On the naughty step – a bag of wind

As Dave has explained, the Supreme Court decision in Yemshaw v LB Hounslow brought the definition of violence in Housing Act 1996 into line with other statute and Government guidance, in particular with the accepted family law definition of ‘domestic violence’.

But not for the Daily Mail. For the Mail, the real issue was set out in their headline “Shout at your spouse and risk losing your home: It’s just the same as domestic violence, warns woman judge“. It was a five judge Supreme Court, so that should be “warn 4 men and 1 woman judges”, but it is of course the woman judge that is undermining the very fabric of decent society, so we’ll let that small error pass.

Here are the Mail’s opening salvos:

Men and women who shout at their partners risk being thrown out of their homes under a sweeping ruling by judges yesterday.
Raising your voice at a husband or wife, or a boyfriend or girlfriend, now counts as domestic violence under the landmark Supreme Court judgment.
The decision also means that denying money to a partner or criticising them can count as violence and bring down draconian domestic violence penalties from the courts.

These three sentences, in which the sole accurate bit is that this was a Supreme Court judgment, demonstrate why the Mail is not a paper of record for case reports. One might, perhaps, be tempted put it down to sheer incompetence on the part of the unnamed reporter, but given the general thrust of the article, mere incompetence rather pales into insignificance. The Mail appears to consider that a definition of violence that doesn’t require physical assault means a falling away from the standards of the good old days. Britain is going down the drain. It is politicial correctness gone mad. Etc. etc..

I am tempted to believe that the presence of ‘a woman judge’, ‘a homeless woman’ and ‘a council house’ caused the Mail’s automatic story generator to overload and it mixed the case report up with the ritual ‘A levels aren’t what they used to be and people now go to Oxbridge without being able to spell their name’ story. Hence a story along the lines of ‘standards of domestic abuse used to be so much higher – in the old days I wouldn’t have left my husband unless he gave me a broken cheek bone and a damaged liver’. Either that or the Daily Mail has proudly started the Campaign for Real Domestic Violence -and asks its readers to stand up for being knocked down (or intends to reassure them that they are not committing domestic violence if they merely engage in psychological, sexual, financial or emotional abuse).

Despite all of this, you may be surprised to learn that it is not the Mail on the naughty step (or perhaps the Mail should be considered to always have been on the step). The Mail is of course a cynical, amoral panderer to a certain petit bourgeois weltanshauung, but it is frankly a bit gauche to be surprised by the depths to which Paul Dacre’s organ will stoop.

No, for the person to be put on the step, we must look to the surprising fact that in its article on Yemshaw the Mail managed to find a supportive quote from a ‘Family Law Expert’, who said:

The judiciary are taking the Humpty Dumpty view, and it risks undermining confidence in the legal system

The Mail, ever solicitious of its readers, helpfully explained this meant a “comparison between the ruling and the Humpty Dumpty character in Lewis Carroll’s Through The Looking-Glass, who said words meant whatever he wanted them to mean.”

I suspect that you are wondering what ‘family law expert’ could actually say such a thing, given the functioning definition of domestic violence in family law, via the President of the Family Division’s Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2 and not forgetting the definitions in:

[The] Association of Chief Police Officers: Guidance on Investigating Domestic Abuse (2008); the Crown Prosecution Service Policy for Prosecuting Cases of Domestic Violence (2010); the Ministry of Justice, in Domestic Violence: A Guide to Civil Remedies and Criminal Sanctions (February 2003, updated March 2007); and the UK Border Agency, in Victims of Domestic Violence: Requirements for Settlement Applications

Oh and Hounslow’s own leaflet, Domestic Violence: What it is and how you can get help from 2009.

Who, you will be asking yourselves, whilst being someone who holds themselves out as a family law expert, would offer up such a quote? It is almost as if they hadn’t actually read the judgment, but had just been called up by the Mail before the first coffee of the day and given a quote based on nothing but their own prejudices.

The Daily Mail says the quote is by a ‘Jill Kirby’. After some intensive searching for any ‘Jill Kirby’ connected with family law, I am reasonably confident that it is this Jill Kirby,  (just former)Director of the Centre for Policy Studies (a Tory think tank).  I can’t find any other ‘Jill Kirby’ who has anything to do with pronouncements on family law, let alone one with this Jill Kirby’s record on giving voice to her passing thoughts through the newspapers (Telegraph, Sunday Times, Express and so on). If I am wrong, then my profound apologies to this Jill Kirby and will the real ‘Jill Kirby, Family Law Expert’ please step forward…

Jill Kirby, (just former) director of the Centre for Policy Studies, is, or was, a lawyer.

she qualified as a solicitor in 1981 and practised in a leading City law firm as a specialist in commercial litigation and employment law. [source]

So not actually a family lawyer, then. I don’t think either employment or commercial law practice equips one to comment on family law, let alone housing law (as it doesn’t appear to have registered with Ms Kirby that this was a housing law case). If any commercial lawyers beg to differ, then it is statute at 20 paces at dawn.

Does Jill Kirby have any academic qualifications or particular research expertise in family law?

Jill Kirby chairs the Family Policy Group at the Centre for Policy Studies where she writes on family and welfare issues. Her most recent CPS report, The Nationalisation of Childhood, argues that the Government’s agenda for children is creating a direct relationship between children and the state, undermining the responsibility of families.

Jill’s other CPS publications include Broken Hearts – Family decline and the consequences for society (2002), Choosing to be Different (2003) and The Price of Parenthood (2005). [source]

That would appear to be a ‘no’. As far as I can gather, this means that she writes about her opinions on the family and the state for a tory think tank. No discernable ‘family law’ expertise at all, unless there is some kind of qualification that has been omitted from the public CVs, as one does.

There is a reliable general rule that anyone quoted in the Daily Mail may be intelligent, honourable or espouse family values, but at the best only two of the three at any given time. However, the nature and billing of this particular comment has already ruled out two of the three options.

Naught StepWhile the comment may have been sincerely meant, it would then have to be profoundly uninformed – from a ‘family law expert’. If it is not sincerely meant, then it is mere wind-baggery, such as would make most ‘experts’ blush with shame. If you are reading this, Ms Kirby, do let us know which was the case.

In the meantime, good luck with your new career. Unless that is, your new career consists of continuing to offer rubbish quotes to the Daily Mail as an ‘expert’. You are on the naughty step for adding a veneer of respectability to the Mail’s bile without respect for anyone who may read it or indeed for yourself. Think of this as an an intervention. I want you to be able to be proud of yourself. I want you to be able to say ‘I think X’ and actually mean it  – both that this is the conclusion you have come to and that you have engaged in some thought along the way. It will feel good, really.

[Update: The excellent  UK Human Rights blog has picked up on this post and drawn it together with its own criticisms of reporting of human rights cases - a thoughtful and interesting post. They include a link to the Press Complaints Commission form. What a good idea, and here it is.]

[Update 2: The real problem with this sort of nonsense is that it all too easily becomes the accepted myth. Exhibit A, Christina Odone in the Telegraph produces a witless column based upon the Mail's story. She obviously wasn't going to bother to actually check its accuracy. Interestingly, Odone describes herself as " a journalist, novelist and broadcaster specialising in the relationship between society, families and faith", so another 'family law expert'. She is also "a Research Fellow at the Centre for Policy Studies". Is this a conspiracy or does the Centre for Policy Studies have a superfluity of such wind bags?]

[Edit: We are getting a lot of new visitors to this post - welcome - but for the benefit of those who haven't read the Yemshaw case, I should make clear that the Supreme Court did not decide on Ms Yemshaw's homeless application. It quashed the Council's decision that she was not homeless because she had not suffered physical violence or threats of physical violence. Ms Yemshaw's application now goes back to the Council to decide whether on the specific facts of her situation she was homeless by reason of domestic violence in the sense set out by the Supreme Court, or not. So there is no specific finding that the treatment Ms Yemshaw described constituted domestic violence. This is, of course, a point that wholly escaped the Daily Mail.]

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About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

34 Comments

  1. Pingback: Laziness, ignorance of the law, manipulation for political purpose of intellectual deficiency – modern law reporting … « Charon QC

  2. Pingback: On the naughty step – a bag of wind | From a reluctant blogger….

  3. I’ve always found it surprising that journalists rarely seem to have backgrounds which reflect the work they scrutinise and report upon.

    Maybe the journalism sector is a good place for the overflow of bar students to head over to :-)

  4. I always agree with whatever Natasha says. That said, there is brain evidence that verbal threats and attacks trigger the same parts of our brains as actually physical assaults.

    In addition, with someone that resorts to violence in intimate and family relationships the threats just needs to result in violence once for that to be set a fear trigger.

    If someone threatens, how do you know if they will or won’t?

    Also, media literally and figuratively get paid(time, attention and money) to bolster pop ideologies and belief systems — never critical thinking. Never, ever. Big money loser.

  5. ‘woman judge’ in the headline is priceless, of course. it carries a page’s worth of ‘well what did you expect, probably time of the month’ -type innuendo in just those two words. if the male didn’t exist it would be necessary for me to invent it just to keep the hate flowing.

  6. Anyone actually experiencing being shouted at constantly in a derogatory and demeaning way in their own home and subjected to constant verbal abuse and threats of violence or other threats, will certainly welcome this judges decision.

    Until you have experienced such disgusting verbal abuse, then you cannot comment as to the effect it will have on the person being verbally abused.

    To say that someone has been shouting at their spouse/partner and it is PC gone crazy, then you have not experienced such abuse and do not understand just what the victim is having to endure.

    Therefore Jill Kirby and the Mail, I find the Judge correct and yourselves wrong.

    In this Housing Law scenario, if it were a neighbour shouting at the victim and giving abuse in a verbal manner, then the abused would have a reason to be re-housed. I see no difference between it being a neighbour shouting abuse or the victims spouse/partner.

  7. I’m well impressed: the Mail has described our legal system as providing ‘draconian’ penalties. I thought all our judges were loony lefty liberals who give criminals a good hug and then send them on holiday to Kenya. But no longer, it would appear. Three cheers for draconianism I say.

  8. As much as I am impressed with Baroness Hale’s lead on this judgment the legal profession should not celebrate this as evidence of sense from the courts in DV matters.

    A quick look at Mankinds website – mankind as in Male DV charity – concerning a case from last October regarding Dennis Long:-

    “When Judge John Milford was sentencing Long he said “You are a placid, unassertive, rather weak man”, as well as stating that as the bread-winner he should have permanently moved out of the family home.

    The key litmus test is whether the judge would have made the same comments if the genders had been reversed. Rightly, I cannot see any possibility where a judge would say or even feel comfortable in stating that a woman who had been a victim of domestic abuse for 30 years was “a rather weak woman”, but the judge felt comfortable in saying this to a male victim. The same applies when Long was told he should have left because he was the ‘breadwinner’ – an irrelevant issue. Would a judge say that if Long was female. I think not.”

    So while Baroness Hale has shown a huge lead and a correct on interpreting violence, the courts still need to go a huge way to create quity in how they judge violence!

  9. Pingback: Coverage of Yemshaw judgment raises questions of responsible legal reporting « UKSC blog

  10. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master— that’s all.”

    • Right, I call time on the Humpty Dumpty accusations until anyone (including Jill Kirby, family law expert) can read [19]-[24] of the judgment and then tell me how exactly it is that the Supreme Court has redefined words from their ordinary meaning. Bonus points will be given to anyone who manages to deal with the definitions from the Oxford English Dictionary. If that’s too much for anyone, just try reading the Wikipedia entry for “domestic violence”. Not, I accept, the most authoritative source, but still.

      Also, Humpty Dumpty was an egg, a giant egg, for crying out loud.

  11. http://www.dailymail.co.uk/news/article-1350761/Women-entitled-council-house-partner-shouts.html

    The Mail gets it about right in this article.

    Its a scam that has been increasingly used over the years to gain council housing by jumping to the front of the queue. Claim DV and the world’s your oyster (in housing and family law).

    No evidence needed, just say anything you like have it all funded on Legal Aid and get in front of that lovely Family Court Judge where on the balance of probabilities you as a teary eyed mother cannot possibly be telling porkies.
    State sponsored false allegations are an epidemic in Family Law and in Housing applications, all funded and supported by an industry that encourages more and more.

    The real victims are decent normal people who spend an eternity on housing lists while the liars keep jumping ahead – Oh and children who are kept from another parent for financial gain and control.

    Can we expect the Judiciary to understand this, unfortunately not as they are schooled through a law degree system and work as lawyers to put DV dogma above common sense and fairness.

    • Chambers

      I was about to delete your comment as irrelevant when I realised it was meant as a parody of the knee-jerk nonsense that appears in the Mail’s online comments.

      You get the tone of pompous saloon bar bore just right – ‘decent normal people’ is perfect – and there are some nice touches in there. The appeal to a Mail article as the only authority in response to a post demolishing any claims to accuracy or truth in that same Mail article hit exactly the right level of inability to go beyond prejudices. The way you manage to contradict yourself is clever – if it is in front of a family court, it is about existing accommodation, so no jumping the housing queue involved – neatly done.

      But I’d have to say it has one drawback as a parody. It isn’t very funny.

  12. Pingback: Why is Baroness Hale a “woman judge”? « Practical Feminism

  13. Chambers

    In order to “scam” the Local Authority could anyone really be bothered to

    1. Make a homeless application because of DV
    2. Wait the 33 days guideline
    3. Wait further 2 weeks to give the Homeless Dept more time to investigate
    4. Obtain s184 letter saying not in priority need
    5. Make s202 request for a review
    6. Wait 8 weeks.
    7. Wait 3 more weeks because the senior Office is on leave
    8. Wait 2 more weeks because the senior officer has got a backlog of work after leave.
    9. Go through the ” minded to ” representations for 2 more weeks
    10. Get a s202 decision that upholds the original s184 decision
    11. Lodge an appeal at the county court
    12. Wait 6 weeks before the hearing
    13. Have the matter sent back for further s202 review on appeal.
    14. Wait 8 weeks.
    etc etc etc

      • Fair comment NL

        BUT

        It does annoy me that the media in general and the press in particular peddle this mentality that if you go down the “housing” by 10.30am and say domestic violence you’ll have a flat by 4.00pm. Hence allegations of queue jumping and the world being your oyster

        My 14 point list above is the grim reality of the hurdles applicants face.

  14. Surely, the comments of ‘Chambers’ are evidence that this blog is reaching a wider readership. Villifying a new contributor as a “pompous saloon bar bore” seems rather ungenerous of spirit.

    On the question of applicants being happy to tell lies so as to get themselves rehoused. Well, I’m afraid it does happen. When you have any system there will be those who abuse it – whether the system in question is the statutory scheme under Part 6 or Part 7 of the Housing Act or the schemes whereby MPs and Lords can claim expenses for pretending to trek back and forth from properties that they own but don’t live in (Baroness Uddin) or, as the case may be, properties that they don’t own and have never even visited (Lord Taylor).

    As for the 14 point list and the the grim hurdles, my own experience is that housing/homelessness officers will sometimes be suspicious of dubious domestic violence claims. Sometimes applicants will fail to use the s188 accommodation made available to them and will not give a credible account of where they’ve been staying and enquiries might lead the officer to belive that the applicant and her partner are still living in a state of domestic harmony.

    Those persons who have the resources to own their own home or be able to rent privately will be able to achieve a change of address reasonably easily. The ‘welfare-dependent’ types (who make up a large part if not the only part, of a legal aid lawyer’s client base) will have to use different means to achieve a larger home or a different home. As I said if there’s a system there will be those that play it – and (oh dear) they might even use some of these clever lawyer chappies to try to get what they want.

    I see also that Jill Kirby has been placed on the naughty step and accused of windbaggery for having views different to those of Baroness Hale. What, no mention of the almost-but-not-quite-dissenting judgement of Lord Brown? Does he not deserve a bit of a kicking for not singing from Baroness Hale’s hymn sheet with the required degree of enthusiasm?

    OK, granted the Daily Mail is a feeble excuse for a newspaper but at least it does try to raise the heart rate and blood pressure of those who can’t be bothered to take any exercise.

    • Dear me, Chris. Where to start? Warning – I’ve had a difficult day

      So, the ‘wider readership’. We are very happy for people to read the blog and happy for people to comment if they do so in an informed and/or interesting way. There have been no shortage of arguments here in the past, sometimes between NL writers, and no doubt will continue to be. But we are a specialist housing law blog and will remain so. We don’t seek a ‘wider readership’ beyond those interested in housing law and will be making no adaptations to suit anyone else. That includes not necessarily putting out the welcome mat for people who would prefer to replicate the level of debate and understanding of the Daily Mail’s comments area. In any case, someone who draws a distinction between homeless applicants and ‘decent normal people’ is hardly a shining exemplar of generosity of spirit.

      On abusing the system, yes – I wouldn’t argue that there aren’t some who do, or try. Any system based upon very limited resources and involving individuals in need with no other options will indeed produce that.

      On Jill Kirby, I suggest you have another look at the post. It is perfectly possible to disagree with the Baroness (and the other 3 fully concurring Judges) and to do so on a reasoned and arguable basis. It is another matter to offer a quote which is both inaccurate and, from a ‘family law expert’, apparently made in ignorance of the state of play in Family Law.

      As I recall (and if you search the archive) I have not agreed with Baroness Hale’s judgments in a number of cases – Ahmad v Newham springs to mind. We rather cherish disagreement here. Saying rather daft things to the Daily Mail, we are less keen on. And for why this might be important, you could take a look at the UKHR blog post.

  15. It is perfectly possible for a Housing/Homelessness Officer to make a decision on whether someone is or isn’t fleeing DV even when taking into account a wider definition behyond actual violence.

    Of course all cases need to be handled sympathetically BUT with the right (reasonable) questions being asked it is perfectly possible to sort those who are genuinely suffering from DV from those (the minority in my experience) who may have exaggerated or falsefied claims of DV.

  16. It may be possible but it isn’t always easy. The current edition of the Code of Guidance says:_

    “It is not advisable for the housing authority to approach the alleged perpetrator …. Housing authorities may, however, wish to seek information from friends and relatives of the applicant, social services and the police, as appropriate. In some cases, corroborative evidence of actual or threatened violence may not be available, for example, because there were no adult witnesses and/or the applicant was too frightened or ashamed to report incidents to family, friends or the police.”

    So, when asked “who have you told about this violence [abuse]?”, the applicant need only reply “No one. I was too ashamed.”

    And what does the Homelessness Officer do then? I’m guessing that the civil libertarians among us would not be keen on putting the applicant up in temporary accommodation which comes with round the clock surveillance and bugging her telephone, etc in an attempt to see if the applicant and her partner are enjoying a reasonably normal domestic life.

    • Not easy. But no-one said it was, including the Baroness:

      “I accept that these are not easy decisions and will involve officers in some difficult judgments. But these are no more intrinsically difficult than many of the other judgments that they have to make. Was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider? ” Para 36 of Yemshaw

      Isn’t that something of the point for HPU officers? Real life is messy and doesn’t fit the checklists. You are making difficult decisions and you must surely take that exercise of discretion seriously, even or particularly when the simple answers aren’t available.

      • Completely agree.

        I think the real difficulty comes in distinguishing between what might be considered DV and what might just be a messy relationship breakdown.

        Conversely Councils have to be alert to the possibility that a woman homeless as a result of a relationship breakdown may have been a victim of domestic violence but not be able to express it in those terms.

        It’s interesting that most of their Lordships discussions were around DV between couples in a relationship. I have had difficulties in the past trying to point out to Councils the wider definition of “associated person”. I once dealt with someone who had been assaulted by a family member. That family member happened to be a neighbout… Council said “neighbourhood harrassment” and as there werw no police reports refused to take an application.

  17. Pingback: Opinion: “Daily Mail on the naughty step over domestic violence case” – Adam Wagner « Inforrm's Blog

  18. Don’t want to detract from your main point but …

    “the ritual ‘A levels aren’t what they used to be”

    But, they aren’t what they used to be. In 1988 we changed from normative assessment (all marks added up over the whole country, a bell curve constructed and pass marks derived from it), to criteria assessment (required criteria to get particularly grades set before embarking upon the course).

    Your ignorance of this point detracts from your note. I don’t mean to be snotty but there you are.

      • You got there before me.

        And unfortunately gyges is in error, too. I even took my A levels before the change from the bell curve. I am not in ignorance of the change.

        Perhaps now, knowing that I do know, he can read the post without having my incorrectly imputed ignorance detract from it.

        • Just read the post more closely and saw
          this

          “caused the Mail’s automatic story enerator to overload”

          preceding the A-level thing.

          So, to you and your fan (chief) … Yes, I did miss the point.

  19. Pingback: The law that wants to be free | Judith Townend | Law | theguardian.com

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