered to tackle and ultimately prevent domestic abuse, and all forms of gender-based violence,” says Minister for Community Safety, Ash Denham.
“The Justice Committee will soon begin its scrutiny of this Bill and where members bring proposed amendments to the legislation the government will give those careful consideration.
“As well as the Bill, our Family Justice Modernisation Strategy includes a commitment to engage partner agencies on improving the interaction between criminal and civil courts, while also introducing regulations to prevent individuals from repeatedly raising family court cases to continue their abuse, and developing bespoke trauma- informed training resources for solicitors and other key legal professionals.”
Labour MSP Rhoda Grant – the driving force behind the Domestic Abuse Bill – and McGowan both accept the Bill is a move in the right direction; but they do not believe it goes far enough.
Echoing the Sunday Mirror campaign, Grant would like perpetrators of domestic abuse to lose contact rights until they can prove they are no longer a danger and to see the introduction of integrated criminal and civil domestic abuse courts – one-stop shops where all issues could be dealt with by the same judge.
They are not suggesting there should be no way back for those who have been found guilty of domestic abuse; just that the checks used to ensure they have reformed should be more stringent.
“If, following a conviction of domestic violence, an abuser goes through a rehabilitation programme and their behaviour has changed, then, with the appropriate safeguards, contact might well be resumed,” says McGowan. “But we have to get far cleverer at dealing with the whole aspect of domestic abuse, and the civil court is lagging way, behind the criminal court at this time.”
Balancing parental rights in child access cases is no easy thing. There are those in child protection circles who are vehemently opposed to the presumption of no contact where a parent has been convicted of domestic abuse. They believe a child’s rights to maintain a connection with non-resident parents must be weighed very carefully in any decisions where contact may be restricted or terminated.
Nevertheless, scrutinising the sheriff’s judgment in Stephanie’s case, and hearing her speak first-hand about her experience, it is clear the current system is flawed.
“To be told I was fabricating evidence that had been given to the police, that had been scrutinised by the prosecution and the defence, and that had been judged to be true beyond reasonable doubt was awful,” she says. “I was mocked and tutted at and called a liar.”
Now, with her health at rock-bottom, and with the threat of contempt of court proceedings still hanging over her, she feels she has been let down by those she once trusted to protect her.
After hours of reliving her ordeal, she is worn out and crying. “I look at other cases where someone has to die before anything changes,” she says . “And then I wonder if something terrible has to happen to Ryan or me before we get ‘Stephanie’s law.’”
All names have been changed