Talking AT & OVER not TO & WITH

Sometimes courtroom dynamics reflect or even exacerbate the dynamics in a relationship. Sometimes courtroom dynamics are are played out on a macro scale.

Take, for example, the recent Womens’ Aid “campaign report” : Nineteen Child Homicides, which deals with tragic cases where fathers have killed their own children in the context of post-separation contact arrangements (and sometimes themselves or the childrens’ mother), and which is critical of what they say is a culture in Family Courts of prioritising a fathers right to contact over a child’s need for safety (of which, more in another post).

And, in the other corner, take Fathers’ rights campaigners, an example of which you see here, who express the same issue rather differently – denial of contact as a causal factor for male suicide (often accompanied by child homicide, as in the linked Fox News Article). They are also critical of the culture in the Family Courts, which they say prioritises mothers over fathers, and treats fathers with suspicion.


How to reconcile these two polarised views of the world? Because they surely can’t both be right all the time?

What is sad is that there is a degree of validity in both perspectives, but as with the individual disputes there is a tendency on both sides to blame the system, and an inability to talk to one another constructively and an attempt to grab the attention of the audience by making impactful statements and shocking statements. Characteristic of both campaigns is a tendency to imply or directly assert bad faith by those working in the system, which is generally an unhelpful starting point (although it may be a feature in some cases, we need to be open to looking for other explanations for failure too).

Whatever the failings of the system (and they are many), one simply cannot blame anyone for the murder of their own children but the parent who has carried out the act, although one may look for ways to better understanding why that person carried out such a desperate act, and how we might better avoid such scenarios. Personally, I think the answers are more complicated than “no contact for all fathers with a history of violence” or “let fathers have contact or this is what happens”, which are ultimately pretty much the arguments I have heard made on many, many occasions by one or other “party” to this dispute about how to deal with contact (I’ll let you work out which party makes which proposition).

No doubt this irksome failure to take sides makes me simultaneously a Feminazi and an idiot with no understanding of risk or domestic abuse. I take heart in the knowledge that both camps will at least agree I am a callous fool who does not care about children.

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I wish we could have a proper conversation about these things without it feeling like walking on eggshells, without people feeling compelled to respond with a counter argument. See this tweet, and short exchange with @childneedfather on twitter as an illustration – it is simply not possible to agree with any aspect of one “side’s” argument without the other “side” pointing out how their argument is better. It is seemingly impossible for either side to concede the other has a bit of a point : “if you’re not for us you’re against us”. (Incidentally, I am not picking on @childneedfather, with whom I have had some sensible discussions – it is just a recent illustration for me of a wider issue, a sort of ingrained knee jerk reaction).

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I will probably be criticised for this blog post because we can’t talk about this stuff like grown ups. Hey ho. I’m used to being in the line of fire for pointing out the uncomfortable and for refusing to stay one side of the line.

Incidentally, I am writing a longer blog post about the Nineteen Child Homicides Report. It is unlikely to agree with everything the report says. Neither will it poo poo it and dismiss it out of hand.

Post script, whilst just clearing out my desktop I came across this tweet exchange which I screen-shotted to remind me to write a post along these lines some weeks ago. I had forgotten these when I wrote the post.Screen Shot 2016-01-07 at 18.00.48Screen Shot 2016-01-07 at 18.01.02 Screen Shot 2016-01-07 at 18.01.15

PR with a low profile

Hidden away in Schedule 2 to the Children & Families Act 2014 are some amendments to s12 of the Children Act 1989 which not everyone has yet noticed.

I don’t mean that child arrangements orders have replaced residence and contact orders (If this IS news to you please go directly to High Holborn / Chancery Lane and hand in your practising certificate TODAY). No. It’s a little nugget with potentially significant ramifications, albeit probably in only a few cases.

Because as of 22 April 2014 a person who has the benefit of a “spending time or otherwise having contact with” CAO can potentially obtain PR.

New S12(2A) Children Act 1989 now gives the court a discretion to grant PR for the life of the CAO.

But when is this power likely to be exercised? What mischief is it aimed at?

This provision was in the original Bill as laid before Parliament, rather than a late amendment, and the explanatory notes to the original Bill say only this:

110.New subsection 12(2A) enables the court to give parental responsibility to a person who is not a child’s parent or guardian, in cases where a child arrangements order provides for the child concerned to spend time with or otherwise have contact (but not live) with that person. As for subsection 12(2), parental responsibility is limited to the duration of the relevant provision.

111.As a result of new subsection 12(2A) and new subsection 10(5)(d) the entitlement to apply for a child arrangements order will be extended. New paragraph (d) of section 10(5) of the Children Act 1989 (see paragraph 5(3)(c) of Schedule 2) would provide that a person who has parental responsibility by virtue of provision under new section 12(2A) is entitled to apply for a child arrangements order. The Government considers that the extension of entitlement that would be effected by new section 10(5)(d) is narrow because there are likely to be only a few cases in which the court considers it appropriate to give parental responsibility to a person with whom a child spends time or otherwise has contact but does not live.

Not massively illuminating I think you’ll agree. But it does flag one aspect of the significance of this – those with the benefit of such PR represent a new class of people who are entitled as of right to apply for a s8 order.

And if you note the wording – this does not just grant PR for those who are having face to face contact (sorry “spending time with”). It also gives a power to grant pr to those who are “otherwise having contact”.

Thinking back to the period before the Bill was launched there was much fuss, post-Norgrove report, about removing the requirement for grandparents to seek leave before applying for contact. Norgrove flip-flopped. The Bill was silent. Except I now wonder if this was a little squeak in their direction. Of course a grandparent would still need leave to get to the point where they no longer needed leave (if you get me), but it would prevent the need for repeated leave applications. Not of course that we are supposed to be in an era of repeated s8 applications, but this may well be one side effect of the fix ’em up and discharge ’em A&E approach to private law that we are now enjoined to adopt.

So, I confess I’m not entirely sure what the drafters were getting at, and there appears to have been no debate about this provision in Parliament (based on my trawl of Hansard), which reminds me that frankly, Parliament had bigger fish to fry.

Leaving aside Parliament’s intentions, it could apply to a number of scenarios – to grannies struggling to have contact with their grandchildren in the care of their former son or daughter in law, to parents who for one reason or another fall through the cracks between the assisted conception and other legislation and are not treated legally as parents…for respite carers I suppose (e.g. Aunties who have the children stay with them in Scotland for the six week summer hols or family members who step in cyclically when a sole primary carer’s mental or physical health declines).

What is most interesting is how the court will apply or draw upon previous case law, which hitherto relates mainly to fathers. In some cases there will be an easy analogy to be drawn, but in most cases falling within this system the waters are untested as far as any test for the exercise of this discretion is concerned. Will it be commitment, motivation and bond? If that is enough for a non-parent frankly any old joe blogs could secure PR.

I am very interested to see how this pans out – it may just lie dormant for a while before any case arises or it may wither and not be used at all. But it could produce some interesting case law, and some challenges for judges dealing with not one but possibly three litigants in person and a bit of novel law.

Fair to Fathers?

Martin Narey has made a foray into commentary about the family court’s role in private law proceedings, in the shape of an article in today’s Times: Britain’s Family Courts are Fair to Fathers  (sorry, paywall).

Of course, he means England & Wales, but let’s not split hairs.

Now I’m all for defence of the courts generally in the face of often unwarranted criticism, but I’m also for criticism of the system where it doesn’t go so well. It’s a big thing to say the courts are fair in absolute terms. Of course they get it wrong sometimes. And recent Court of Appeal authority remind us that they get it wrong in private law cases too, and that sometimes they patently aren’t achieving fairness for fathers (for example A (A Child) [2013] EWCA Civ 1104).

Anyway, the general proposition of this article seems to be that cases like the “X-box mother” (as it has swiftly become in the press) demonstrates that the courts do not discriminate against fathers – stand down men, Mr Narey has reassured you the system works just fine. The case in question is RS v SS [2013] EWHC B33 (Fam) and you can read more about it on the Suesspicious Minds blog if you don’t have a Times subscription. As Martin Narey and Suesspicious Minds both point out, it is not in fact a case about removal as a result of too much x-box or even really for “permissive parenting” (whatever that is), but a case where there were a number of factors and where alienation featured heavily.

It is fair to say that Martin Narey probably didn’t write that headline – just like Her Honour Judge Harris didn’t coin the phrase “the x-box mother” case. Sub editors have a lot to answer for. But the point is the message that is sent to parents reading this article as much as the intention. Headlines matter (which is a shame, because mine are almost universally naff).

Narey says there are four things that parents should take from the judgment:

The first, and most important, is that the Family Court is bound by law to do not what is best for parents, not necessarily even to do what is fair to parents, but to do what is best for children.” So far, so uncontroversial.

The second lesson to be learnt is that in making decisions about what’s best for children the fact that children are loved is not, on its own, enough.” Yaddi yadda. But of course.

The third lesson is that parents need to co-operate with the courts.” Yep. Not that any judgment or publicity is likely to prevent this kind of intractable dispute – parents do not in this sort of case have easy epiphanies, it is sad to say.

“The fourth lesson is not to give up and to have faith that if it can be seen that it is demonstrably in the interests of a child to live with a father, as it appears to be in this case, judges will do the courageous thing.” I agree. Don’t give up.

However, on the way to his fourth proposition Narey says this:

Fathers who turn to the websites of various fathers’ groups…will be troubled….They will be told that the courts grant residency to fathers in only 7 per cent of cases and that fathers are viewed consistently negatively by both the courts and Cafcass, the public body that advises the courts on the best interests of children. There is little or no evidence to support that belief…decisions are likely to reflect the reality that, before separation or divorce, the mother was most involved in parenting.”

Yet as Narey points out “some…see [the case] as an almost unique departure from a family court system that favours the rights of a mother, it is claimed, over those of a father“.

Based on my experience, I think that criticism of the family courts that is based upon the proposition that judges think that a father’s role is unimportant or that fathers cannot parent as well as mothers is flawed. There are of course individual judges or Magistrates who hold such antiquated views, or who slip from time to time into reliance upon gender stereotypes – but they are few and far between.

However, as recent Court of Appeal authorities demonstrate, there are legitimate criticisms to be made of the way case management of protracted private law disputes can fail parents, more often non-resident parents – who of course are more likely than not to be fathers. And if one counts a transfer of residence as a triumph for fathers rights, this is indeed such a triumph. But in this case, as so often with private law cases that get reported, it comes at the tail end of a lengthy and harmful set of court proceedings during which the mother’s alienation behaviour has harmed the children, and during which the relationship between the father and children has been damaged. It is quite possible that the transfer of residence will fail, or at any rate will not run smoothly.

The 7% figure (assuming it to be accurate) is a red herring – and I suspect it is 7% of all s8 applications (of which only a minority will be really about residence). Transfer of residence as a result of alienation is always going to be rare.

For some parents shared or sole residence is the ultimate goal, a prize, a “win”. This case will not assist the religiously pro-shared parenting, 50:50 equality demanding, rota wielding fathers. It does not contain a point of principle or new understanding of the law that family judges are not already applying in similar circumstances. Transfer of residence is an established, if rarely used, option of last resort in cases of persistent resistance to contact.

Because for many excluded parents residence is not the end but the means – the objective is no more than a meaningful relationship with the child – and the need to transfer residence is on one level a mark of failure. It is right that courts should persist with attempts to ensure a relationship with both parents, it is right that recalcitrant parents should know that this will happen. But I don’t know how many fathers in this situation – or how many judges -would feel triumphant to have reached the point of transferring residence. Fairness would be to allow child and father a relationship, before it got to the point of last resort. Sometimes fairness is not achievable.

And now for the cat rescued from apple tree happy news item…After ten years of war peace breaks out (thanks Suesspicious Minds again).