ORDERED: The parties shall live happily ever after or until further order (whichever is the sooner)

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.

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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… 

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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.

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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. 

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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. 

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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*. 

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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? 

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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. 

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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’. 

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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. 

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PS Apologies for the extremely poor use of analogy in this post – you know what I mean.

13 thoughts on “ORDERED: The parties shall live happily ever after or until further order (whichever is the sooner)

  1. Excellent post. I’ve been thinking of writing an ‘in defence of the system’ post for a while. Now I don’t have to – but I will post about this post!

  2. Perhaps one ‘in defence of the system’ post is enough, John, this week of all weeks.

    I really cannot think of any adequate response to this extraordinary exhibition of insensitive, detached complacency.

  3. @Nick: I prefer to think of it as realism. It doesn’t mean I LIKE the fact that there is no solution for some families. We can only continue to strive doing better for more families. But we’ll never get them all right.

  4. Season Ticket Holder

    Can I pick you up on your phrase “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”

    It’s the child’s right for his or her parents to be treated equally under the law, but as soon as one parent is designated as the resident parent all hope of this (if that parent is implacably hostile) goes out of the window.

    Once that parent has a residence order, they are then supported to the hilt by the welfare services and the courts, on the grounds that not to do so would impact negatively on the child. If the other parent acts in exactly the same way that the resident parent is acting, they risk having contact reduced or stopped altogether. How can anyone say that a child’s right to have their parents treated equally is not violated?

    You’ll notice that my post is gender-neutral. It is unfortunate that this issue is often portayed – as you have done – as being gender-bias when it is not. The matter of gender only becomes an issue because of the imbalance of residence orders, and not because women are any worse (or better) than men who have residence.

    To quote from a recent case at http://business.timesonline.co.uk/tol/business/law/article3850658.ece
    Lord Justice Ward said “The father complains bitterly, passionately and with every justification that the law is sterile, impotent and utterly useless – we have to acknowledge there is a degree of force in what he says,”

    Replace the word “father” with the awful words “Non-resident parent” and you don’t change a thing about the sentiment that the judge expressed.

    Which rights were ignored for years in this case – it was those of the child, and as you eloquently point out these should have trumped the rights of either parent in the first place THAT’S when the child was really let down by the courts.

    STH

  5. Season Ticket Holder

    familoo, just to follow up on the last post, Lord Justice Ward, in the case I quoted, said:
    “But the question is ‘what can this court do?’ The answer is nothing.”

    Whilst his Lorship has clearly recgnised that there is a problem, how can he have missed the fact that the system as it now operates is reactive and not proactive?

    By doing nothing in the the early stages when a resident parent is ignoring what is best for the child, it could even be argued that the welfare services and the courts are condoning this behaviour.

    In what other sphere of life would an organisation wait until a child was damaged before taking action against the parent, when by taking action earlier the damage could have been prevented?

    STH

    STH

  6. @STH:
    but in my experience the cases where the court has made the mistake of being reactive and failing to realise the damage that is being done until its too late are becoming increasingly few and far between. Judges are more proactive earlier on – and open to a wider range of creative ideas. but that doesn’t mean they are successful in every case or ever could be.

  7. Season Ticket Holder

    Hi familoo,

    the post of mine you put up doesn’t make complete sense without the one I sent earlier, about the issue of gender.

    Did you not receive it, or did you decide not to include it?

    STH

  8. @STH: didn’t get it. but have now found it languishing in my spam folder and it is now posted in the correct sequence at number 4. You are right about the gender-neutral point -mums per se are no worse than dads or vice versa, although sometimes it appears that way because there are many more mums with residence orders or de facto residence than dads.

    I take your point about a child’s right to have his parents treated equally. Although I don’t think the court would acknowledge that as a specific right per se, it is clearly bound up with the child’s best interests because if the parents are not treated equally the child is likely to be harmed. But treating parents equally doesn’t necessarily mean treating each the same in some formulaic way because each parent and each child survives in very different circumstances.

  9. Season Ticket Holder

    Of course one could argue that the mother/father imbalance in residence orders is a consequence of mothers viewing the child as THEIR child. As a Mum yourself, do you never think that you are the one who carried the baby and you are the one who went through the pain of childbirth, you are the one who is feeding it, and so the baby is yours?

    I bet you do, and that’s not meant as a criticism of you or of mothers in any way whatsoever – I know I would if I were a mother. In my very limited experience, it’s only as the child grows that issues of equality come more to the fore, when either parent is equally able to provide whatever care is needed.

    Of course if there is separation at an early point in the child’s life, it is the mother who is the more likely to be given residence by the courts, and the problem here is the power provided to the resident parent by the order.
    The stage has been set, and the intransigent mother can then marginalise the father to her heart’s content – in the same way that the intransigent father who obtains residence can marginalise the mother.

    If a matter comes back to court because one parent is trying to marginalise the other, then the courts should not simply express a dim view of this, but should act swiftly and effectively. It is the failure of the courts and th welfare system to act in such circumstances, allowing the children to be harmed. which is the real disgrace in all of this.

    How Lord Justice Ward can say: But the question is ‘what can this court do?’ The answer is nothing.”

    No. No. No.

    It is a disgrace and an appalling reflection of our society for him to say “the answer is “nothing”. If the current system is failing children, then change the system. If the problem with hostile, intransigent parents is their hostility and intransigence then address that issue, don’t say “there’s nothing we can do” – effectively condoning this behaviour and making children suffer as a consequence.

    STH

  10. I agree that the courts have to act, not just bemoan hostile parents, but i think what Ward LJ was referring to was a particular case that had unfortunately got past the stage where the court could help. The court could do nothing for that child. But I think the courts are generally getting better at identifying and tackling issues earlier.

  11. Season Ticket Holder

    Really? So why did the Court of Appeal overturn the judgement in V (Children) [2008] EWCA Civ 635?
    This can be found at
    http://www.familylawweek.co.uk/site.aspx?i=ed24245

    To quote from that case:
    “Mr Kilgour submits, very simply and straightforwardly: here is an order in October, setting up a single trial episode of contact in order to inform the court and the guardian as to whether it would be worth pursuing this matter in terms of further contact, and the mother frustrates it in October; the mother frustrates it in January, and the mother frustrates it in February. What is the court to do unless it is not to regard itself as wholly constrained and, as it were, giving in to the intransigence of the mother? ”

    The judge in the original case had attached a penal notice, which when contact did not take place produced a 3 month prison sentence. This was suspended on condition that the mother complied with the order, and the (succesful) appeal was based on the argument that this was excessive.

    But by the time the appeal was heard (contact not having taken place) matters had changed, and the mother’s intransigence was rewarded.

    LJ Lloyd said:
    “Although I can in a sense understand why the judge took a dim view of the mother’s conduct in January and again in February, and felt that the right course was to put pressure on by first attaching a penal notice to the January order and secondly by making the committal order, albeit on a suspended basis, it does seem to me that the judge was moving in that direction too quickly and without proper consideration of the issue of the welfare of the children. ”

    Familoo, I must be missing something here – why on earth would the contact have been ordered in the first place if it wasn’t in the children’s interests?

    The disturbing aspect of this CoA judgement is that there was a Family Assistance Order made, and the parent breached it. The judge took robust action in the face of the refusal to follow a court order made for the benefit of the children, and his/her action was then overturned by the Court of Appeal. In the meantime, circumstances had changed, and so the parent got away scot free.

    STH

  12. Yeah look there are lots of individual cases that will ‘prove’ how rubbish the courts are – clearly they get it wrong sometimes. I’m speaking generally. I’m not familiar with the authority you refer to (and I’m frankly too knackered at this immediate moment to follow your link) BUT in response to your comment:
    You say you are missing something regarding the welfare of the children. The point being that the imprisonment of the mother (and the consequent disruption of the children’s home life) is a welfare issue which has to be balanced against the harm caused by the lack of contact.
    I don’t think the court was saying contact is not in the children’s interests but that its not black and white – the court has to ask itself at each stage – is it better for the children to go into foster care / have their mum locked up or to try something else to get contact going?
    I’m not sure how you breach a Family Assistance Order, but you can be uncooperative, which I assume is what you mean. That can be a delaying tactic by reluctant parents – show willing by agreeing to an FAO and then drag your heels.
    For what its worth I think its absolutely right to attach penal notices to orders, but it is very difficult to enforce them for precisely the reasons I have set out – the only way to enforce involves sending the primary carer into clink which in itself is disastrous for the kids. I’m not saying it never happens or should never happen but I think the court is right to try and find other methods of enforcement or persuasion first. It is very frustrating though when other methods don’t work. I don’t even think that the new powers to fine and impose community orders will be much better (if they are ever brought into force) but perhaps they will give the court a broader palette to work with, to suit the individual case / mindset of the recalcitrant parent. A fine might work with one, or community punishment another. Most parents know that the court isn’t going to send them to prison lightly so you do get quite a few who flaunt penal notices.

  13. Season Ticket Holder

    Hi Familoo,

    I’m sure that in this particular case there are lots of circumstances which needed to be considered, but the point is that the judge made an order for the parent to be sent to prison (because the parent had refused to follow his orders) which he then suspended on condition that the parent followed the court order.

    The appeal was allowed on the gounds that the sentence was too harsh, and the parent’s intransigence was then effective – it prevented the contact ordered and there were no serious repercussions as far as the law is concerned.

    But surely the real issue was that the sentence was inappropriate, and at that the parent’s intransigence should have been dealt with at the outset. It isn’t a case of a parent needing to be forced into doing something, or punished if they don’t, parents of either sex need to be made aware of the damage that their intransigence does to the children. THIS is what the law, and the government, should provide.

    STH

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