‘Alarming prevalence’ of victim blaming in family courts, warn researchers

Family courts in the UK are home to an “alarming prevalence” of victim blaming and bias – predominantly impacting mothers – according to researchers we spoke to following the publication of a new report.

Nearly three quarters of cases involving allegations of domestic and sexual abuse contained victim-blaming language, according to an analysis of 91 published judgments by not-for-profit Right to Equality. The organisation shared the report with MPs at an event in parliament last week.

It found 72.5% of the judgments contained victim-blaming language, which was split into categories including “discrediting” and “trivialisation”.

One example of discrediting related to survivor testimonies being scrutinised over small differences, distracting from the risk posed to them.

In one case a judge said a mother stated in a police disclosure that the father had “held a knife to her throat”, adding: “The account she gave in court was of the father approaching her with the knife pointed at her throat rather than holding it to her throat.”

In total, 530 instances (74% of all occurrences) of victim blaming were made by court professionals – primarily judges.

Mothers’ behaviour was scrutinised and criticised while the conduct of fathers was contextualised or minimised. Women were far more likely to be described as “emotional” by judges, the research found.

Family court hearings are held in private and only a tiny fraction of judgments are published. This limits public scrutiny, transparency and accountability.

Most victim blaming identified in the report (62.5%) was subtle, making it harder to challenge.

As a reporter on the family courts for the last five years, I have occasionally witnessed firsthand the type of victim blaming and bias from judges described in Right to Equality’s study. It is also reasonable to assume that judges moderate their language when a journalist or legal blogger is present.

More frequently I’ve seen victim-blaming language and bias in judgments which have not been published, but have been obtained through a transparency order.

Examples include comments directed at a mother seeking to challenge an expert court witness in a 2020 judgment we recently obtained.

The district judge said the mother’s criticisms of the psychologist “smack of desperation” and that she was seeking to “portray herself entirely as the victim”.

In contrast, he described the father as “willing to learn and wholly child focussed”. The unregulated psychologist’s evidence was subsequently overturned by the high court last year.

Most of the victim blaming that family barrister and Right to Equality founder Charlotte Proudman has seen took place behind closed doors – away from the eyes and ears of the press or the public.

“As a barrister, I have stood in family courts and watched as some judges normalise, trivialise trauma and silence survivors,” she said.

“This report gives voice to what victims have been telling us for decades; bias is real… and it can shape decisions that affect children’s safety," Proudman added.

In 2023, the Bureau reported on the case of a mother whose allegation of rape was dismissed by one judge before the decision was overturned on appeal.

The mother told us this week she was not at all surprised at the report’s findings.

“The abuse was trivialised by Cafcass (Children and Family Court Advisory and Support Service) and in turn the judge as being historical and therefore no longer relevant,” she explained.

‘Deep seated systemic bias’

The prevalence of victim blaming and bias found by researchers was identified despite the fact published judgments have already been carefully worded by judges. (They are not a verbatim reflection of what was said in the courtroom.)

Some of the more overt victim-blaming language and bias was found in appeal judgments containing extracts from the original hearings, exposing the attitudes of judges in the lower courts.

Researchers acknowledge the report, Scratching the Surface: Victim-Blaming and Bias in Family Court Judgments, is limited in scope but warned the current analysis likely underestimates the scale of the problem.

MPs agreed the report’s findings corroborate concerns reported by their constituents.

Kirith Entwistle MP for Bolton North East said: “Too many women have told me that the family courts felt like an extension of the abuse they were trying to escape.” She added that the findings demonstrate “why victims of abuse have such low confidence in being treated fairly in our family justice system”.

Josh Fenton-Glynn, the MP for Calder Valley, said he’d come across victim blaming in his casework, adding it was the “job of men to step up and speak out as well”.

The report showed victim blaming was “not a problem that was just imagined and isolated” he said, adding: “What is going on behind closed doors in the Judicial College and why are judges being produced that will say these things?”

Researchers from Right to Equality collaborated with herEthical AI, a company producing AI language models to detect gender-based violence, which trained an artificial intelligence model to identify victim-blaming language and conduct a pilot of the research.

For the main study, 91 judgments were selected at random from a wider pool of 337 published judgments referencing domestic and sexual abuse. The sample judgments were then read in their entirety by three researchers.

Adrienne Barnett, law professor at Brunel University London and co-director at Right to Equality, said: “Our research found an alarming prevalence of victim blaming and bias from judges predominantly impacting mothers. There are judges who make very good trauma-informed decisions but what this report focuses on is the deep seated systemic bias and views.

“Family court proceedings have been underpinned for decades by deep seated misogynistic attitudes that devalue motherhood and valorise fathers.”

Right to Equality made a number of recommendations in response to the findings, including mandatory training in victim blaming and gender bias for judges and that the judiciary should publish 20% of their judgments each month with specific targets for those referencing domestic and sexual abuse.

In a October 2021 memo, former president of the Family Division of the High Court, Sir Andrew McFarlane, said all judges should aim to publish at least 10% of their judgments. “Whilst a figure of 10% will be seen by some as very low, it will be a very significant increase in the present output,” he said.

Responding to the findings, the new president of the Family Division, Sir Stephen Cobb, said the Family Court’s approach to understanding and determining cases involving domestic abuse was a key priority for the judiciary.

Cobb highlighted positive results from a new child-focused model to be expanded to all family courts in England and Wales, adding: “All family judges, magistrates and legal advisors undertake mandatory initial and regular ongoing training in which domestic abuse is a central theme. All training is regularly reviewed to make improvements that reflect developments in law, legal practice and society.”