Well, we sort of did. But now we have it. Amongst so many other blessings we can look forward to a Statement of Inquisitorial Intent. You can read all abart it in the Gazette here, or you can read it from the Inquisitor’s mouth in the form of his Sixth Update. He’s got one more to go if he wants to match JK Rowling.
It appears to me that the current system seems to have half of all litigants whinging about how the courts work, and without the proposals, there would be twice as many whinging about the system.
….What is clear is that the courts will have to deal with a volume of previously represented parents. They will not have had the beneit of legal advice to identify solutions to their problems on the merits and demerits of their
proposals. They will not have had identiied to them the issues the court can address before arrival at the court door. They will arrive without professionally advised applications seeking permission to ile evidence. Many
will have no idea what a conventional court process entails and some will have no desire or ability to take it on board.
It may not be good news for Lawyers, but the courts have to do something to head of the inevitable disaster. Letting the Judge decide what he wants to know appears on the surface to be a positive way forward, particularly when faced with two LIP’s that want to endlessly argue about the ins and outs of a ducks backside. (As my Mum used to say, although I dont think she ever used the word backside!)
Simon
Simon. A legal system either relies on lawyers as a central/integral plank of the process of justice, and pays for them – or it doesn’t. Ours doesn’t – not now. Our current system doesn’t ensure equality of representation, but often leads to significant and sometimes decisive power imbalances. Most parents (save for those with a disability) are able to articulate what they want. So now perhaps is a new era for the McKenzie friend. Instead of cases being run in court by lawyers, let parents be advised and centred by a qualified, experienced McKenzie friend who will inform what is needed for the job. If parents are given information on the court process, and have their positions carefully and professionally reality-tested, they can get on and do the job without the adversarial process we currently subject them to.
Stephen,
What, pray tell, is a “qualified mckenzie friend”? There are of course “professional” i.e. paid for mckenzies, some of whom are very good at what they do – but they are wholly unregulated and unaccountable and there is massive variability (in quality and ethics / approach) and no redress or protection for litigants who rely upon them for legal advice (and yes, some mckenzies do give “legal advice” which is not a reserved activity). no doubt there will be a boom in such an industry but I’m not convinced it is necessarily a good thing. It is also worth remembering that not all Mckenzies are necessarily non-adversarial in approach – some can be highly combative.
I think this is generally good news for applicant fathers. It coincides with the government’s intentions to reinforce the notion of shared parenting by amending the Children Act. If the court process can be rapidly sped up too, that can only help matters too.
As a riposte to Simon Walland. You’re wrong, mate and you must be a lawyer to write as you do. Private law cases over children are essentially disputes over parenting arrangements, not law.
What I struggle with is this: the good judges are already adopting an inquisitorial approach where appropriate (not appropriate where there is some significant / crucial factual dispute that needs to be resolved). The ones who aren’t so hot aren’t going to be helped much by a mere statement – they need training and support! And as a very experienced mediator remarked to me today – the danger of a presumption of shared parenting is that it may make matters very difficult to mediate because it will tend to promote a binary view of such issues (is presumption applicable, is presumption displaced?)
Yes, familoo, some McKenzie friends are dreadful. As a group they are not regulated. But so what? There are qualified lawyers who are regulated, but still dreadful. Before the Law Society was invented, solicitors were unregulated. Maybe the market will decide, assisted by the judges who will quickly tell the shocking McKenzie friends what for! As I read Simon Walland’s initiative, here is the beginning of a great idea: McKenzie friends who have been trained to respond to judge’s expectations of their role. So, its a ‘no’ to the mavericks; but a ‘yes’ to the informed, careful and case-sensitive McKenzies that I imagine Simon to be.
Paul, although it is not my role to defend Simon’s comment (I am sure as a McKenzie friend he can do this himself), but isn’t the essence of what he advocates this (rather than law): “to identify solutions to their problems on the merits and demerits of their proposals. They will not have had identiied to them the issues the court can address before arrival at the court door”.
Stephen,
You may be right that the market will perform some sort of self-regulating role in respect of McKenzies but that’s hardly satisfactory and cold comfort for the beneficiary of the less good mckenzie friends services (or those stuck in the list behind them).
There are dreadful qualified lawyers as you say, but I’d like to think that its pretty difficult to remain in practice for very long without that being spotted and dealt with. The system isn’t perfect for sure, but A system has to be better than relying on “the market” to cure all?
Paul,
Having sat in court and listened to unrepresented people arguing about issues which have absolutely no bearing on the issues the Judge is attempting to deal with, show a need for someone to take the initiative and guide the process along the right track.
Arguing about who was the better at getting the children to wash their hands before they ate (yes, really) isnt helping a Judge decide the amount of contact the NRP should have.
If the Judge is able to run the hearing by asking the right questions and cutting out the rubbish, then it should be an improvement.
Two unrepresented parents must be a nightmare. Having seen a previously represented parent lose that support and have to do it themselves, and their case collapsing because they dont know what they are doing, or should do, is not good for anyone, least of all the children.
Stephen, I agree that this may herald a new era for McKenzie Friends, but most parents I come across are not good at articulating themselves in court. Its too emotional and distressing. (Speaking from experience, as I stood in the RCJ in tears)
Lucy, why oh why bring the ‘presumption of shared parenting’ into this thread. You know thats going to incite the troops!
Simon
Simon,
I didn’t bring it into the thread, I was responding to Paul Gilson who had referred to it in his previous comment (no 3).
Lucy
A binary view is a problem, is it, in family law? What about domestic violence then, when either the father has bashed the mother or it’s a relatively clean non-DV case. The DV practice direction doesn’t even contemplate for a moment that she might have bashed him or carried out a myriad of in-between abuse. It’s exclusively about the safety of the resident parent (mother) and whether that has been secured, and never about what effects DV or other abuse might have had on an applicant, his children and the applicant-child relationship. The double standards in family law are breathtaking.
Paul,
I’m not saying a binary view is or is not a problem in family law. I was observing that a presumption of shared parenting may invite a binary approach over and above a broad balancing exercise using the tool of the welfare checklist that may not be helpful for mediators trying to resolve disputes. The contrary argument is that mediation works best in the shadow of the law, and the clearer the law is the more likely a case is to resolve. Whether you therefore think that a presumption of shared parenting will assist mediation success rates in children matters depends a lot on whether you think such a presumption is likely to make the law clearer or not. I think it’s difficult to predict the knock on effects for mediation of the governments proposals (whichever of the 4 is chosen) – it might make things more cut and dried and hence enhance the mediation clear up rate, it might make things more polarised / entrenched and hence adversely affect it, and it might create unforseen power imbalances which again are unhelpful to mediation. I think it’s a valid question to ask given that the twin planks of the governments approach on private law children disputes are to remove legal aid and to corall families into the mediation route.
I don’t agree with your interpretation of how DV allegations are treated in family law. The findings are binary : is X made out on the balance of probabilities. They have to be this way to provide some certainty and factual basis in cases where there is a dispute that can’t be resolved. BUT, courts don’t proceed to make findings unless necessary and purposeful AND the approach the courts take is not black and white as you suggest. There are often counter allegations which are treated in exactly the same way – and allegations of DV are made (and made out) by parents of both genders – often with findings that both have perpetrated violence or abuse.
As you say, family law takes a binary view of domestic violence. In effect this strongly discriminates against fathers. The abusive behaviour and excesses of a resident mother are either missed, glossed over or excused. The way the practice direction on domestic violence reads, it only provides for one-way abuse – by a non-resident parent seeking contact i.e a father, towards a resident parent i.e mother. If you don’t believe me, read the text.
The policy and attitude inherent is based on the Sturge Glaser recommendations which is rooted in presumptious, discriminatory and anti-father attitudes and language. The authors of this report masquerade as respectable child psychiatrists. Yet they turn a blind eye to one of the greatest harms that can befall a child – alienation – and worse, deny and belittle its existence. Child alienation is one of the greatest and most frequent problems that a separated father faces – his children turning against him. Denying alienation is like denying the holocaust in my opinion. And yet this influential report was fully accepted into family law by senior judiciary, with its precepts providing the cornerstone on which their binary view of domestic violence is founded.
Discrimination against fathers in family law is systemic and their treatment in courts often unjust and disgraceful. Why do you think a father’s movement exists and people put on batman suits?
Paul,
You assume that the non-resident parent is always the father, which is often but not always so. The reason that the focus is on the behaviour of the non-resident parent is because it is their application for contact – where the main care of the child is in issue the spotlight will be on both parents.
The Sturge Glaser report doesn’t deal with alienation because it wasn’t ABOUT alienation – the report was about how to deal with cases where one parent IS responsible for physical violence against the other. The fact that the report doesn’t deal with alienation cannot be equated with a denial of its existence.
It’s often forgotten that Sturge Glaser recommendations were not entirely adopted by the Court of Appeal in Re L (notably it rejected the idea of a presumption against contact where there has been dv). And in any event Re L only kicks in when violence has been established. If allegations of violence are not made out, or are found to have been malicious, the case is in entirely different territory.
The fact that a father’s movement exists and that some fathers put on batman suits is not evidence of a failure in the system, it is evidence that some fathers have lost faith in the system, or have a penchant for dressing up.
Lucy
Oh, so the spotlight should not be on a physically abusive or contact-denying, alienating mother? She’s looking after the child so all that behaviour is excusable, is it?
The Sturge Glaser report ignores this. It is predicated entirely on the assumption that the violent, NRP, contact-seeking parent is a father and that the resident parent is a mother fleeing such violence.
The authors say ‘we are not in these questions asked to address the issue of the mother’s part in any domestic violence’. It further states that ‘this complicates the picture less so where the decision that she is to be the main carer is already taken’. Ha ha ha! say I and zillions of other fathers too presumably, where the decision is effectively de facto, taken unilaterally by the mother.
The Sturge Glaser report did in fact deal with alienation, extensively so. It dismissed it as ‘unhelpful’ which of course it would, wouldn’t it? It boldly states ‘PAS does not exist’ in the sense that it is an unrecognised condition, (just as most emerging conditions once were). It very misleadingly states no one claims it to be a syndrome when in fact many researchers at the time did, including its progenitor, and some still do, despite the rescrambled modern versions that are displacing PAS as a form of harm to be taken seriously and addressed in courts. To cap it all, Sturge and Glaser lovingly endorse an off-the-wall, PAS-hating, feminist diatribe written by a discredited researcher (Kathleen Fuller). This ‘research’ is presented to senior judiciary as a supposedly serious rebuttal of alienation – no doubt suitably hoodwinking the 57 old farts who conjured up their DV practice direction, judging from the difficulties fathers now face in alienation cases where the signs are obvious but ignored.
I think you and your colleagues need to go back over the history of recent family law and start revising your views. It should not take 14 hearings over five years for a person like me to build up a semblance of normality in going about my job as father. Thanks to the likes of people like yourself just doing their job to assist a recalcitrant mother, it has. It’s wrong and it must stop.
Paul, My poor recall if Sturge Glaser refers to alienation – it certainly isn’t what the report is about.
The questions in your first paragraph are a misrepresentation of my position, as I’m sure you are aware.
I can’t comment on your individual case.