Were Marokopa warning signs missed or ignored?

How did fugitive father Tom Phillips manage to take his children away from their home and lives? Did Family Court practices facilitate the children’s abduction in any way? Carrie Leonetti wants answers.

Associate professor Carrie Leonetti
Carrie Leonetti is an associate professor in the Faculty of Law at the University of Auckland, and an expert in the family court. Photo: William Chea.

Opinion: The whole country is watching the search for Tom Phillips and his missing children with bated breath. We want to know where the children are, what has happened to them, and whether they are all right. We want to know who is helping Phillips elude authorities and prevent his children from seeing their mother, and why.

I would also like to know whether this tragedy was preventable. Were signs missed or ignored? If so, have we learned from this, so we can prevent the next one?

During media coverage of the abduction, there have been occasional references to the family having a custody case in the Family Court. We know that when Phillips disappeared with the children for the second time, in December 2021, he was in “breach of a custody order”, but we do not know what that order required. There is no suggestion he was restricted from having unsupervised contact with the kids. No specific details or official court information are available, however, because, in Aotearoa New Zealand, it is a crime to publish information relating to Family Court cases. Even the children’s mother is legally prohibited from talking about what happened in court.

Here is what we do know:

• Aotearoa New Zealand has some of the highest rates of domestic violence and child abuse in the world.
• About 80 percent of cases involving child custody and access are between a domestic violence perpetrator and a victim.
• Threats to abduct or harm children are common features of intimate partner violence.
• Our Family Court has a lengthy and troubled history of ignoring the relationship between intimate partner violence and child safety, and particularly the importance of threats, intimidation, and coercive control, and of awarding care of children to violent fathers.
• The court doesn’t perform evidence-based risk assessments in deciding whether to issue protection orders or allow unsupervised contact between violent parents and their children.
• The court punishes women who raise safety concerns about their children, often stripping children from their custody entirely, a practice the court euphemistically calls “care reversal”.
• The court is obsessed with an outdated, debunked construct called “parental alienation” that the UN Human Rights Council has found that our courts systematically violated the human rights of women and children through its use three times in the past five years.
• Domestic violence perpetrators are twice as likely to be awarded custody of children as men with no history of violence, and domestic violence perpetrators who accuse their victims of “alienating” their children from them are four times as likely to be granted the day-today care of their children.

Privacy and protection of the vulnerable are important values. Secrecy and protecting courts’ mythological and unsafe decision making from scrutiny are dangerous and anti-democratic.

I have no personal knowledge about the Phillips’ case, but, based on my general knowledge about the court’s practices, I have some questions.

Did the children’s mother raise concerns about harm to her children, and did the judge, lawyer for the child, and court psychologist take this seriously?

What evidence was before the court during the Phillips’ custody proceedings?

Did the court prioritise the children’s safety and wellbeing, or did it prioritise Phillips’ “right” to have his children?

Did court personnel accuse Caroline Phillips of “parental alienation” or failing sufficiently to “support” Tom Phillips’ right to access their children?
Were there proceedings after the children were abducted the first time, and how did the court assess Phillips’ risk then? Were the children still in Phillips’ court-ordered care when he took off with them the second time?

Research shows that “pro-contact” attitudes – the belief that children must always have unsupervised contact with fathers regardless of their violence and a slavish devotion to the discredited theory of parental alienation – are deeply entrenched in our Family Court, and I want to know if, this time, they facilitated the abduction of three children.

I cannot answer these questions, and neither can our media because we are not legally allowed to find the answers. Unlike in other countries there is no way that I could access these files.

While almost all countries have restrictions on publishing sensitive court information, particularly as it pertains to vulnerable victims and children, few countries prohibit legitimate journalists and researchers from accessing the information in the first instance, or reporting on it in general terms.

Privacy and protection of the vulnerable are important values. Secrecy and protecting courts’ mythological and unsafe decision making from scrutiny are dangerous and anti-democratic.

In the Phillips case it is hard to see how finding out whether their mother was stripped of their care and punished because she tried to warn the court that something like this could happen would do them much harm now. On the contrary, if people are helping Tom Phillips elude capture because he is lying or manipulating them with his claims that Caroline Phillips is an “alienator” and he is the real victim, then publishing an accurate account of this family’s history might facilitate the children’s return.

My concern is for these kids, but also for the kids in the future whose care decisions will be made by a court with a track record of devaluing their safety and prioritising their father’s rights over theirs. All over the motu today, parents are squaring off in custody litigation in which mothers are asking the court to protect their children from violence. Court personnel will not perform risk assessments in these cases or consult child-safety experts to determine what should happen. Almost none of these court professionals have specialised expertise or have received evidence-based training in family violence.

If nothing else, I would like the next Family Court judge who hears evidence of domestic violence and coercive control to receive training on what happens in cases where that evidence is misunderstood or dismissed. I want some accountability.

Carrie Leonetti is an associate professor in the Faculty of Law at the University of Auckland, and an expert in the family court.

This article reflects the opinion of the author and not necessarily the views of Waipapa Taumata Rau University of Auckland.

It was first published by Stuff.

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