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]