Dilemma for NZ’S abused mothers
What is more important, a child’s right to safety, or a parent’s right to see them? Kirsty Johnston reports.
When Monique* had her second child to her ex-husband, a maternal mental health nurse arranged a system so the two women could talk safely on the phone.
‘‘Is he there?,’’ the nurse would ask. ‘‘If he is, you tell me, and I’ll make the questions so you just answer ‘yes’ or ‘no’.’’
The nurse, appointed after Monique locked herself in the hospital bathroom of the maternity ward and refused to come out, had quickly realised the newmumwas being abused. So she set up the phone calls, and when Monique sounded scared, she’d arrive in person and cheerily sweep her out for coffee, disguising it as a ‘‘treat’’.
‘‘She’d act normal in front of my ex, but as soon as she got me alone she’d say, ‘you have to get out of there’,’’ Monique says. ‘‘She’d say ‘it’s fine if you stay, but it’s not OK for the children’. I got the feeling she was going to report me if I didn’t go.’’
Monique didn’t know until later that the professionals had good reason to be concerned. Social workers could see her husband’s file with Oranga Tamariki, which contained at least one ‘‘red flag’’ about previous allegations of abuse.
But she also didn’t know that the healthworkers’ concerns – and later their evidence given in the Family Court – wouldn’t guarantee her children would be kept away from their father.
‘‘They all kept telling me to get away from my ex, do it for the children,’’ she says. ‘‘But the court didn’t help us. It didn’t protectmy kids.’’
The court judgment in Monique’s case detailed how her ex-husband was abusive and controlling almost from the start. After the second baby, he began to rape her, she alleged. Despite a formal complaint, police were unable to gather enough evidence to lay a charge.
Soon after that, Monique left. She realised he wouldn’t stop, and the violence would affect her kids. Plus, her ex had also begun to make sexualised comments about the children, which scared her even more.
Monique applied for a protection order, and asked her ex to have no contact with the kids. The children were at risk, she argued. He didn’t know how to look after them anyway – she did all the work.
To decide the issues, the court held a hearing. There, Monique discovered her ex-husband’s past was even worse than she’d thought.
Stuff cannot report all the detail to prevent identifying the man’s victims, but the evidence put to the court outlined years of emotional and psychological violence against women, including deeply problematic attitudes to sex.
The court heard evidence of a man who controlled all aspects of family life. Monique told the court the children were terrified of their father. One frequently vomited before seeing him, she said. They were traumatised and anxious and should not be forced into contactwith him, she said. Professionals, including the court-appointed psychologist, supported her views.
The man denied the extent of the abuse described.
In his ruling, the judge found that, while the man was undoubtedly manipulative and controlling, he could not definitively rule that his behaviour was the reason for the children’s distress. And while the judge realised the man wasn’t always an involved parent, or attentive to their medical needs, he said he had to acknowledge the father’s desire to be in their lives.
The court had to do what was best for children, the judge said, and that included the opportunity to strengthen their relationship with both parents.
The man would need to be supervised with his children, the judge said, but after two years he could apply to see them alone.
Monique, upon reading the decision, was distraught.
‘‘I’m at a loss as to what to do,’’ she said, sobbing down the phone. ‘‘I feel like I can’t protect my kids.’’
A child’s best interests
The question of whether violent parents should be allowed to see their children is one of the most complex issues put to the Family Court. There are no easy answers. At best, one or both parents might think the court’s decision unfair. At worst, children could be forced into the care of an abuser, and taken from the parent who keeps them safe.
Ideally, these decisions would be made on the advice of experts, with the children’s input. However, repeat studies within the past 10 years have found this does not always happen.
Victims – mainly women and children – have told researchers they were routinely disbelieved by psychologists, judges and lawyers. They said the perpetrator was considered safe, despite a record of abuse.
It’s not only victims who feel that way. According to a government review of the court completed in 2019, an independent panel found: ‘‘Knowledge of family violence in all its forms is still not widespread and its impact on children, including on their safety, is still poorly understood.’’
Problematically, the panel said, children were more likely to be ignored when they said they did not want contact with a violent parent, but believed when they did. Women told the panel that, when they advocated on their children’s behalf, they risked being labelled hostile towards the father.
‘‘It’s an impossible situation,’’ says Auckland University sociologist Vivienne Elizabeth. ‘‘The contradictions that surround this are like a kind of schizophrenia. On the one hand, we require women to leave if violence is happening, and then we expect her not to continue to protect her kids.’’
For years, the public narrative around the Family Court was that it favoured women. Men’s rights groups argued vindictive motherswere using it to deny men access to kids. Experts say that wasn’t the case, but there has been a change in social norms.
Until the late 1980s, the status quo was that, once a relationship ended, the mother took the children and the father started again. But over the past 30 years, the idea of a ‘‘clean break’’ gave way to the idea that both parents should be in children’s lives.
In most circumstances, experts say, that is an obvious good. But where there’s violence or coercive control, it can cause further trauma instead of helping children heal.
‘‘We are consigning children to incredibly difficult environments,’’ Elizabeth says. ‘‘Of course, children absolutely have a right to know who their father is or contact them, but that’s not the same thing as being with them every day.’’
If there was a loving relationship, it’s logical it would continue after separation, she says. ‘‘But we are imposing that logic where it isn’t in the child’s best interests. We’ve created a level of sanctity around the parent-child relationship, and
we don’t do enough to keep children safe.’’
The Bristol legacy
Psychologists say the impact of violence on children is clear. It’s traumatic and long-lasting. Children from violent homes are more likely to grow up to either perpetuate or be victim to further abuse. This doesn’t only apply where children are abused themselves, but where they see it happening to others.
‘‘Children don’t just witness violence that happens to their mother or caregiver, they experience it too,’’ says Holly Carrington, of domestic violence charity Shine. ‘‘They try to protect their mum and then feel guilty they weren’t able to, or run and hide and then feel guilty.’’
That amounts to psychological abuse, she says, and alongside the better understood behaviours like belittling or bullying, leaves children anxious and afraid about contact with the abuser.
‘‘We’ve heard stories about children in those situations being suicidal because they’re being forced to see their dad, and you think, what is the judge doing? Frankly, they are not getting the right information if they’re making decisions like that.’’
Shine is concerned that the court neither hires the right experts nor gives them time to talk to children properly. It can take children a long time to open up, she says. With smaller children in particular, their fear might be expressed somatically, through vomiting, or nightmares or bed-wetting.
‘‘It’s not all about gender bias against women. There are situationswhere themumis the problem and the court isn’t making the right decisions . . . because the child’s lawyer only has the time to make one or two phone calls. That’s where it becomes systemic.’’
The Family Court rejects the idea that it makes unsafe decisions based on a lack of understanding about family violence or risk. Principal Family Court Judge Jacquelyn Moran told Stuff safety is the foremost consideration in any orders it makes.
However, the court can only work within the laws Parliament sets for it. And the current law is extremely complex.
Victoria University law professor Bill Atkin says that, while safety is the No 1 principle in the Care of Children Act, it has to be balanced against the other principles. This includes the one that children should continue to have a relationship with both parents.
‘‘A child’s identity is also very important, especially for Ma¯ori. Thus, contact may be vital as part of this, but perhaps contact with wha¯nau is even more significant.’’ Welfare is dependent on the particular child and circumstances.
But advocates have argued the law is not clear enough about safety. It was better, they say, before the National-led government’s 2014 Family Court reforms, led by Judith Collins.
The ‘‘Bristol clause’’ prevented children from having unsupervised contact with a parent if there was violence or concerns for the child’s safety. It was introduced after Alan Bristol killed his three daughters in 1994 while theywere in his custody, despite his facing charges of assaulting his wife.
The clause required judges to consider a list of factors, such as the nature and frequency of violence, before a decision.
In its recommendations, the 2019 panel said it supported such a list being reintroduced. It found not only did the 2014 reforms not lead to a reduction in applications to the court or a faster process, but there was a perception the repeal had resulted in a loss of protection for children.
Panel chair Rosslyn Noonan says a list should be introduced ‘‘because they make it clear for everybody what should be taken into account’’.
Justice Minister Andrew Little says he agrees with that recommendation, and envisages the reimplementation of a checklist will form part of the next phase of reforms.
Collins says National is ‘‘open to reviewing the recommendations’’ made by the panel, but denies the 2014 reforms were a mistake. ‘‘The previous process saw children and parents dragged through acrimonious and lengthy legal proceedings where the primary beneficiaries were lawyers.’’
Advocates say even if the list is reintroduced, that will not be enough. Risk assessments need to be mandatory, and there needs to be better follow-up.
Backbone Collective cofounder Deborah mackenzie says its research shows only 10 per cent of women report any follow-up after decisions about contact. Only 2 per cent had risk assessments done by the court.
‘‘There seems to be this idea that men, with time, and through not being in the relationship with the child’s mum, are no longer going to be dangerous,’’ she says. ‘‘However, we know that, even years after separation, the abuse hasn’t stopped.’’
Mackenzie says it’s particularly concerning given most orders about supervised contact are made with a view to progressing to unsupervised.
‘‘The onus falls on women to take it back to the court and, if they do, they risk being accused of alienating the father,’’ she says. ‘‘Backbone hears from women all the time who are told by lawyers not to talk about the abuse or pursue the children’s safety, as it could make things worse for them in the court.’’
Elizabeth says there needs to be a stronger advocate for children, such as a social worker, given mothers are effectively disqualified from taking that role. She also wants more attention on the impact on the relationship with the primary parent if contact is enforced against the children’s wishes.
‘‘We never talk about the damage to them other-child relationship when they are forced to give the children over, even if they’re distressed, or hiding or crying. We are forcing them to betray their kids for fear they will be seen as vindictive, and because we don’t believe a woman to be credible.’’
‘I’ve thought about running away’
The first meeting between Monique’s children and their father did not go well. The children refused to engage. One threw up. The other pleaded with their mother not to leave.
Monique says the next time she tried to bribe them with lollies. ‘‘I felt terrible. Like I was trying to trick them into seeing their abuser. I feel like all the pressure is on me to make it work, and I’m terrified ofwhat might happen if it doesn’t.’’
She says her lawyer warned her not to appeal the decision. Even getting supervised contact was relatively rare, they told her, and pushing back might make the situation worse.
Since then, she’s tried to work out another solution. There is none she can see. She cries as she says this, apologising for being emotional.
‘‘Honestly, there have been times I’ve thought about running away with the children even though I know I can’t. It feels like I’m backed into a corner. It’s a pretty desperate thing to think about.’’
Her ex has a new partner, she says, aswe go to leave. The woman has children. Monique can’t bear to think about it.
* Not her real name