One contention that unites the bitterest of opponents involved in the family justice system is that there is a lot wrong with it. There is even a modicum of consensus as regards what is wrong with it – typically, it is under resourced, slow and opaque in its workings. On these basic facts everyone from F4J to the senior judiciary can agree (see Ryder J’s recent comments which have hit the headlines this week and my previous noting of Coleridge J’s earlier speech). More controversially, the suggestion is that the system is biased – towards wives… or mothers (or fathers)… or for or against litigants in person… or for parents versus social services.
Yes, there are many failures that the family justice system is charged with, for example – through creative case law making the institution of marriage a foolish risk for the well-heeled gent, state sponsored ‘child theft’, adoption motivated by the desire to meet government targets, and as we are reminded by a range of recent F4J stunts – shutting fathers (and less frequently mothers) out of their childrens’ lives…
As far as the latter is concerned it does strike me that sometimes we’re too tough on the system and the judges (who we write off as ‘out of touch’). In many ways we expect too much from the system: look at the hand the courts are dealt, and how that hand plays such a significant role in dictating and limiting the possible outcomes – there are some hands you just can’t win with and many cases which come before the courts where one party is so determined that it is hard to see how a happy outcome can ensue.
If I try to imagine the perfect family justice system – for example give it all the expertise and money and powers you can ask for or think of – I still cannot see how it could fix all of the broken people who would come through its doors. Law cannot mend everything.
The court in every typical children case has to work with the pre-existing facts, primarily three individual people: Mum, Dad, Child. It can’t change those basic materials. The parties (and the children) are who they are, and all of them in some way bring with them baggage, attitude, acrimony and emotional deficits aplenty. The Judge cannot control any of this. And the Judge cannot affect the brute facts that this family has been broken and maybe one or both of the parents are either unwilling or unable to try and help fix it. Of course in some cases there is social work or other expert intervention which can produce progress, but the point is that the court cannot alter the usually very difficult starting point from which litigation is borne – the parties are unable to live together, to communicate, to agree.
Which is not to say that the family justice system is a waste of time or that Judges are ineffective. For every family which is failed by the family justice system there is another who has been helped to get back on the road to recovery by a sensitive proactive and sensible judge or CAFCASS officer. Sometimes it doesn’t take much. And sometimes it is a long, long slog.
But at root, those intractable cases which are so complained about by excluded parents – well, they are just that – intractable. Try as it might a court cannot stop a mother being implacably hostile or a father being hopelessly feckless and unreliable (or vice versa). Sanctions or judicial threats usually don’t change deep rooted hostility and there are some cases that neither judicial creativity nor the Children and Adoption Act 2006 (as yet not in force) could resolve*.
I chatted with a friend the other day whose friend is a father fighting for contact with his 2 children. He has just received a negative CAFCASS report recommending no contact. I don’t know the details of the case or the real basis of the recommendations, but my friend was bemoaning how unfair this was to the father – to have no contact to children he loved. And as is often the case the tenor of the discussion was that the court really ought to be able to achieve a better outcome. On one level of course that is right, it is both tragic and unfair. But if that child is going (for whatever reason) to be more harmed by contact than by the cessation of it, there IS no ‘fair’ outcome from the Father’s perspective that does not do violence to the child’s welfare. Why is it that we treat as a failure the inability of the court in these cases to reconcile the father’s rights with the child’s when it must be obvious that in some cases one must give way to the other – and the child’s rights always trump the parents’? The court cannot magically change the mother’s personality or to erase the history of their relationship and the memories of its breakdown?
The courts are criticised for legitimising the conduct of implacably hostile resident parents who have caused a child to become unremediably alienated from the non-resident parent when they make ‘no contact’ orders – of course there is no ‘fairness’ in any meaningful sense for a parent denied contact with her/his child. But what is it we expect of the court? To force a child to continue with contact even if it is actively emotionally harmful? In these cases I think we sometimes blame the court where in reality the fault (if there is any – and in my view ‘fault’ is often an inapt term) lies with the parent(s). There is nothing in such a case that the court has ‘failed’ to do except to achieve the impossible. This is not a failure of justice but a failure of parenting. It may be a tragedy for both child and parent but it is the product not of an unfair system but of an unfair world.
The family justice system has no miracle cure for broken families. Parliament cannot legislate for love or hate or any other human emotion with any degree of precision and the law is a blunt tool given to judges with which they try to perform very delicate surgery. A court cannot treat the ailment of family breakdown by the dispensing of justice, like a pill. In the simplest terms the court is a body which tells people what to do and determines who is ‘right’ and who is ‘wrong’.
If the family courts are to live up to our expectations then we would need to see not just an increase in funding or a change in the law or procedure but some way to ensure compliance with orders like this:
BEFORE His Honour Judge Gandalf
AND UPON hearing the parties through their representatives
IT IS ORDERED THAT:
1 The Respondent Mother do forthwith cease and desist from hating the Applicant Father with all her might and shall genuinely promote contact between the Applicant Father and the child
2 The Applicant Father do forthwith become an altogether more reliable sort of person, learng to manage his difficulties in forming relationships and overcome his long standing anger management problem
3 The parties shall henceforth and at all times objectively assess what is in the best interests of the child without reference, subconscious or otherwise, to their own needs and emotions
4 The parties shall henceforth and at all times see the good in each other
5 The Parties shall live happily ever after or until further order
* The Children and Adoption Act 2006 will, if it is ever brought into force, allow the court to curfew or tag an errant parent, or impose a community punishment on him. Financial compensation for missed holidays can be ordered.
PS Apologies for the extremely poor use of analogy in this post – you know what I mean.