MckenzieBlog

Tactical Rape and Child Abuse Allegations in Custody and Access Cases

by McKenzie on September 1, 2012

in England and Wales Family Law,McKenzie Friend Comment,Northern Ireland Family Law

Firstly, its important to say that I am not an apologist for anyone who assaults any parent or child, let alone anyone who sexually assaults a parent or child. However, this needs to be said…

The vast majority of the public have absolutely no idea what goes on the secret family courts, so I am going to tell the public at large that false allegations are part and parcel of residence and contact disputes in the United Kingdom.  I can’t quantify the percentage of cases where allegations are made against the father, but I have been involved in many dozens of cases as a McKenzie friend or lay advocate, and spoken to  hundreds of mostly men on the phone, so I know allegations aren’t uncommon.

So concerned was I that a theoretical serious allegation made against a client of mine could be true, I decided that anyone who came to Family Court Support with an allegation of a sexual nature that I wasn’t sure about, that they would have to get a polygraph before I took the case on.  I did get a first in my evidence at uni, and I’ve questioned many thousands of parents over the years, but even I have my doubts at times, and need a bit of help to get a sense of whether someone is being honest with me.

Despite the difficulties in divining the truth, it’s my firmly held view that the family justice system actually invites allegations by how it deals with and disposes of allegations in family proceedings. To help those of you who haven’t been caught in the machinery of the family courts, I’m going to take you through a typical scenario by way of explanation. Those who have been over course and distance know exactly what I’m talking about.

Dad is either seeing kids or mother has stopped him seeing kids, and then an allegation is made. If contact is taking place it stops. usually but not always, unilaterally, by the mother. Often times the parents have a difficult relationship prior to the allegation being made, and frequently there have been difficulties around contact.

There’s a hastily arranged and poorly informed court hearing, where the view is wrongly taken that any current or future criminal strand should take primacy. The family law process then becomes a prisoner to two even more bureaucratic and glacial systems, the police and the prosecution service. I have no idea why, especially if the case is at the circuit level when the same judges both ‘fact find’ in family cases and try criminal cases.

The strange thing here is that the answer to this abuse of process by some parties to family law cases lies in the standard of proof. My view is that if you cant prove the allegation on the lower standard in family proceedings, then you have less than zero chance of proving it to the criminal standard of proof, which is beyond reasonable doubt.

Therefore, I would prefer that the family law case is allowed to proceed at an accelerated pace, with a 30 day limit to gather and hear the evidence (if there is any corroborating evidence), and a further 30 days in which to hear the case. Not the 12 to 18 months that it currently takes when the family court is derelict in its duty to both the ‘bests interests of the child’ and the ‘no delay principle’, by handing primacy of the case to others.

By way of a footnote, I absolutely understand that if the allegation is about the harming of the child that contact should change, but should not automatically cease, especially when the child makes no disclosure after a Joint Protocol Interview, or the allegation is made by the mother despite her not having witnessed anything.

It is arguable that the state’s action is disproportionate in stopping contact, as the state doesn’t automatically remove those accused of the rape or sexual assault of an adult from their children’s lives, so it can’t be the fact that there is an extant rape allegation that is the ‘reason’ for contact ceasing. The ‘reason’ is that the parents no longer live together, and one chooses to act tactically by pressing for contact to cease, or not to be considered until the allegation is eventually adjudicated on.

And what of the false allegers? What happens to them? In a word, “nothing”. They don’t get charged with perjury or with wasting police time, and suffer no penalty in costs. They don’t get their legal aid stopped, or even get sent on a course. Their work isn’t allowed to be told that they attempted to have an innocent person charged with a serious crime. They don’t even have to apologise. Their lawyers don’t have to give their fees back, despite knowing that their client’s case was weak. The only people that suffer are the father and the child, who are deprived of each other until the court says otherwise.

It’s little wonder that false allegations are so prevalent in family proceedings, when there is no punishment for bringing them. That needs to be corrected as a matter of legislative and judicial urgency.

I understand that not every allegation is false, and not every father innocent. They are however, innocent until proven guilty.

 

 

 

 

 

 

{ 1 comment… read it below or add one }

1 Laura King October 29, 2012 at 2:09 pm

I couldn’t agree more. There needs to be penalties for false abuse allegations and also penalties for financial dishonesty (ie losing up to 25% of settlement for each proven count).

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