Ian Mulgrew: Andrew Berry's convictions raise child-protection issues
Credit to Author: Ian Mulgrew| Date: Thu, 17 Oct 2019 23:17:37 +0000
Andrew Berry’s murder convictions raise serious questions about how the court and child-welfare authorities deal with the power dynamics of failing marriages to protect women and children — questions that couldn’t be discussed until now because of the presumption of innocence.
The Christmas 2017 deaths of six-year-old Chloe and four-year-old Aubrey at the hands of their father in Oak Bay were preventable.
Shortly after the murders, B.C. Supreme Court Chief Justice Christopher Hinkson rebuked me for saying so and that the child-protection and legal systems miserably failed these little girls.
In the UBC Law Review, one of the country’s leading peer-reviewed legal journals, however, three Ontario experts agreed with me.
“Literally, I wrote about (the case) because I couldn’t stop crying about it,” Lori Chambers, chair of women’s studies at Lakehead University in Thunder Bay, said in a telephone interview Thursday.
“All of (Berry’s) behaviours were about controlling (his wife) and controlling the kids, and they were so obvious. Coercive control is more predictive of fatality than extreme violence. We know that. The stats are really clear. The fact that courts are still looking and saying, ‘Well, you’re not bruised, therefore you must be okay,’ is so archaic.”
She and her colleagues wrote that the slayings suggest “a disconnect” between the courts and the provincial Ministry of Children and Family Development.
Berry’s trial confirmed that conclusion with details of the 45-year-old’s lethal downward spiral after he quit his job with B.C. Ferries and descended into squalor. He was facing eviction and B.C. Hydro cut off his power a week before the murders.
He blamed it all on his ex-wife, Sarah Cotton, telling anyone who would listen how it was all her fault. Like his ridiculous excuse about another killer, it was a crock.
Chambers, Deb Zweep, the executive director of Faye Peterson Transition House in Thunder Bay, and Nadia Verrelli, assistant professor of political science at Laurentian University in Sudbury, said the case provided clear evidence that “(b)asic reforms are required in assessment, adjudication, and accountability … if the family court is to retain its legitimacy as an arbiter of family matters.”
Titled “Paternal Filicide and Coercive Control: Cotton v Berry,” their article criticized the handling of Berry’s marriage breakdown.
“The potential for violence, in this case, was foreseeable, and public criticism is not only justified but required to prevent such tragedies in the future,” they said. The court “missed clear signs of coercive control and the risk of escalating violence.”
They itemized the red flags marking Berry’s tactics of intimidation and control:
“He failed to respect agreements or pay child support, attempted to alienate the children from their mother, and abducted them for short periods of time to enforce his wishes. He stonewalled Ms. Cotton’s plans and desires for the children by refusing to respond to her emails and requests. He intervened and asserted his authority whenever possible but did not live up to his financial responsibilities.
“Mr. Berry’s actions are illustrative of the risk factors for children in situations of family violence described by the Department of Justice Canada. He repeatedly ‘belittle(ed) the mother’s parenting skills. … He ‘use(d) the child(ren) to continue to intimidate, harass, or exert control over (his) ex-spouse.’ He engaged in behaviours that put the children themselves at direct risk.”
Such conduct is too often minimized and misunderstood, and too many fathers who display it are still given custody rights, they said.
“At least in part,” the authors added, “this is because the fathers’ rights movement has succeeded in convincing courts — and the court of public opinion — that men are essential in children’s lives, even men who have a history of coercion and/or violence towards their female partners.”
They argued child custody decisions like this embody two erroneous and interrelated assumptions: abuse of the mother is not believed to make men bad fathers, just bad partners; and contact with fathers, even abusive ones, is assumed to be in the best interests of children.
“The court system itself can become a form of abuse, with coercive fathers ‘filing frivolous lawsuits, making false reports of child abuse, and taking other legal actions as a means of exerting power, forcing contact, and financially burdening their ex-partners.’”
Erratic behaviour and psychiatric deterioration, both apparent in Berry, are also indications of enhanced danger, creating a need for particular vigilance.
“While offering careful reasons for her decision, Madam Justice (Victoria) Gray (who has since retired) nonetheless misunderstood the risk to the children and minimized the evidence of coercive control and negative parenting by Mr. Berry. She dismissed his ‘aggressive behaviour around the time of separation and during some exchanges of the children’ as ‘transient and relatively minor’ … (denying) the overwhelming evidence that Andrew Berry repeatedly defied court orders and agreements, and failed to consider the well-being of his children or take steps to improve his parenting. … The lesson from this trial is not that Andrew Berry’s lethal violence was ‘unforeseen’ or inevitably unforeseeable, but that we must talk about coercive control and provide better education for lawyers, judges, and the public in order to keep future children (and their mothers) safe.”
The court could have protected the children, prohibited overnight access, required Berry to take a parenting course, imposed penalties for violations of the parenting agreement, or required access to the children be supervised.
Instead, it increased Berry’s time with them and he was not required to take any concrete steps to improve his parenting or mental health.
Chambers said she would like to see a law specifically targeting coercive control.
“I think we need to make it illegal like they have done in the U.K., describe it for the public and have really strong information campaigns to make the public understand cases like this are preventable,” she emphasized.
“It is unconscionable, not simply heartbreaking, to allow them to continue.”