This is a guest blog post written by Stephen Twist, family barrister and blogger.
NB Stephen has asked for me to host this post, which I am happy to do, in order to stimulate debate. I plan in due course to post a reply to it, but in the meantime comments are welcome and encouraged on this post from professionals and parents.
PARTY ANIMALS
Going to court for a dispute involving your children is worse than accepting an invitation from Jeremy Kyle. You should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?
If anyone was to invent a process that was better designed to fan the flames of conflict and humiliate the protagonists, they would be hard pushed to beat the ‘family court system’. Take two people who are at loggerheads, a judge who has better things to do, bring in two lawyers with their jerry cans of publicly funded petrol, strike a match and you’re sure of a big blaze. If publicly funded the taxpayer gets to pay for your day in court, and if you are not sponsored by the public purse, you can also add in a huge bill for all the damage that you both sow and reap.
For over thirty years I have played my part as a barrister in these cases. Often, there are no winners. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of the conflict.
In my previous blogs I have explored the role of mediation to tame the tempest. Those who want to glance back on my ‘mediation musings’ are free to do so. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.
The Children Act 1989 was intended to put the child or children first. Maybe it did, but the legislators did not seize the uncomfortable stinging nettle of who manages the competing claims. Then, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.
Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. So, isn’t now the right time to take that extra step and withdraw party status from the protagonists?
I envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and decides if a ‘children’s guardian’ should be appointed. This first step would be the norm, and the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was not possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. Like any other witness, the parents /grandparents /extended family members would remain witnesses, having a right to have their voice heard but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.
Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. We would also need proper funding of guardians and their solicitors, but the blogger senses that the replicated costs of party status for parents would probably pay for a pretty good service. The requirements of efficiency and institutional functionality would probably rule out CAFCASS, but with a large pool of funded, professionally regulated, independent guardians, that should be no problem. This blogger does not envisage difficulties with Convention articles 6 or 8. He sees the change as a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage.
But what about the poor lawyers who would lose work? Yes, you have a point there. Perhaps the blogger should re-think his proposals to keep himself and Lucy (Pink Tape) in a job?
‘You should have sat down quietly together and sorted it’. Try telling that to a recalcitrant resident mother who doesn’t even want her children caling dad ‘dad’ and who is supported by her legal aid lawyers who tell her she doesn’t have to either. Funny how barristers are now taking this line when for the past thirty years or so they, along with their pals in the judiciary, have worked ceaselessly to cement the paradigm of the alternate weekend dad that has ultimately caused so much damage to the lives of children in this country.
Stephen,
It is a radical and attractive proposal but I see a couple of problems. Firstly, it assumes and expects much from the guardian, although I am relieved that you are not suggesting CAFCASS, given the inconsistency of that organisation.
Secondly, I fail to see how article 6 would not be engaged if party status were removed from the parents; whether the interference with that right would be proportionate in the overall context of what you are proposing is beyond me to speculate.
Thirdly, surely this would require an inquisitorial role from specialist family judges, for which the funding is unlikely to be forthcoming, under the present government at least.
Lastly, in the small number of cases that are doomed to become intractable, would this cause further delay and, if not, what would you propose by way of enforcement of orders made?
You look like you could use a comment; so I say only this, and I could be miles out, but does all this adult anger in court stem from our not-too-great education system? It’s so removed from decorum and from knowing right and wrong for yourself.
I’m old enough to remember a soap opera set in a school, in the 1980’s, called Grange Hill, I saw a certain rot setting in, an anything goes in the actors’ conduct. I am quite old, mind you 🙂
Stephen,
I am happy to see a barrister thinking about more child-centered alternatives.
I’ve worried about what kind of burden your suggestion might place on the child, never mind the guardian or solicitor managing the case.
I am not entirely convinced that this would remove adversity either; it would just add another arena for it to play itself out, prior to going to court, no?
Also, I can almost sympathize with your suggestion that the parties are the problem; it certainly looks like that most of the time.
But the heart of the problem is not the parties, but the system that allows the parties (or one party) to behave the way they do.
So as much as I admire your willingness to consider alternatives, I think that nothing will change until there is a 50/50 default presumption of equal parenting as a kind of safety net for the children. I think that nothing will change until society accepts this, and learns to value and make fathers feel respected and included, rather than making the worst assumptions about them upon separation, treating them as criminals, as deadbeats, as financial providers, as visitors in the lives of their children, barring their access to information about their children, and so on.
In sum, the problem lies not with the parties, but with one party abusing a system that seems to have been designed to be abused.
A couple of, I hope, helpful reposts to the great comments you all have made. Paul Gilson: the point of removing ‘party status’ from parents is that their lawyers are also removed. I sense that you might approve of this? Northern Lights: I would suggest that there is no Article 6 issue, because the parents still retain access to the court and the right to be heard, albeit as witnesses; and yes, on my suggestion the ‘adversarial role of lawyers’ would be replaced by an ‘investigatory role by judges’, assisted by the guardian. Angela: spot on, but if you remember Grange Hill, you are not that old! Guy Tearful: I often feel the same as you about the system. There is a fundamental flaw in a system that tends to prioritise one parent to the detriment of the other, and often the ‘resident’ parent is given too much support and not enough reality.
I find it surprising and a little depressing that this post has attracted so few responses (5 now, including this one) when others have attracted well over a hundred, simply because they appeared to criticise a sacred cow.
A family law barrister of over 30 years call proposes something radical by way of reform and the silence is deafening.
There must be some reason for that.
Stephen,
Thanks for taking the time to respond. I’m still a little intrigued by the Article 6 implications where parents would in effect be reduced to passive participation in hearings determining outcomes for their own children ( I agree it would be no bad thing in many cases)
I wonder if you could apply your proposals to a hypothetical but fairly typical case?
Let us refer to an Applicant father as “F,” the Respondent mother as “M” and the subject child as “C.”
F and M had a brief relationship resulting in a child, “C.” They separated before the birth, somewhat acrimoniously, and M did not put F on the birth cert.
F is keen to be involved in C’s upbringing but M will allow him no contact and has threatened him with legal action if he tries to contact her again.
F asks M to attend mediation but she refuses (or does attend without agreeing anything) with the result that F has no option but to apply to court. He decides to apply for Shared Residence.
At the first directions, M refuses to agree any interim contact, alleges DV and that F has mental health problems but has no evidence to substantiate her claims which are refuted by F.
I wonder if you could suggest some outcomes or offer your musings on this theme. It might place in context for myself and others the nature of what you are proposing and how it might lead to fairer and more child centred outcomes- hopefully with less delay?
(I was tempted to throw into the mix that the father is a LIP and the mother legally aided but didn’t want to push my luck!)
The interesting ‘guardian’ role suggested by Stephen sounds similar to the role of the family consultant in the Family Court of Australia. This is a neutral person who works for the court who has a social work and/or psychology background and takes part in ADR and a ‘less adversarial trial’ model. These consultants generally seem to be highly regarded by the courts & the public. However the job developed from an earlier ‘family counsellor’ introduced in 1976 – they struggled a bit. So maybe about 30 years after Cafcass began, our version may have evolved! (Most parties in Australia are LiPS I believe)
Northern Lights…let’s go!
F notifies the court office by a short, simple ‘proforma application’. The court screens it and within 7 days allocates it to a ‘Children’s Guardian’ (G) who writes to both M & F within 14 days. M & F are invited to discuss the matter with G briefly by telephone. Where appropriate, G sees C. This way, G builds a picture of how things stand. At this stage there are no court hearings. G, advised by the Children Act, will advise M that C will have a relationship with F unless there are good, evidenced reasons otherwise. Paternity may have to be established by simple DNA testing (6 weeks). Historic DV would not be of itself a good reason unless recent, ongoing, serious and having clear implications for the safety of M or C. The F’s mental health could well be a good well be a good reason, but with F’s authority, G would access his medical history and advise on the topic. Clearly the process requires judgment calls by G. Without more, G would require M & F to engage in a meeting, which may be direct, or if a direct meeting is inappropriate, a shuttle between both M and F. G would make it clear to both M & F what would be the likely expectation of a court given their declared positions. With skill, persuasion and compromise, an agreement may be possible.
If not settled, the matter would be administratively prepared for a simple, summary assessment by a judge (J), G’s solicitor (GS) taking statements from M, F & G and anyone else considered to be of real importance as a witness. M, F & G, and any other relevant witness, would attend court (where possible within 56 days of issue), and GS would present the case, outlining their respective final positions and differences. GS would call each witness, examine them and having heard M & F’s positions, call the G to advise the court. The hearing would usually last 2 hours, unless GS indicated otherwise. J would give a short judgment and order accordingly. The outcome may be ‘no order’; or parental responsibility and a contact order. G would then introduce / re-introduced C to F in a child-centred way, working with C – collecting C from M’s home / relative or from school to ensure initial, safe and overseen contact. Unless G encountered a significant problem on behalf of C, contact would continue as directed by the J, G dropping out from the picture.
The whole process would be contained, relatively quick, uncomplicated, non-adversarial, and lawyer-free at court (save for GS who owes a duty to the child and the court). The G would be funded by means tested assessment or public funds.
Quick, effective, low cost, stress-free. Workable?
Less delay, status quo
Power and accountability of GAL, training.
Enforcement of orders
Stephen,
Thank you for taking the time to respond so fully again. I have to say that this sounds, in theory at least, to be a huge improvement on the current system yet, radical as it appears, I’m not sure that any major change to the CA ’89 would be required to implement it?
On the face of it, F and M have arrangements for C in place with a considerable reduction in delay and have been denied an arena to express their hostility (and lawyers to present it for them) All well and good so far.
The few areas of concern (to me, anyway) are already a problem under the current system so are not a criticism.
The main one that jumps out at me is the level of control afforded the children’s guardian. We already have CAFCASS fulfilling much of that role and the failings and inconsistencies of that organisation need little repeating here. If the best of them were to be retrained in the role of children’s guardians, to whom would they be accountable? How would we avoid the level of dissatisfaction currently voiced?
What would be their guiding principles (something more than the rather nebulous “best interests of the child” would be welcome) and would (as I believe is necessary) a grounding in child psychology and child welfare research be a part of that training?
I suppose the other issue which we cannot escape is that of non-compliance with orders. Would you propose anything above and beyond those already provided for which, in my experience, are rarely used and have proved to be something of a toothless tiger? Obviously G would be responsible for this in the early stages and would need authority or access to enforcement remedies.
I don’t think there are any Article 6 implications, because as most fathers will tell you, they have barely got a voice in the courts anyway.
I am always concerned when authors of blogs become prominent in their reply column. So I tread with trepidation!
Northern Lights – thanks for your comments; I appreciate your interest.
Concern 1: the Guardian’s level of control. I agree that CAFCASS is often unfit for purpose and many exhausted officers are presented with workloads that exceed what is appropriate. Guardians under the new scheme would be members of a ‘Guardian Council’, a body designed to regulate their profession, ensure standards, continuation training, and deal with issues, complaints & remuneration. G’s paramount duty of care would be to the child and the court. The entry level would probably involve the grounding you suggest. Additionally, G’s would be supported and advised by an experienced solicitor who is a member of the children’s panel. This would add a further safeguard to ensure good, consistent practice.
Concern 2: compliance. This is currently a scandal, and I sense that courts, perhaps with the best will in the world, have got this badly wrong. What is needed is a culture change, brought about by strict enforcement. That is why I suggest that the child/children will be collected and taken to contact by the Guardian if a parent declines to co-operate. If a parent fails to comply, the Guardian will return the matter immediately to the judge who will require the child to be taken to an introductory session.
This proposal will not deal with every situation. Many parents have a dysfunctional relationship and there will be problems with any proposal.
Perhaps less with this?
Guy – cynical, but correct. Article 6 seems to only apply to the parent having residence of the child.
Stephen, comment away as far as I’m concerned. And just to say – I’m sorry I haven’t been active in responding myself. Once again, the good intention is not matched with time available…
Lucy,
If Stephen’s proposals are put into practice, you may find yourself with an abundance of free time….
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