Bits n pieces

A couple of interesting judgments here :

Holman J in Luckwell v Limata, a discrete judgment on the approach to the question of the court hearing financial remedy proceedings in public, and the exclusion of witnesses from such a hearing during the evidence of other witnesses. This is the one where the Wife’s father appears from press reports to be holding the whole case hostage as he has threatened to cut off the wife if she gives the husband a penny (in sketch form) (h/t Carol Mashembo).

Pauffley J in Re Y (A Child: Private Law: Fact Finding) (h/t Suesspicious Minds, who I think is probably beavering away now doing a proper post on this). It’s raining interesting Pauffley judgments at the moment, and this one is worth reading if you are interested in the press and social media response to recent judgments by female judges in private law cases, such as RS v SS, which I wrote about here and here. The judge’s findings in relation to the mother’s allegations are pretty stark; the scenario, whilst extreme and unusual in some respects, is not dissimilar to a number of cases I have dealt with – these sorts of patterns of insistent yet poorly evidenced allegations are sadly very common. It seems likely there is more that will unfold in this case and it does not seem sensible to speculate on what will happen next – much will depend one imagines on the Mother’s reaction to a judgment which is very strongly contrary to her position and critical of her.

8 thoughts on “Bits n pieces

  1. According to today’s Today’s Times, the wife in Luckwell has been ordered to pay the husband £1.2m of the £6.7m which she has to her name. If Daddy cuts her off that’s his privilege, she’s a big girl, and the judge was quite right not to be intimidated out of doing what was right as between the parties.

    Of course, if prenups were valid without any soft-centered exception about “needs” and “all the circumstances” – as per the draft Bill, he would ahve been held to his word (and had no claim) and this litigation would not ahve arisen. There’s a lesson for us all there.

  2. In relation to Re: Y, I would agree Lucy, that the dynamics of the case as reported in the judgment are not unusual, one parent makes a set of allegations that appear (legally speaking) to be poorly evidenced, yet the parent sticks to them like glue. My interest is in why this occurs, and, in fact, this dynamic (which underpins so many chronic conflicts in Private Law) was always what I used to seek to understand in the old days when experts were instructed to look at this very issue in Private Law proceedings.

    I have only scanned through the Judgement and so I may have missed something, but the judge does not appear to have the same level of interest in the ‘whys’ of the mothers behaviour, and variously notes mother’s emotional behaviours when giving evidence, describes one allegation as ‘ridiculous’ and elsewhere suggests that it is not clear whether the mother is behaving maliciously or sees sexual interest in unlikely places due to her own history. This does not seem to be an area that is seen as worthy of further pursuit by any agencies/professionals.

    What I wonder is this – is the Judgment which ultimately gives father unsupervised contact going to result in mother becoming willing and able to support the child in having a decent relationship with Dad? Would knowing why Mum has said/done what she has said/done (broadly speaking does it seem to be more of a ‘malicious’ act or are there other factors underpinning what is (to mother) a ‘genuine’ fear and concern) actually help?

    I feel very concerned that this level of analysis seems to have gone increasingly out of fashion when there are so many potentially useful insights that can be gained by a proper understanding of why parents are doing as they are doing. For example (and I am not suggesting this is the case in Re: Y), certain types of mental health issue can involve very strongly held beliefs (some may call them delusions) which are absolutely real to the person concerned and so, to them, acting in certain ways is being a ‘good parent’ and protecting their child from what they perceive to be real and present danger. Telling them they are ‘wrong’, ‘malicious’ and so on will not change the belief one iota and in fact I have seen examples where such messages from Court simply reinforce the belief that no-one else really understands or can protect the child.

    If you don’t know why the parent behaves as they do, or whether they could benefit from professional intervention (for example if fear of the child being abused is related to the parent’s own experiences, with what the Court sees as over-vigilance being seen by the parent to be an act of protection so that the child does not suffer the same fate as the parent did) then it is hard to see how meaningful change for the child can really be achieved. Even if the parent appears to be compliant in ‘doing what they are told’ by the Court, it is not likely that their fundamental beliefs will have changed and so the child may be at just as much risk of long-term emotional harm as they ever were, especially if the parent genuinely believes that their actions are ‘protecting’ the child.

  3. On Re Y, interesting and unusual as some of the facts are, I think I am not going to blog about it yet (as you point out, it is at a mid-way point, and I am also worried about jigsaw identification – there’s something that happened in that case to the child’s physical appearance which would make identification of the child very very easy to neighbours, and that opens up very substantial cans of worms)

  4. Lisa, Professor Harry Zeitlin has postulated various ideas to account for a mother holding rigidly to false beliefs and making false allegations of child abuse. His paper was posted a few blogs back.

    My anecdotal experience of such a case tells me, strongly, that mental health issues are involved. These are basically borderline mothers in my view, at times highly impulsive and abusive with it. Faced with an uncomfortable situation they will distort reality to suit. A mother like this could smash you in the face then tell you, within minutes, that you did it to her. Believe me, this happens.

    The main thing a father has to learn to do in dealing with a person like that is minimise stress levels. Those mothers who make false allegations and who act impulsively and abusively cannot handle stress as a normal person can. Regrettably, they are also highly projective and can often garner support for their weak allegations from the agencies, particularly when such allegations are presented as her child’s disclosure.

    • Thanks for the Zeitlin reference Paul, I will check it out.

      I hesitated to use the term ‘Borderline’ as it can have pejorative associations for those who attract that label, but essentially I would agree.
      Having worked with clients who had a diagnosis of Borderline Personality Disorder in both NHS settings and in many Care Proceedings and Private Law assessments/interventions, it seems to me such a retrograde step to cut out mental health professionals from the loop, especially in Private Law cases.

      I accept that certain cases will still appear ‘exceptional’ enough to attract expert assessment (although that is only going to be useful if the chosen expert has the right experience with BPD/complex mental health) however since the ‘changes’ I am aware of multiple cases where I know that the client had a ‘diagnosable’ mental health condition (such as BPD, Bi-polar disorder, schizo-affective disorder) and the Court still failed to regard this as requiring any expert mental health assessment. I believe that the chosen route was to assess substance misuse using hair/blood tests and use this as an indicator of ‘stability’.

      When one looks at the essential difficulties experienced by a parent with a Borderline Personality Disorder, so much research and clinical evidence would point to early and severe attachment difficulties (often related to abuse and trauma) which leave the person struggling to make ‘stable’ relationships, subject to intense bursts of rage/distress when they feel in danger of being abandoned and often displaying ‘extreme’ and impulsive behaviours because they struggle to calm themselves down and often have to rely on drugs, alcohol or other forms of addictive behaviour to self-medicate.

      No-one who has worked therapeutically with clients with these very distressing difficulties would suggest that it is in any way simple or straightforward and any experienced mental health team member will recognise the tendency of teams who work with clients with BPD to mirror the difficulties of the client, through massive team ‘splits’ where some team members see the client wholly sympathically and others become highly negative. Supervision, training, regular team meetings etc are all required to work effectively and for the system not to get caught up in black and white thinking leading to poor decision making.

      Transpose that to the Court arena…how many of those chronic conflictual Private Law cases involve parents with complex mental health issues such as BPD and how does an essentially adversarial system (when it comes to Court anyway) do anything to resolve the situation speedily, and in the long-term best interests of the child? I would strongly suspect that those cases that have previously gone on for years and years, with full (undoubtedly extremely expensive and time-consuming) investigations of endless allegations, are prime examples and it is hard to see how this could possibly benefit the child (for example, a child having numerous full child protection medicals (and I mean full examinations) in different parts of the country because a parent was so convinced by their belief the child was being abused and in turn convinced numerous social workers to take action).

      Cafcass officers are not trained to assess complex mental health and associated risk in Private Law and social workers following the ‘tick box’ frameworks they have to complete, won’t be trained to do it either in the Public Law arena. I can’t imagine Information and Mediation Assessment meetings are going to add much for these sort of cases and therefore they will end up in Court anyway. What is the point, in Family Law, in cutting even more of the already fragile links with mental health, when the expertise to understand manage (at an early stage) the most complex and potentially damaging Family Law cases already exists in good mental health services, and if properly used could make a massive difference to the children involved and save time and money.

      I know this all probably sounds desperately naive but still…

      • Thanks, Lisa. I didn’t see this earlier. You spell the problem out incredibly well and your message deserves to be told at the highest levels. My own child was subjected to several such futile interventions including investigative interviews so I know from bitter experience the distortions that can happen.

        Private law disputes happen in the main because one parent or the other is loopy. Life for me these days is an empirical exercise in managing the, thankfully less frequent now, loopiness. My children are affected though. Normal parents don’t fight over children without good reason and lack of common sense characterises many of these cases. The lack of professional help or even willingness to help or accept such help is required at all, remains all too palpable. Accusing a father of abuse is meat and drink for them. It’s a easy, tangible target to go for; a nice afternoon’s work particularly when it means they don’t have to go into some god-forbidden sink estate. When the facts are effectively reversed these same professionals fade into the woodwork.

  5. Re the Luckwell case – I can see how it would be very frustrating for a prenuptial agreement to be completely ignored if it had been relied upon. However, the Judge did take it into account with his decision.

    I like the idea of the certainty of prenuptial agreements. However, how that could be achieved without riding roughshod over the principle of fairness remains to be seen.

  6. When parties are going through a divorce they can make any terms they like – the court will only be concerned to protect the children from hardship and the taxpayer from being shafted. And the result is not always what would have been fair if the parties had not agreed it. We all know of cases where a Mesher order has been made and when the house comes to be sold it causes great hardship to the wife. I had a male client once who had remarried a woman of some substance who died two years before the sale was due, leaving the lot to him including an insurance policy to pay off the mortgage on the very nice pad they had bought – but the little house where the wife had been living had to go and she was not left with enough to buy anything. Her application to convert the Mesher into a Martin so she could stay put as long as she wanted failed – with costs.

    And that was fair, because it was what they had agreed, and any other result would have been unfair for the same reason.

    Now, if the stereotype of the woman as the weaker partner in the negotiation still has any legs (and I am not convinced) it has more application at divorce-time than it did before the marriage when they were not bound to each other. So if an order made during a divorce can be enforced because it would not be fair not to, why not a prenup?

    To put it another way, the parties’ agreement makes it fair.

    It really is as simple as that and we shall come to it in time. The Law Commission’s proposals are only a first step.

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