How the Family Court rewards abusive behaviour rather than recognising it

The Family Court defends its practice of arresting children as necessary to enforce its orders, which raises several questions: How did we get to this point? What is wrong with the court’s orders that they can only be enforced with violence? What parent would ask to have their child arrested? Why would a child risk arrest to avoid court-ordered contact with a parent?

The answers point to something darker than these arrests alone: the context in which they occur. The reason the court needs to arrest children to force them to comply with its orders is because it orders them into dangerous care arrangements with violent parents over their objections and despite their pleas for protection. The parents who seek these warrants are often perpetrators of abuse. The children who risk arrest to escape do so because it is their last hope for self-preservation.

Typical cases

As part of my research, I reviewed parenting decisions since the Care of Children Act 2004 was significantly amended in 2014. The cases in which the court issues these warrants fall into a pattern. Dad has a history of violence – against Mum, against Child, often against both. Mum leaves Dad and takes Child.

On average, women leave after the eighth episode of violence and the fifth attempt to leave. Violence starts small and gets more severe as the victim’s escape avenues close. There is some final straw – an incident different in severity or type than earlier violence. We used to think women who experienced violence got trapped through “learned helplessness”. We now know they are not irrationally unable to leave. Victims are finely tuned risk barometers. Their survival depends on reading subtle cues in their abusers. They stay because they calculate – accurately – that leaving will be worse. They leave when the violence gets so bad they have no choice but to escape.

One thing I found surprising about parenting proceedings is how often the violent father was the applicant. There are cases in which Mum and Child were still living in a refuge when Dad filed for shared care. The stereotype is that women initiate custody proceedings making strategic claims of domestic violence. In New Zealand, violent men initiate proceedings preemptively arguing they are being framed by vindictive women as a tactic to punish women for leaving, undermine their credibility, and re-establish control. Seeking shared care is also a good way for a violent father to head off action by police or Oranga Tamariki, who do not intervene once care proceedings have begun.

Women rarely fabricate or exaggerate claims of violence, even in custody proceedings – studies indicate 2-4 percent of the time. The court finds women are lying or exaggerating most of the time. This is particularly baffling because family cases are civil; the complainants only need prove it is more likely than not the violence occurred. Criminal cases are proven beyond a reasonable doubt based on testimony of credible complainants all the time, but in Family Court, a women’s cogent, consistent testimony is insufficient to find that it probably occurred.

The court also disbelieves children. When they ask for protection from violent fathers, the judges find Mum brainwashed them. They insist these children’s experiences are untrustworthy and their wishes are not their own. The “lawyer for the child” is supposed to advocate for children’s best interests. Instead, they advocate for forcing children into care with abusive fathers – the opposite of what their “clients” tell them would make them safe. Because children are not allowed to participate in proceedings or given information about them, they never know their lawyer fought against their views. The court insists it protects children by discounting their views and overriding their wishes to spare them from involvement in “adult issues” or being burdened with conflicting loyalties.

On the rare occasion the court believes some of Mum and Child’s claims, it minimises and excuses the violence or finds it unlikely to occur again, even though social science suggests it will. The court holds a strong, folkloric ideology that children always need extensive time in the care of both parents, even when one is violent and dangerous.

Aftermath

Imagine growing up watching Dad inflict violence on Mum. As you get older, he begins to inflict violence on you. You do what we tell children to do: tell a trusted adult you are being hurt. Mum does what we want her to do: believes and protects you. You leave your home, belongings, maybe even pets, but Mum gets you to safety, even if it comes in strange, barren, temporary accommodations.

A few months later, Mum tells you Dad wants you to live with him sometimes. You are terrified. You remember what it was like to live with Dad – rages and silent treatments, that glint in his eyes or smirk on his lips right before the explosion. Now he is asking that you be sent back, alone, the sole target for his terror. Mum takes you to a barrister’s chambers or a strange person pulls you out of school and tells you they are your lawyer. This barrister is too busy, has too many cases (and lacks training in child-centred or trauma-informed interviewing) to get to know you or make you feel safe. They ask you bureaucratic, lawyerly questions about the deep, dark secrets of your family – secrets you never confided in anyone. Twenty minutes with this wooden stranger in a suit are your one chance to express your views about your history, feelings, and needs to a judge you will never meet in a court you will never enter. You tell your lawyer you do not want to live with Dad, even sometimes.

For the next year, Mum goes off to “hearings” and meets with lawyers (if she has money) or does her own legal research and gathers her own evidence (if she does not). She is distracted, distant, and prohibited from telling you what is going on. Eventually, you are brought back to the barrister who tells you the court has decided it is in your best interests to spend five nights every fortnight with Dad. When you object and express fear Dad will hurt you again, the barrister explains this is best for you because it is important you have “strong” and “normal” relationships with both parents and because the adults know better.

Mum puts on a brave face and tells you it will be fine, but you know what is coming – rages, threats, name calling, and put-downs. Dad is going to be more dangerous now because you told the truth and the court sided with him. You are small, and he is large. The court either believed him and disbelieved you or did not think your safety was as important as his “rights”.

Dad taunts you. He says you are stupid and worthless for lying about him. He threatens you. He asks incessantly about Mum: where is she living, how does she spend her time, is she dating anyone? You spend five nights hiding under the covers in bed. You dredge up the old skills – listening for footsteps, mining his micro-expressions, walking on eggshells. This goes on for months and begins to tear you apart. You are worried all the time. You try to tell Mum the violence is continuing, but she will not listen any more. Either she does not care (unlikely) or the situation will only get worse if she tries again to protect you (very likely).

Arrest

There comes a point when Child refuses to go back. Maybe there is another episode of violence. Sometimes, Mum puts her foot down. Other times, Mum begs Child to keep going to Dad’s.

The threat of arrest not only exposes Child to state-sanctioned violence but also damages their relationship with Mum, which psychological studies indicate is an important “protective factor” in mitigating long-term negative consequences of child abuse. The court forces protective mothers into an impossible dilemma: risk having Child arrested or betray them by forcing them into Dad’s care. Sometimes, Mum just cannot find a big enough catapult.

In a functioning system, evidence of emotional harm or a young person’s continued fear of contact with an abusive parent would cause a judge to revisit their earlier order and consider whether they made a mistake. In a truly functioning system with specialised knowledge about family violence, no order would have been made forcing a child into dangerous contact in the first place. In the Family Court, when there is evidence court-ordered contact is unsafe or unworkable, the court responds with force: declaring the protective parent to be at fault and issuing a warrant for the seizure and forceable delivery of Child into Dad’s care. Sometimes, the arrest is accompanied by stripping Mum of care and awarding it to Dad as punishment for Mum’s “defiance”. In many cases, Child’s lawyer supports the arrest and suggests the change of care.

These arrests are an integral part of the court silencing victims of violence, crushing dissent, shifting blame, and covering up mistakes. Last year, more than 70 academics and agencies sent an open letter to Prime Minister Jacinda Ardern noting the court’s practice of “minimising, trivialising, and ultimately ignoring” family violence, “while turning the abused party into the villain”.

Secrecy

Part of what enables these unsafe practices is the secrecy that blankets Family Court proceedings. All family courts have rules to protect the privacy of participants, particularly vulnerable children, but the secrecy rules in New Zealand go way beyond protecting families from embarrassment or chilling candid disclosures. Parents and even children have requested the right to discuss their own cases, and the court denies the requests. Journalists have been criminally prosecuted for helping women and children tell their stories. The secrecy rules have become about shielding the court from scrutiny and accountability, not protecting privacy.

Quashing dissent

Threats to harm children or “go to Family Court and get custody” are common tactics of abusers. A parent who would rather have their child arrested and forced into their care than relinquish “their” time is exhibiting coercive control. It is tragic the court fosters and rewards abusive behaviour rather than recognising what it is: family violence. The court’s issuance of arrest warrants to abusive parents is part of its larger problem of being a tool through which violence perpetrators continue to entrap, control, and harm their victims. The court often issues these warrants but stays them for hours or days with a message to Mum: this is what will happen to Child if you do not submit to Dad’s demands. Women who have experienced violence report that their interactions with the court are like the violent relationships they escaped (are still trying to escape). The court’s threats to harm their children are the same threats their partners made to keep them from leaving.

These warrants are particularly terrorising for family violence survivors because this is their worst fear: being forced back. The court uses that terror to discipline and silence women who refuse to accept its “superior wisdom” when it insists their lived experiences did not occur or the “need to normalise and strengthen” children’s relationships with an abusive father is more important than protecting them from violence.

While the list of necessary reforms of the court is lengthy – requiring specialised expertise in family violence, giving more weight to children’s views, recognising child abuse does more harm to children than losing contact with their abusers – ending these arrests is low-hanging fruit. Parliament should immediately stop the shameful practice of arresting children for escaping violence. Sections 72 and 73 of the Care of Children Act should be repealed. Until the court gives appropriate weight to the safety and voices of our mokopuna, they must be empowered at least to get to safety by voting with their feet.