It occurred to me the other day that the family court has a unique role in the justice system of England and Wales (and most other Anglo-centric jurisdictions). This is because the family court, when considering the matter of child custody and access (to use the old terms) is not concerned with justice. Justice is relegated to being a secondary consideration. The best interests of the child are always of paramount importance. This is how the family court is unique. In every other area of law, the primary goal of the court is to deliver justice. Justice between the parties.
In every other area of civil law, you have a dispute between the parties, ‘A’ and ‘B’. The court do not need to consider the interests of any other party. In family court, the child is not a party to the proceedings. The child is the innocent bystander, really an uninvolved third party. They are uninvolved from the strict technical perspective of not being a party to the proceedings, but paradoxically the child is nevertheless the central and overriding concern of all parties, and the court.
If we remove the emotive features of the case (the child), then we can concentrate on achieving a just result. Judging a ‘non-child’ civil case in the same way as the family court, would involve considering the interests of a non-party to the proceedings, which we would consider silly.
What’s so special about kids?
Family law is the only area of law where the courts have to consider the interests of a non-party. This is because the non-party is a child. Children need to be protected. Ok, I get that. We all do. The question is whether the interests of the child should be paramount, or should be that paramount. Because if they should, and the courts listen to the child (who, in PA cases has been brainwashed) we will never get justice in the family courts. The problem of course is that most lazy judges simply repeat whatever lazy CAFCASS say, and lazy CAFCASS simply repeats what the alienated child says, who in turn simply repeats what the Alienator says. Effectively, then, the Alienator runs the show:
Surely this is a big problem. Imagine a dispute between two companies where an expert’s report is required. Now imagine that expert simply repeating what one side says and the court, in turn, uncritically accepting what the expert says. This is exactly what happens in family court. This is not justice.
But this is why the idea of ‘Fathers for Justice’ is misconceived. Their philosophy involves accepting as a given that justice is something the courts ought to be interested in, but it ain’t. The court is only motivated by the child’s best interests.
But let’s suppose that is OK. That we are all happy with that. So, the question that then arises is:
“OK, what is in the child’s best interests”.
Given that the courts so often restrict contact or refuse to change the child’s residence, despite clear evidence that this child is being psychologically abused, we must suppose, I guess, that the courts think it to be in the child’s best interests to have its relationship with its father curtailed, restricted, or completely demolished. In thinking in this way, the judges are flouting the law. The law (The Act) specifically makes clear that the rebuttable presumption ought to be that it is in the child’s best interests to have both parents in its life. But judges, demonstrably, don’t think so.
The only other conclusion is that the judges do agree with Parliament that having the child’s father involved in the child’s life is a good thing, but that there is some other reason why there should be no, or restricted contact. What could that ‘other reason’ be?
My best guess here is that the courts refuse to ‘do the right thing’ because they are afraid – so much for judging ‘without fear or favour’! What are they afraid of? They are afraid of the political fallout from granting contact with dad, or transferring the child’s residence to the father. They are afraid of Mum’s Net, the Daily Mail, and the whole ‘woke’ community. In other words, the judges are involving themselves in political considerations. They are cowed. This is much like the ultimate sin in comedy: self-censorship. The comedian is afraid to tell certain jokes because of the political fallout. How did the ‘illiberal liberals’ of the left get so much power? Why is everyone (even judges!) so afraid of them.
But judges are literally (and I use that word advisedly) above the law. And that’s how they see themselves.
They are above the law because we, as ‘punters’, have no redress against an indolent judge, an incompetent judge, or a cowardly judge. You can’t sue a judge. You can’t get a judge sacked. All you can do is to appeal. To another judge…