Holy Mess

Britain’s Family Justice System Isn’t Working, writes Alisdair Palmer, Public Policy Editor of the Sunday Telegraph today. He may well be right, but that’s about all I agree with in the article. It starts like this, and you know it’s going to be downhill from there:

It used to be said that the Holy Roman Empire was neither holy, nor Roman, nor an empire. “Family justice”, as practised at the moment in Britain, has something of the savour of the Holy Roman Empire about it, because it has little to do with either justice or the family.

One might accept the first proposition (justice) as a valid opinion, but the second (family)? This sentence is pretty meaningless as a comparison, and functions only as a tone setter – on which account it performs admirably.

Next we get the ever-so-slightly-sweeping generalisation:

What “family justice” actually frequently involves is taking children away from their parents. It also has the consequence of ensuring that, in cases where parents divorce or separate and cannot reach an amicable agreement on how to share custody of their children, one parent never gets to see their child again.

Of course family justice (sorry “family justice” to use the obligatory pejorative typographical jewellery) does do these things. But what does “frequently” mean? And is it significant that in relation to private law cases the remark is not even qualified with a “frequently”? Does the Public Policy Editor of the Sunday Telegraph mean to suggest this is always the outcome in private law cases, or is it poor writing? If the former, this is plainly inaccurate. Contact applications often result in contact where none was previously taking place. And incidentally, I suspect that if one checked (which I haven’t in fairness) one would find that there were no statistics to verify howe often a failure to achieve contact through proceedings results in “never get[ting] to see their child again”.

Mr Palmer thinks that:

It cannot be right that half of all non-resident parents lose contact with their children within two years of leaving the family home; or that children are forcibly adopted, and taken away from their parents, on the basis of claims, not that those children have been harmed, but that they might be harmed at some point in the future….those are however the regular results of the family justice system.

Let’s take that in stages.

I agree: it’s NOT right (i.e. desirable, appropriate) that half of all non-resident parents lose contact with their children within two years of leaving the family home, although it may be right (correct) to state that such a state of affairs exists. But what is notably not interrogated – or even glanced at – in the article, is the extent to which the family justice system is or is not responsible for that loss of contact. The family courts are involved, it is often said, with something like 10% of separated families. As a matter of logic they cannot be responsible for the loss of contact suffered by the 90% of families who have never approached the court doors (although I accept that the lower the system is held in the esteem of the public the less likely the public are to seek their remedy through that system, saying “What’s the point?” I do not think that this could be said to account for the entire balance of no contact cases where proceedings have not been issued).

There is simply no acknowledgment of the cases where a non-resident parent does not seek contact, is unable to have contact for reasons of practicality (illness, distance), or is legitimately prevented from having contact, or for reasons of safety prevented from having contact (e.g. child abuse). The article does not acknowledge the existence of cases where contact is inappropriately withheld but where a parent fails to pursue it as vigorously as s/he ought. All of these scenarios are real and not imagined (I speak from experience), the only legitimate question can be how frequently they occur and what proportion of Mr Palmer’s 50% they make up. It may be small, I doubt it’s negligible.

I don’t say the courts get good outcomes in all private law disputes, but the outcomes for children and non resident parents in many (most) cases are better than the situation that pertained prior to proceedings being commenced, even if a parent has not achieved his original goal. In the paradigm case an application for contact is begun because there is NO contact, most end with SOME contact.

The second limb:

It cannot be right…that children are forcibly adopted, and taken away from their parents, on the basis of claims, not that those children have been harmed, but that they might be harmed at some point in the future

Let’s leave aside what the law actually says about this (if you are really interested in that see here), and think of an extreme example to illustrate the principle: A mother is observed to regularly handle her very small baby in a way that puts him at serious risk of serious harm or death. She accepts that she does this but does not acknowledge the risk. The baby is fine, but very well might not be if nothing is done – one incident of rough or inappropriate handling could cause catatrophic injuries, although to date it has not). Should the court stand by?

Palmer complains that there is no attempt to further define what the best interests principle actually means. But in common with many who make this complaint, he also fails to offer such a definition – although one might extrapolate from his article what the definition might include I’m not going to do that. It would be supposition. And frankly it’s for him to put forward.

He does go so far as to suggest that the children of separated parents “should have a reasonable degree of contact with both their mother and father”. The family justice system would have no argument with that and such a proposition is already embedded in the system through case law and practice. I note that Palmer does not define “reasonable”, the significance of which is that his definition is no less subjective than the best interests principle itself.

However, we are next told that:

There is, however, no presumption of reasonable or meaningful contact with both parents in the legislation governing child custody disputes – so rulings that emerge from the family courts usually do not require it. That is why so many children lose contact with one of their parents when custody and visitation rights are disputed.

I fundamentally disagree with that proposition. In effect, as many cases will tell Mr Palmer if he cared to look, there IS a presumption of meaningful or reasonable contact with both parents (see pa 5.70 FJR Interim Report). There is no need for it to be described in legislation. The fact that the presumption is not statutory in nature is NOT causally connected to the loss of contact in cases where families fall into dispute. One of the things I ALWAYS drive home to resident parent clients is that the court will EXPECT there to be good quality contact (to include staying contact) unless there is a bloody good reason. I sometimes use that terminology to drive it home.

Palmer notes that “The Interim Report from the Family Review does not recommend the introduction of a presumption of reasonable or meaningful contact with both parents.” He does not note until later on that the Review Panel DO recommend the introduction into the CA 1989 of a

“general statement of intent, similar to the delay principle, into the Children Act 1989. This would reflect the case law on contact, reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.” (pa 5.77 FJR Interim Report)

The article insinuates that there is some kind of irreconcilable contradiction in proposing this statement of intent but stopping short of a presumption of shared or equal parenting time. I see no such contradiction. They are different propositions: reasonable or meaningful contact is not necessarily the same as shared care or equal time. Often in fact they are very different. So when Palmer says that:

The only way of reconciling those two statements is to say that the authors of the Interim Report believe contact with both parents is important for children – but not important enough to do anything that might achieve it.

he is both failing to distinguish between two different concepts (which may overlap but which are nonetheless distinct), and failing to recognise the fact that family life and child welfare cannot be reduced to a percentage.

Palmer suggests the system in Norway should be adopted. I don’t have a view on that – I know nothing about the system in Norway other than what Palmer reports, and in some respects what he describes in his article sounds as if it may well have some significant advantages. I don’t doubt that the system could be changed. But neither do I accept all of the criticisms of the current system as accurate.

Although I sympathise with the proposition that the the family justice system is presently “inflicting terrible harm on thousands of children, and thousands of parents, every year”, I doubt that Mr Palmer and I would agree on the reasons that this may be so (and I don’t subscribe to the hyperbolic terms of the description).

This all makes for selling newspapers, but I wonder if Mr Palmer submitted a response to the Family Justice Review before criticising it’s findings?

[edited: forgot to observe that The Telegraph really should ask their legal dept to review s12 AJA1960 & have a word with the comments moderators]

8 thoughts on “Holy Mess

  1. (sigh) as the FJR report has noted, the research by Joan Hunt and Alison McLeod found that applications for contact by non resident parents almost always resulted in the applicant getting more contact. I would go on, but there may be informed comment in due course.

  2. The “90% of parents of parents sort it out themselves argument” – has been discredited for donkeys years by those with an open mind. Many of those who work within the system are so institutionalised they have little or no idea of the utter disdain family law is held by many.

    It’s no secret (out there in the real world) that fathers can expect to spend thousands and have many days in Court, just to get minimal ordered contact that is then many times ignored by the other parent, with no chance of enforcement by a Judge in the overwhelming majority of cases.

    For fathers to have to beg the Court and the mother for time with their children is wholly demeaning. The attitudes of many of those who work within the system who tell fathers they should be grateful if they eventually end up with alternate weekends and holidays (after spending tens of thousands many times etc) is symptomatic of institutionalised discrimination.

    The 10% who go to Court to scrap for time with their kids and are treated so abysmally by the system ensure that the other 90% see little or no point in using a widely accepted failed system.

    P.S. ‘commentator’s’ – post, sums up the contempt that fathers face in our family law system and from the long-standing mother only focussed researchers mentioned. If the research was based on reality and not just cynical manipulation (we all know that 2 hours in a contact centre a fortnight is an increase over nothing) with Orders failing regularly to be adhered to once made, with the enforcement process a total joke.

    To rely on an increase in contact (in reality temporary or meaninglessly small many times) as an indication of the success of the system is appallingly complacent. These scraps which cost relatively huge private monies and legal aid monies are an indication of how systematic the failure in family law is and how blinkered many of those who work in the system are to what a successful system should be basing its success on.

  3. At times I despair about the perception that people have in respect of the Courts involvement in disputes over children between parents. The view that is constantly mistakenly expressed in the media, and elsewhere, seems to be that the courts favour the mother with whom a child lives rather than seeking to allow the father any meaningful involvement with the child.

    I would urge anyone reading this to consider actually reading the FJR Interim Report (you have helpfully placed a link to this in your article).

    If you take the time to read the report have a look at Annex P and the very clear document at Annex Q “What the family Courts expect from Parents”. In the document is the following: “Remember , the court expects you to do what is best for your child even when you find that difficult: It is the law that a child has a right to regular personal contact with both parents unless there is a very good reason to the contrary. Denial of contact is very unusual and in most cases contact will be frequent and substantial. The court may deny contact if it is satisfied that your or your child’s safety is at risk. Sometime a parent stops contact because she/he feels that she/he is not getting enough money from the other parent to look after the child. This is not a reason to stop contact.”

  4. Nick Langford

    One of the most salient features of the family justice system is the huge gulf between the perception those who work in it have and the perception those who use it have. You would think they talk of entirely different entities.

    The review panel, naturally, side with the workers within the system, and are dismissive of a great deal of the evidence from those who have to use it. It was quite clear when I was involved in presenting evidence to the panel that they thought our presentation represented a tiny viewpoint, and one which could safely be ignored.

    The Hunt and Macleod report was mentioned; this was the report which looked at 308 applications for contact in a year in which 78,000 were made. If the cases examined are representative, the report showed that over half of children don’t get overnight staying contact; of those who do, most only get 2 nights a fortnight. Average contact was less than half that recommended by academics like Michael Lamb.

    The 10% figure comes from the Blackwell/Dawes report which found that in 11% of cases IN WHICH CONTACT WAS WORKING contact had been ordered by the courts – thus showing how bad the courts are at getting contact to work. The figure does not measure the number of separated parents who end up litigating, and the 961 parent sample was not representative.

    My reaction on reading the report was how very thin it is, and what a pitifully meagre product it is after a year’s work.

  5. I think a major part of the problem with the newspaper article is its dependence on quantitative argument rather than qualitative ones. The reality in terms of numbers can doubtless be argued about at great length without satisfying or persuading either side of the debate.

    What is a great deal more depressing is the depressing inability of courts to deal with the minority of cases in which there is genuinely an implacably hostile mother. The cases appearing on bailii on this topic are almost uniformly depressing. The message seems to be that too little intervention is applied and that far too late. Early identification of such cases is both essential and feasible. They need then to be conducted with expedition and the readiness to apply robust remedies sooner rather than later.

    The most insulting legal doctrine to my mind is that transferring residence should be an outcome of last resort. Why should it be considered a last resort to transfer the care of a child to a parent who loves him/her and has be ability to meet his/her needs?

  6. It is an arguable point that residence should be granted to the parent most willing to protect the child’s relationships, and put their children’s welfare before their own bitterness and antipathy towards their ex.

    Michael Robinson

  7. The problem with our family courts is that statute is too loose, and judicial discretion is too broad. This leads to manifest inconsistencies in the courts, making the system a lottery. It isn’t so much an adversarial system which is the problem, but a system where solicitors and other legal advisors cannot tell with any certainty what the outcome of proceedings will be.

    This problem was demonstrated when the Children Act 1989 came into being. Parliament had intended that shared residence be commonplace ‘It is a more realistic description of the responsibilities involved in arrangements of this sort to make a residence order covering both parents rather than a residence order for one and a contact order for the other.’ (The House of Commons reference sheet 89/5.13 on the Children Bill (26 June 1989)).

    Lord Kilbraken raised concerns in the House of Lords that unless statute clearly mentions shared residence, the courts were likely to misinterpret Parliament’s intentions. (Hansard Debate (19 December 1988, page 1217 to 1219))

    What came shortly after was the President of the Family Courts stating that shared residence orders should only be made in exceptional circumstances. I raised inconsistency with Sir Nicholas Wall last November, and he said (quite fairly) that the judiciary do not read Hansard debates.

    So, what is wrong with there being a rebuttal presumption of meaningful contact expressly stated in statute. Sir Nicholas only a month ago found that meaningful contact could be maintained via Skype. Most parents would disagree.

    Personally, I think meaningful contact should also be defined in statute, to include face-to-face staying contact, and our statute should be updated to include the United Nations Convention Rights for children.

    It will be good to see the terms ‘residence and contact’ consigned to history (if indeed that does come to pass). Unnecessarily divisive, and a cause of so much dispute. Surely family time is a more appropriate term to use.

    There is a further thought that the courts should only interfere with family life if the threshold s.31 criteria of significant harm is reached. More clearly defined statute may prevent judges rushing in, where angels fear to tread.

    Michael Robinson

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