Silenced Voices: The Culture of Disbelief in Family Court Proceedings
The family court system is designed to provide a fair and equitable process for families who are experiencing separation or divorce. However, for children who have experienced abuse or neglect, the family court can be a difficult and sometimes hostile environment.
Children who report abuse or neglect by a parent or caregiver may not be believed, leading to potentially dangerous custody arrangements that put the child at risk.
In one particularly troubling case that I dealt with during my time as a lawyer, a mother and her children faced a dire situation in family court. The mother had made serious allegations of domestic abuse against the children’s father, including frequent verbal and physical aggression, threats to kill her, and punching walls to intimidate her. These actions (among others), the mother argued, constituted coercive control, and she had left him for these reasons.
Despite the gravity of these allegations, the family court initially dismissed them and ordered that the child should be returned to the shared care of his father. This was despite both the mother and child expressing fear of what might happen if unsupervised custody was awarded to the father, but their concerns were disregarded.
Tragically, the child was hospitalised the following month after being violently assaulted by his father, confirming the mother’s and child’s earlier allegations of abuse.
The father had dominated the whole family, making them all afraid, and the (young) teenage son was particularly vulnerable as he was reaching an age where a challenge to his father might be met with violence.
This case is a tragic example of the pervasive issue of silenced voices in family court, where allegations of abuse are all too often disregarded, and victims of domestic violence are not believed.
It highlights the urgent need for family courts to prioritise the safety and well-being of children and families, particularly in cases of domestic abuse, and to ensure that the voices of victims and survivors are heard and respected.
This culture of disbelief in the family court system can cause significant trauma, depression, and anxiety for the child and can perpetuate the cycle of abuse. The consequences for the protective parent (usually the mother), are often consequently dire as well.
I am interested in the reasons behind this pervasive marginalisation of children’s voices in family court and the adverse impact this bears on children and their families.
I posit that this systemic inadequacy is rooted in gender biases, stereotypes, and wider societal factors.
At the heart of these issues though, is the need to prioritise the safety and well-being of children and families. That necessitates a shift in legal culture and wider societal attitudes.
Furthermore, it is imperative to underscore the preponderance of evidence demonstrating that men are the primary perpetrators of abuse, and women are disproportionately the victims, individually, as well as often alongside their children.
Silencing Children’s Voices
Having practiced law in New Zealand for almost a decade, I’ve witnessed the recurring problem in family court proceedings, where children’s voices are often silenced or given inadequate consideration.
Even when children report abuse or neglect by a parent or caregiver, they are frequently not believed and dismissed as being coached or influenced by the other parent.
This approach contradicts a vast body of evidence that demonstrates the importance of listening to and believing children. As the saying goes, there’s rarely smoke without fire, and family courts across the West need to adopt a different approach.
A key example of research in this area, is that of Jaffe, Lemon, and Poisson’s (2013), in their book “Child Custody & Domestic Violence: A Call for Safety and Accountability”. This was a comprehensive study, that found that family court professionals often fail to recognise the impact of domestic violence on children, treating it as a separate issue from child custody.
They also highlight how children’s disclosures of abuse may be ignored or dismissed, leading to dangerous custody arrangements that put children at risk.
In New Zealand (where I’m from), Mark Henaghan, perhaps New Zealand’s most eminent family law legal scholar, has also been vocal about the issue of family court not listening to children.
Henaghan has repeatedly expressed concern that children’s voices are not being heard in family court proceedings, despite the legal framework designed to prioritise their needs and views.
Henaghan has suggested that judges and lawyers need to take a more child-centred approach to ensure that children’s voices are heard and their views taken into account.
He also emphasises that it is important to provide support and resources to help children communicate their experiences and opinions effectively in court.
Henaghan’s views are consistent with a growing body of research that highlights the need to prioritise children’s perspectives in family court proceedings.
Almost every family court’s governing statute, across Western jurisdictions, also stipulates that decision-making should not only prioritise the needs of children, including the need to protect from abuse or harm, but that children’s voices in these processes, are intended to be of paramount importance.
Therefore, it is perplexing that there is such a widespread disregard for children’s perspectives, and in some cases, active attempts to silence them.
There are in fact hundreds of academic articles and books available on these issues today. Yet, in my experience (after almost a decade in legal practice), many (perhaps most?) family court judges and lawyers seem to be wholly unaware of the research available.
The Impact Is Devastating For Children
The impact of disbelieving children in family court proceedings can be devastating and long-lasting. Disbelief can lead to perpetuating cycles of abuse or neglect, as children may be forced to continue living with abusive or neglectful caregivers or be placed in unsafe custody arrangements.
I wrote last week, about the impact of adverse childhood experiences and the subsequent range of risks that result, including with respect to mental health issues and the long-term effects of trauma.
When children’s voices are silenced or dismissed, they may also feel powerless and unable to protect themselves. This can cause significant trauma, depression, and anxiety, which may manifest in a range of negative outcomes, such as behavioural problems, academic difficulties, and even suicidal ideation.
The impact of disbelieving children can also extend beyond the individual child to the wider family system. Family members may experience frustration, anger, or hopelessness when their efforts to protect the child are ignored or dismissed by the family court system.
This can lead to further conflict between parents and can make it more difficult to achieve safe and stable living arrangements for the child.
It is important to recognise that taking children seriously and listening to their voices is not only a matter of protecting them from harm, but also of empowering them to participate in decisions that affect their lives.
When children feel that their views are being heard and respected, they may be more likely to feel a sense of agency and control over their lives, which can have positive effects on their mental health and well-being.
The impact of disbelieving children in family court proceedings can be severe and far-reaching. The importance of taking children seriously and listening to their voices can therefore, not be overstated.
Ingrained Gender Stereotypes & Biases
The disbelief of children can stem from deeply ingrained gender stereotypes and biases that perpetuate the idea that children, particularly young children, are easily manipulated and unable to make reliable disclosures.
This can lead judges, lawyers, and other professionals in the family court to question the credibility of children’s statements or to assume that they have been coached or influenced by one parent.
Research has shown that these gender biases can be especially pronounced in cases of sexual abuse, where children are often disbelieved or blamed for their own victimisation.
I talked about this in an earlier article, where I described a case of alleged child sexual abuse involving the father, where custody of the young child was granted to the father, notwithstanding a lack of serious investigation around the allegations.
Despite stats which show 1 in 4 girls and 1 in 13 boys experience child sexual abuse in the US (with similar stats across the rest of the Western world), it has always been to my astonishment, how willing judges and other family court professionals are to disbelieve children and their mothers when such is alleged.
In some cases, this disbelief may be rooted in cultural beliefs or myths about sexual assault, such as the idea that women or children may “ask for it”, by their behaviour or dress.
These gender biases can also be compounded by other factors, such as race or ethnicity, socio-economic status, or the perceived credibility or social status of the parents involved. For example, children from low-income families or families with a history of involvement with child welfare services may be more likely to have their disclosures dismissed or not taken seriously.
Addressing these biases requires a commitment to understanding and challenging them at all levels of the family court system. This includes education and training for judges, lawyers, and other professionals, as well as promoting greater diversity and inclusivity within the system.
Better Education of Judges & Legal Professionals
Family court judges and professionals need to be better educated about the signs of abuse and neglect, and the ways in which children may disclose such abuse.
Many family court professionals have limited training in identifying and responding to abuse and neglect, and may not be familiar with the range of behaviours and symptoms that can indicate abuse or the different ways in which children may communicate their experiences.
One crucial area where education is needed is in understanding the effects of trauma on children’s behaviour. Children who have experienced abuse or neglect may exhibit a range of behavioural, emotional, and physical symptoms, including anxiety, depression, aggression, withdrawal, and changes in eating or sleeping habits.
Understanding these symptoms and their underlying causes is essential for recognising when a child may be at risk and for providing appropriate interventions and support.
In addition, family court professionals need to be aware of the different ways in which children may disclose abuse or neglect. Children may be reluctant to disclose abuse or may use indirect or nonverbal communication to convey their experiences.
For example, a child may express fear or anxiety about spending time with a particular parent, or may have unexplained injuries or bruises. Family court professionals need to be trained to recognise these signs and to take appropriate action to investigate and respond to them.
At the heart of these matters is recognition for the need for better education and training for family court judges and professionals. This needs to go beyond legal training and ideally should encompass sociological and psychological training, which provides a different means of reasoning and rationalising situations, beyond the relatively limited framework that legal education provides.
Training on the effects of trauma on children’s behaviour, as well as the different ways in which children may communicate their experiences, needs to at the core of these efforts.
Recognising That There Is A Systemic Issue
Addressing the culture of denial in family court is a complex and systemic issue that requires a multi-pronged approach. Simply changing laws or policies alone may not be enough to shift deeply ingrained attitudes and biases within the family court system.
Instead, a comprehensive approach that includes changes to laws and policies, training and education for professionals, and increased support and resources for children and families who have experienced abuse or neglect is needed.
Changes to laws and policies can help to promote a more child-centred approach in family court proceedings, with the understanding that meaningful recognition, not simply lip service is required.
This can include reforms to custody and visitation laws that prioritise the safety and well-being of children, as well as changes to court procedures and rules that ensure that children’s voices are heard and respected in the decision-making process.
Increased support and resources for children and families who have experienced abuse or neglect are also needed as part of these efforts to break the cycle of abuse.
This might include government funded access to counselling and therapy services, financial assistance for families in crisis, and more direct support for children who have experienced trauma, including with respect to respite and school.
Overall, addressing the culture of denial in family court is a complex and multifaceted issue that requires a coordinated and sustained effort from all stakeholders involved. Recognition that there is an issue in the first place (as currently denied by many lawyers and judges) is the first step.
By taking a comprehensive approach that includes changes to laws and policies, training and education for professionals, and increased support and resources for children and families, we can work to create a family court system that prioritises the safety and well-being of children and families though.
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