Splitting Headache


banana split

trial by banana split (Photo: arboltsef)

To split or not to split? That is the eternal question, answered here by new Prez in new guidance. In short: split only when it serves a purpose. And don’t forget split listing (or not) is a judicial decision. Lord Justice Wall (little known founder of Wall’s Ice Cream) also adds a reminder that splits of the banana variety are absolutely not to be eaten whilst the court is sitting. During the luncheon adjournment only please. (Okay, I made that last bit up, but it was a VERY dull post without it).

Guidance: Split hearings May 2010

Did you know…?

…that Deputy District Judges are now not permitted to deal with most Children Act matters? No, nor did I (a gap in my capacious knowledge, how embarrassing) until arriving at court this morning only to be told that the matter would have to be put back as it had accidentally been listed in front of a judge without jurisdiction.

So I thought I would draw your attention to the Family Proceedings (Allocation to Judiciary) Directions 2009, in force since 16 February 2009, which you can read at your leisure here.

It is worth being up to speed on the question of jurisdiction. Today it didn’t matter much but court staff are not infallible in listing a matter in front of an appropriate judge and a judge who is given a list may not spot the problem. I recall an early appeal against Jacqui of Bloody Relations where I successfully overturned an order for committal made by an over eager District Judge who had no ‘power to pot’.

So, for future reference, a DDJ can deal with enforcement of children act matters only, not including residence or special guardianship. So that’s pretty much nothing. And it doesn’t even matter if it’s straighforward or by consent. It’s an interesting rule in the current climate of downshifting as much as possible to the FPC and trying to spread the burden of cases across the court system as widely as possible, and even more so when one thinks that some of our most experienced but semi-retired DJs are sitting as DDJs.

Still, it is not for me to question, only to inform.

Granny v Gay Adoption

I came across this article in the Telegraph which deals with the decision to place two young siblings for adoption in preference to leaving them with their grandparents in a kinship placement. Although I don’t know any more about this case than I have read in the article I want to offer a few thoughts on it because – as is so often the case with the accounts given in the media of individuals cases – between the lines those with experience of the system can read far more into what is probably going on than might be apparent to the majority of the readers of it. And I’m afraid that the published story seems highly unlikely to me to be the whole story. I’ve posted before about how the limitations on what information can be obtained and published in connection with family cases tends towards skewed or misleading accounts being presented through the media. And of course the primary reason that this story is deemed newsworthy is because it is an account of a case which appears to demonstrate injustice and which it is strongly insinuated is a demonstration of systematic unfairness and political correctness gone crazy. It is quite likely that if fuller information were made available or the law and process more clearly explained in the article it would be much less newsworthy, and may be deflated to no more than the dual elements of the anger / sadness of those who have lost a child of the family to adoption and an objection to the law that permits adoption by gay couples.

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As a story this piece would have us believe that social workers have acted on the basis of one dichotomy: age versus sexuality – and have ignored all other features of the case (including the welfare of the child) in the name of political correctness. From reading the story one might reasonably form the view that the grandparents were in some kind of direct competition with a specific adoptive couple and have been sidelined simply to give the gays a shot. Of course what in fact will have happened is that the matter will have been approached in stages: 1 can the children remain with family (preferably a parent) long term? 2 if not what is the best non-family arrangement for them? On the basis that this is how the law and the procedure works, question 1 must have been answered negatively by the social workers and subsequently the court quite separately from the second question (although often in practice the court will sanction both decisions on the same day they are legally distinct processes).

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It is common for news pieces to fail to distinguish properly between the judgments of social workers and the sanctioning of those judgments through the decisions of the courts. Although social workers will have formed a view and prepared a care plan for the children, and although their views will have been important to the court, we know from the article that the litigation continued for 2 years. That in itself is an indication that the social work view has not simply been rubber stamped, and so the validity of the social workers views about the grandparents and the issue of adoption has been aired at length. We know that ultimately the court must have accepted the social work view that the children could not remain with their grandparents long term. The reasons for that will have had nothing to do with the identity or characteristics of any proposed adopters.

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It is apparent from the article that the grandparents both suffered from quite serious health complaints which might realistically have had implications for their long term ability to act in a parental capacity, particularly when considering that the grandfather would be over 70 by the time the children were 18. We can make a reasonable guess that these little children had been subjected to some significant disruption in their lives prior to placement with the grandparents owing to their Mother’s drug addiction, making it very important that whatever arrangements are made for them were permanent. So many other factors are likely to have played a part in the assessment of whether or not the grandparents were suitable long term carers – what is the background to the Mother’s drug abuse? Are there intergenerational or family wide problems of substance abuse or other difficulties in the family background which may have led to the drug abuse? Are the grandparents able to manage the relationship between the children and their mother without exposing them to disruption or risk? And many other questions. I don’t know the answers to those questions but I do know that the decision is highly unlikely to have been based just on the age of the grandparents, even though that may be their perception.

 

The tone and construction of the article tends to suggest a degree of sympathy for the grandparents indignation at the placement with a gay couple. The immortal lines ‘I’m not prejudiced but…’ are followed by the clearest ever demonstration of why the grandparents would be unable to emotionally allow or support the children in settling into the adoptive placement. The old argument about playground taunts is the same one used years ago to discourage mixed marriage or dual heritage children (‘it’s not fair on the children’). It didn’t wash 20 years ago and it doesn’t wash now – children are just as likely to be teased for living with their grandparents as for having 2 dads.

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And then, to cap it off, in wades someone from the Catholic Church with a blanket statement to remind us all why no children should ever be parented by gay parents. And apparently ‘There is an overwhelming body of evidence showing that same sex relationships are inherently unstable and reduce the life expectancy of those involved.’ REALLY? Being in a homosexual relationship makes you DIE EARLY? I’d like to see that evidence.

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So…I’ve picked a few holes, speculated a little and hopefully demonstrated that this is very probably only part of the story. In fact there is only really a ‘story’ in the sense of something one can utilise to express moral outrage and disgust at the erosion of ‘traditional family values’ if the factual information is pared right down. Each time I read an article like this that plays off of the sadness and anger of families it makes me more convinced about the need to open up of family courts to the media. Because these articles do nothing to genuinely inform but they do erode public confidence in the system and for the families who are the subjects of these articles they may well instill in them a sense of justified grievance that may not in fact be valid in law or reality. Whilst all cases are difficult, important and heartrending for the families involved, 99% of cases do not raise any point of public interest that is genuinely newsworthy as opposed to being merely prurient or an exercise in headline over substance.

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PS 1 Feb Oh God…it gets worse. The Daily Mail has waded in

PPS 2 Feb And worse yet still