A short rant….and….breathe!

This has been brewing for some time. I need to get it off my chest because it is impeding the drawing of a breath of fresh air, like a particularly difficult phlegm bomb (sorry, that is disgusting but it does rather convey the unhealthy and rather unpleasant irritant to my wellbeing that this has become).

The Family Court is variously criticised for –

  • relying on instinct / preconceptions / stereotyped gender based assumptions* about childrens needs (court is biased in favour of mothers / against fathers)
  • not relying on instinct / preconceptions / stereotyped gender based assumptions about childrens’ needs (court is so insistent on promotion of contact it will not listen to mothers who allege dv)
  • failing to have regard to evidence (failing to accept that a piece of evidence proves the thing a person thinks or says it proves)
  • having regard to evidence (specifically, severing of the natural primal unique essential (etc) biological maternal bond is more detrimental than any other harm so the other stuff doesn’t matter, or generally having regard to any evidence that tends to undermine MY evidence, or “I know I can’t prove it but I still SAY it’s true”)
  • failing to apply a sufficiently high standard of proof (i.e. being prepared to make findings on the “more likely than not” basis instead of treating every allegation as untrue unless it can be proved to the criminal standard of “satisfied so I am sure”)
  • failing to apply a sufficiently low standard of proof (if a mother alleges it it is practically criminal to suggest it is not so)
  • failing to act sufficiently swiftly / robustly in the face of allegations of abuse (he is violent / abusive, now why won’t you let me stop contact?)
  • failing to act sufficiently swiftly / robustly / creatively in the face of false allegations (I am not violent / abusive, she if fabricating it, why won’t you do something to stop her alienating my child?)
  • failing to use the tools it has
  • using the enforcement tools it has
  • being secretive
  • being too open
  • too readily / too often removing children from parents
  • not removing children from parents often / promptly enough

It really can’t do wrong for trying to do right. Now I’m no apologist for the Family Court and I don’t think the Family Court is right ALL the time (and nor as it happens does the Court of Appeal)….(And by gum there are LOTS of things that are VERY wrong with the “child protection” and “family justice” systems)… But nor do I think the Family Court is wrong ALL the time.

On the internet, where everyone’s truth is THE TRUTH, any decision which is not consistent with *my truth* means the judge, lawyers, social workers (etc) are paedophiles, child snatchers, corrupt, liars… I *know this* because there is a picture of the judge circulating on facebook with the word “paedophile-enabler” written above his forehead in red. Yes people, the internet is a truly scary place.

Sometimes it feels just a little bit like the Family Court is stuck in the middle of some dysfunctional entrenched conflict that is focused on adult agendas rather than childrens’ needs. Oh, wait….

Sometimes I think that everybody needs to blame somebody and the one person they can all agree on is the judge.

In my dark days it feels like the public discourse boils down to a very long-winded and disguised mantra of “You don’t agree with me. Therefore you must be wrong”. Everybody is chanting, shouting, hissing – but nobody is communicating.

But I ask this : where your truth or your view of another person is fundamentally inconsistent with the person on the other side of the divide (whether that is your ex or a social worker) – how else should we resolve those disputes other than through a court, applying the law and relying on evidence?? What BETTER system is there? What better system could there be?

Trial by instinct? Presumption that children should live with their mothers always? ALWAYS?

Trial by who shouts loudest, by who uses the most colourful or inflammatory language, by who is most dogged and persistent in their denigration of the other, trial by “the things a four year old says must be true” – or trial by who is better at running Facebook campaigns? Should we give the child a line-up of adults she might like to live with and ask them to pick them out?

Easy to criticise. But how would YOU improve it?

Yours despairingly,

 

Answers on a postcard (please send it to Michael Gove not me, I can’t bear to read the replies).

 

* yes, I know I have generalised here as between mums and dads for the sake of brevity – these are the general patterns I see, but of course individual cases have the female and male parties transposed, and indeed not every case involves a male : female pairing.

42 thoughts on “A short rant….and….breathe!

  1. I think this comment nicked from Seusspiousminds ( spelt it wrong) sums it up.
    Jerry Lonsdale | June 23, 2015 at 12:07 am
    Simple Question, what do you do for a parent when you have tried everything imaginable and it still is not enough to persuade the Courts to return the kiddies?, even though parenting has not been in any doubts and that it is higher than adequate!

    Just remembered you didn’t want any answers . Sorry! Please don’t shout at me.

  2. Open the courts to the public
    Publish the Judgements
    Direct the court to fully involve both parents as much as possible
    Treat people as equal

    There’s no license to be a parent, they come in all shapes and sizes. That is not necessarily a bad thing, if there are genuine issues, the objective should be education and improvement, not blaming and removal.

    The problem with the Family Courts is that there are winners and losers. The focus is drawn away from what’s best for the child and attention is drawn to the grievances of one or both of the parties who can’t get over the fact that the relationship ended without the other parent getting all the blame. The court allows that bitterness to detract from the objective resulting in one side “winning” and the other side (and the child) “losing”.

    Why do they allow it? The usual motives that drive most human activities.

    • not sure that it is so much that the courts “allow” it as they fail effectively to stop the win lose mindset…speaking generally of course.

  3. how else should we resolve those disputes other than through a court, applying the law and relying on evidence??
    Problem is there is no clear law, there is so much discretion there is no consistency, and family disputes are complex and emotional conflicts and evidence is biased and subjective. A judge cannot hope to make reasoned logical decisions when faced with that. Perhaps trained mediators could be used to identify key issues for judges to make decisions on, rather than the free-for-all, haphazard, scattergun arguments that currently prevail. In my opinion the current family court system is not fit for purpose, I’d expect to see a significant rise in people bypassing the courts, disappearing into the night rather than risking the lottery that is the current system.

    • John, am not sure I see why mediators would be any better at identifying the issues than judges. and indeed i’m not sure that failure to identify the issues is even the problem.
      personally i think the law is very clear, it is the interpretation of it that is tricky. if the law were consistent in the sense of producing the same outcome in similar cases there is a risk that the needs of a particular child would not be met. you trade flexibility for predictability…

      • Do you really think the needs of “a particular child” are considered. I have been in and out of court over the last 5 years, maybe 15 hearings, and not once have I come away feeling that anyone involved had even considered the children. Not the judge, not Cafcass, certainly not the lawyers. The parents obviously have their own agenda. (I have custody or however you like to describe it this week, so I am not a bitter loser) but I do think some consistency would help, and allow judges to deviate with a good explanation of why. I’d estimate 80% of my time in court was pointless, a waste of time and money for everyone. Directions hearings where standard items were ordered, parenting plans ordered and never completed, and never revisited, hearings postponed at a moments notice usually for months. my last application has been ongoing for 27 months to decide a relatively straightforward issue and is still pending. 27 months with the children living with the uncertainty and the stress of both parents. I think in our case a few hours with a mediator identifying the actual issues disputed and allowing a judge to focus on what is important, rather than the baggage might have helped.

        • I’m sorry that is your experience – my general experience is that there IS a focus on the individual child. Forgive me, but if mediation is the answer to your case why not mediate?

          • Mediation requires both parties to cooperate and currently it is completely optional and won’t happen unless it becomes mandatory. My suggestion was that the peripheral issues could be avoided so valuable court time can be used to deal with the genuine issues. I am pleased you still have some faith in the system, I have none left. I certainly wouldn’t trust either the court or Cafcass to make the right decision.

          • One person’s peripheral is another’s genuine John. Compulsory mediation a) isn’t a thing (well it might be but it isn’t mediation, it’s bullying) and b) will rarely be effective. IMHO.

  4. The devil you know…….

  5. I remember reading a book by Edward de Bono that pointed out how when considering an idea, our instinct it to criticise it. Partly because in our culture finding flaws in something is an accepted way of demonstrating intelligence. He contrasted that approach with the Japanese one (at the time businesses were supposed to emulate Japanese business systems) where people are expected to find good points about what is proposed until the person putting forward the idea then criticises it, whereupon others are allowed to put forward points that counter the original one.

    It seems to me that there is an instinctively critical approach (in the negative sense) going on here. It is difficult to work with that.

    Aren’t there always going to be tensions in any system? The work is surely to keep the balance between the various competing interests: it will never be “right” nor will it ever stop changing in response to those interests.

    There seems to be little investigation into what society wants by way of a care system let alone what it is prepared to pay for.

    Perhaps as well as asking “how would you do it?” we can ask “what would you change? what would you keep the same? and What in all that have we overlooked?”

  6. TO IMPROVE FAMILY COURTS :-The government should:-

    1:Abolish Forced adoption

    2:-Scrap” Gagging orders” (when National Security is not involved)

    3:- Forbid “Punishment without crime”(taking children from parents who have not committed crimes against children).No more taking children for “risks” (that may never happen !) We can then concentrate on protecting the fewer numbers of children who have been physically or sexually abused but who are at present overlooked as unsuitable adoption material

    4:-All parents not convicted of sexual or physical abuse against children should be allowed contact with their children and should never have their conversation censored or be penalised for contacting them by phone,email,or letter/card.

    5:- Parents appearing in family courts should be allowed to bring in relatives and friends to watch proceedings and give moral support.(at present grandparents and step-parents are routinely refused admittance.)

    6:-Parents should always be allowed to bring into court, witnesses including their own children if they can demonstrate that such witnesses might help their case.

    Six changes that would probably eliminate 99% of the present injustices suffered by parents and children in the family courts.

  7. I’d love to take child arrangements out of the court arena altogether. It’s the very adversarial nature of the judiciary that creates a lot of the strain, bad feeling and the winners and losers mentality.

    Family Centres should be created for separating families, with access to parenting courses, counsellors and other trained professionals. If the starting point was a presumption of shared care, there wouldn’t be this perceived gender bias that exists currently.

    The very fabric of our families is changing and that should be reflected by educating our
    children, attitudes towards parenting needs to change and where better to start than at school, as many of out children are dealing with new family dynamics, this would make sense.

    A bit of a pipe dream I know…but wouldn’t it be great!

  8. Keep breathing, familoo!

  9. 3 cardinal freedoms vital to a democracy are gradually being discarded in the UK; All three apply to the case Under discussion……….

    1:- “Innocent until proved guilty” has been replaced in the family courts by “guilty if their guilt is more probable (51%) than their innocence”; and as judges always consider the allegations of social workers to be probably more reliable than the denials of parents the result is that parents once accused are usually found to have neglected or abused their own children.

    2:-” Freedom of Speech” has been completely discarded in the family courts and been replaced by gagging orders on parents who have had their children removed and also on those same children who are forbidden to tell their parents at contact of the shocking sexual and physical abuse they receive in fostercare or in “children’s homes”;Parents who see their children at contact are forbidden to show emotion,to discuss their case or to say they miss their children and want them back home.
    I myself acted as a Mckenzie friend in one case helping a parent forbidden to contact her only child.As a consequence I have been given a lifetime ban from speaking to anyone about that case ever again otherwise I will be immediately jailed !

    3:-“Freedom of movement and communication” has also been partially discarded so that we have seen parents (who have previously never been convicted of any crime) jailed for sending a birthday card or waving to their children as they passed by in the Streets.Breaching a court order that mothers ljke “vicky haigh” (whose name I can mention because her case was raised in parliament) must never comunicate by letter,email,fax,or telepone and certainly never meet face to face with their own children because a court has ordered them not to do so.Why? Because judges found it more likely than not that mothers coached their daughters to make allégations of sexual abuse against their own fathers;Even if true cutting of even indirect contact punishes the child even more than the mother..
    Baby P’s mother was of course allowed to see her surviving kids in jail and has now been released and given a new private identity at huge public expense thanks to her excellent relations with social workers…You see she was politicallycorrect………………

  10. Winston Smith

    Well the most simple one is to end secrecy, Lucy, I am surprised you don’t campaign for that. The result has been, as said, no part of the Family Court is fully accountable. Yet this has only been the case since the introduction of American-style family Courts and in the wake of cosmic mega-scandals. Natch the enthusiasts for American style Family Courts wanted secrecy as they ddn’t want any more. please don’t suggest, Lucy, that this was not so as I was heavily involved in refuting the theories behind one of them. As said, this was the lowest point in the British Child Protection system.

    • I don’t think that there should be a complete end to the privacy safeguards in family courts but I do think that we could do much better at transparency and put more information out there (hence The Transparency Project). Other than that I’m not really quite sure what you are talking about Winston Smith – you are obviously thinking about some particular moment in history and I am not following you.

      • Winston Smith

        Lucy,

        I am talking about the introduction of American-style Family Courts in the early -90-s. before that cases were heard in the magistrates’ court and crown court, the only secrecy was not to name the family or kids.

        This is how the scandals were headline mews dau after day. CSA,SRA, Munchausen Syndrome, Recovered Memory Syndrome.

        The Satan Abuse one was the worst as it was a fundamentalist hoax spread by fundamentalists. I had a full scale public row with the NSPCC director I recall. As I was told, ” this will discredit all Child Protection work !!”

        Surprise, surprise, secrecy was introduced.

        This is how the scandal got out –

  11. A mother who has her baby snatched from her at birth is legally gagged and threatened with jail if she dares to protest to the media on the grounds that her new born baby might be upset to have its privacy invaded ! That is the reality though they don’t put it quite like that……..
    Gagging orders on these mothers are an affront to freedom of speech and human rights but who cares??

    • Except that the tide is rather turning on that isn’t it? I can think of a number of cases where that is absolutely not so, as I am sure can you.

      • Familoo I cannot think of one single case where a mothers whose baby was taken at birth was allowed to go on tv identifying herself and her baby or have these détails published in the national press.Munby is certainly helping the tide to turn a little but lower court judges,magistrates,and recorders tend to interpret what he said in a way enabling themto carry o as before.Narey said much the same thing.
        Anyone who feels they have been wronged by the State should be allowed to scream from the rooftops without being compelled to hide their identity for fear of jail.That used to be the essential difference between a democracy and a totalitarian State.

  12. Mr Justice Charles granted Essex County Council an injunction banning the media from identifying the child, who is now 15 months old, or those caring for her.

    But he stopped short of banning the publication of the mother’s name, saying she was ‘seeking to make assertions to the effect that she has been unlawfully, wrongly and badly treated’. She has already been named in the Italian media.

    This was a 50% exception that proves the rule.By this time court proceedings had finished and the baby was Under a placement for adoption with adoptive parents.There is no way she could have publicly identified herself when the baby was first taken though that was the only time when she might have been able to rescue it !

    • I doubt she would have been able to rescue the baby when she was first taken since she was in the middle of a mental health crisis wasn’t she?

      I agree parents are rarely permitted to tell their stories in this way, but I think that is changing and will change further.

  13. Can anyone defend the ban on grandparents,friends,and even partners who are not parents of the children in question from attending court with mothers or fathers desparately trying to fight for their children all alone in court…………..
    A mother who has had her baby removed at birth is understanably upset but in court she is isolated when her parents,friends, and her new Partner are inevitably refused admission to the” family” court;.

    • Not inevitably but often. I have dealt with a number of cases recently where grandparents and friends or partners have been permitted to sit in on hearings. It depends on the circumstances – certainly where a parent is in person they are very likely to be permitted to bring a family member in as a McKenzie friend for support, unless that person is demonstrably unruly. Even where they are legally represented family members are increasingly often allowed in. If they are disruptive then they probably will not be – they are unlikely to be assisting the parent in those circumstances anyway.

  14. Given all the secrecy and obvious bias of the courts against fathers how do you get statistics or any real objective understanding of the family court system?

    Anecdotal evidence suggests that 99% of the time in contested cases mothers are favoured regardless of circumstances.

    I can’t find any examples anecdotal or otherwise where fathers ever get a fair hearing in family court but without statistics and the ongoing secrecy there is no way to even open a proper debate.

    My experience of Cafcass and the court is that all evidence is ignored and the mother wins no matter what the circumstances are.

    • Hi John,
      In fact there is some research which shows your anecdotal evidence is probably not representative. See the link in this blog post to the recent Maeb Harding research : http://www.pinktape.co.uk/cases/when-journalists-ignore-source-material-it-is-public-debate-which-pays-the-price/.
      My own anecdotal experience over 13 years is consistent with that research – I have represented lots of dads who have been awarded substantial contact or residence (as it used to be called). You will also see if you look at judgments on BAILII that there are plenty of examples of this happening too.
      Lucy

      • Contact I believe, that seems to be expected but not residence. The bias against fathers is shocking and persistent their gender alone is enough to deny residence

        • It isn’t in my experience. What most often tips the balance is the status quo, but I generally find that this is applied to fathers with care as much as mothers with care. more often children have historically been in the care of their mother, so absolute numbers of residence orders to dads are lower, but the decisions in each individual case are not in my experience based on gender as much as whether there is justification to change arrangements for a child that are established and working.

      • I read the report in detail and struggle with their interpretation of the statistics. In their sample which is only 215 cases – which any statistician will tell you is not sufficient to claim significance, the statistics show that more than 75% of the time the mother is the primary carer. 75% of contested cases the mother is primary. But they conclude no bias.

        In cases where one parent is sole custodian it is almost twice as likely to be a mother than a father.
        In cases where the care is shared as in a formal shared residence order or where there is contact ordered the ratio is around 80% with the mother.
        So having established that in approximately 80% of cases the mother is favoured the report concludes no bias.

        My conclusion is that a statistician that looks at a situation where one party is favoured 80% of the time as not showing bias, demonstrates an obvious agenda on the part of the author.

        Thank you for the link to the stats though it is reassuring to see that my experiences are the norm and that a mother is favoured in 75-80% of residence cases.

        • I think the point is that where mothers are fathers start off in the same position they tend to end up in the same position – if they start off having care of the children (male or female) they are more likely to keep them. that isn’t bias it is social norms – that parents have by and large adhered to whilst living together. no reason why parents should not switch things round or mix them up (we do in our house), but the outcomes depend significantly (but not entirely) on the starting point. So I don’t really agree with your interpretation.

          • On the start point I agree, the starting point is very heavily weighted in favour of the mother because of perceived social norms, expectations and presumptions of what is best. It is not a level playing field mothers seemingly start out with a 4:1 advantage.

            What follows is an attempt by fathers to redress this balance but the courts generally favour not changing things no mater how marginalised the fathers might be.

            Cafcass told me that the children were better with their mother because “I had a job”, (that is not a joke) I pointed out that their mother also had a job, she worked further away and worked longer hours. And that it was currently me that picked up kids from school etc. Cafcass said “that’s different”

            How do you break social norms and assumptions when Cafcass are stuck in the dark ages? I have fought bias and assumptions for years. A mother, no matter how bad is almost always assumed to be better than a father, no matter how good a father he is. Until the courts are willing to challenge old fashioned and out dated assumptions children are going to grow up denied loving fathers.

          • I am sorry that is your experience John. Where two parents have a f/t job the fact that the father works is hardly a determining factor! That is the sort of false logic I would challenge in cross examination. Fortunately (for others) what you report is not my typical experience, so I think you have been unlucky. Obviously I don’t know if there were other reasons for the recommendation in your case, but the one you set out is a pretty poor basis for a recommendation.

  15. There is one case where fathers are favoured over mothers to a ridiculous degree.If a child reports to the police or social workers that the father has sexually abused him/her and if the mother subsequently supports that accusation she is doomed;!
    In nearly every case she is accused of coaching the child and denied contact of any kind by a judge until the child is 18 . In some cases the accusation of coaching is untrue and in others it is not .In neither case does a mother deserve to be jailed for sending a birthday card,waving at the child in the street ,or for a chance meeting at a petrol station !

    • She’s only doomed if the court finds the allegations to be untrue and the mother persists in making her allegations!

  16. There we differ .No child deserves to be forbidden to email,phone,,or write to her mother just because she has made allegations against the father and the mother has supported her! True the court has found it more likely (50%) that the mother coached than not but neither child nor mother deserve such disproportionate punishment for mere words uttered that may or may not be true.Jail for a birthday card or even a “happy 21st birthday” on Facebook ! Meanwhile a headmaster pleading guilty to sexually abusing an 8 year old girl for more than a year gets a suspended sentence !
    Ain’t life grand?

    • I don’t think it is sensible to make blanket assertions about what is in the best interests of children. Sometimes contact with parents can reignite false belief systems or re-traumatise children. In most cases contact can and should happen but there are cases where it is necessary for it to be monitored, suspended or stopped. You are, I think, describing a single case which is far from typical of the norm.

  17. On the contrary I have dealt with a lot of cases where the mother (and sometimes the father) have been denied contact due to suspected (51%) coaching of children to make allegations against the other parent and being denied all contact as a result and more important the children concerned are forbidden to contact the parent they love ;What kind of emotional harm can that inflict on children?
    Sometimes blanket assertions are obviously valid .For example “Young children should not be encouraged to binge drink” or perhaps you think that only applies to some children?It can never be right to forbid a child all forms of contact with mother or father unless maybe a parent is a violent criminal and even then Baby P’s mother saw her kids in jail !A non criminal father who congratulates his son on Facebook for his 21st birthday is jailed for months for his temerity ……. Some judges should be locked up …………..

  18. Familoo ! Try [edited] and [edited] and [edited]
    For 3 typical cases where non criminal sane mothers have been banned from any sort of conact with their children.
    I will understand if you have to anonymise these ………..

    • Ian,
      I have edited out the names, phone numbers and email addresses in your comment.
      I was asking if you can refer me to any judgments setting out more detail of these cases. I don’t propose to phone them up and interview them! Any recent-ish committal judgment will be publicly available.

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