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PA, DV and the Danes

I was interested to read this piece on the interweb about problems in Denmark, related to domestic violence (‘DV’) and PA, which seem, for better or worse, to be inextricably linked.  As you will see, the piece was written regarding a new book published in Denmark (and doubtless elsewhere) called “The Biggest Power Pig Wins” – a colourful title that betrays, in my estimation, a particular world view.  The author is “connected to a network of more than 200 parents – mostly mothers”.

The first thing to say is that I have not read the book.  But I don’t think that is really necessary.  All we need to know is that there are two sides to all arguments, and here we see the other side, that is, the side of the victim of DV.

I have also undertaken a bit of research into Danish law.  Obviously, it’s different to English law, but the general thrust of it takes us in more-or-less the same direction.  But there are forks in that road, and the Danish have taken one of those forks.

It seems that, upon divorce in Denmark, parents will have joint legal custody of a child or children, and that

“Sole legal custody is only awarded if it is considered to be in the best interest of the child. There is a presumption for shared physical custody meaning that the parent who asks for sole legal custody must prove that the level of conflict is so high that it is in the best interest of the child to establish sole legal custody.”

And that

“A normal visitation schedule for a child above three years is called a “9/5 arrangement”, meaning nine days out of 14 with the resident parent (and five days with the contact parent). The State Administration can also set up less or more contact, up to a “7/7 arrangement”. Holidays are usually split 50/50. It is difficult to obtain a different split even if the contact parent lives abroad and therefore has less every day or weekend contact.”

Now, that’s not perfect, perhaps.  But it’s a lot better than we have in the UK…

Despite some digging, I have not been able to confirm rumours that in Denmark PA is a crime.  If anyone can direct me to a url, that’s be great.

So, back to the book..

We are told that:

“It is assumed that a child’s failure to thrive is not caused by stressful visitation agreements but rather by the lack of cooperation between the parents. Therefore, social services regularly send divorced couples into year-long mediation processes with the purpose of improving their cooperation. Violence is reframed as a ‘disagreement’ for which the parties are given equal responsibility.

Listening to tape recordings of such meetings it becomes apparent that when a victim of violence reacts to verbal abuse during mediation, she is automatically seen as participating in the ‘conflict’. While nothing is done to stop the violations, the protective parent is coerced into ‘cooperation’ using threats that if she doesn’t, the child may be removed.”

If this is to be believed (and I have no reason yet to doubt it), it would seem that the worm has well and truly turned.   The flip side of PA victims not being listened to, and the injustices of that, is that DV victims are not listened to and are seen, falsely, as toxic parents that are trying to disrupt a child’s contact with the other parent.

It is presumably axiomatic that any parent that goes out of their way to sever or disrupt the child’s relationship with the other parent is, indeed, ‘toxic’.  It is also pretty obvious that domestic violence exists and that many women (and men, mind you) suffer as victims of this hideous crime.  But fabricating allegations of DV with the aim of estranging the other parent (usually, but not always, the father) is an equally hideous crime.

So where lies the balance?

Would you rather live in a country where false allegations cause the breakdown of a child’s relationship with one of its parents, or another country where victims of domestic violence are the ones that are marginalised (If indeed that is true)?

Perhaps the answer is going to depend on the numbers.  Which of these outcomes is more common?  I am very confident that there will be no data or that, at least, it will be hard to procure.   Which of these injustices is greater?  I’ll leave that to you, dear reader…

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Judicial Cowardice

OK, so, more thinking, more theories.  Still trying to get in the head of the judge…

I think we can make a simple case for the explanation of why judges are as useless as they are.  This time, the reason is political.   The reason is cowardice.   This theory emanates from my memory of when my mother was in hospital, dying.  She had Alzheimer’s disease and had been on a slow mental decline for a number of years, culminating in mini-strokes and having to be admitted, in the end, to hospital.

I know that, if my mum had been able to express it, she would not have wanted to be a burden.  She would not have wanted a situation where she was completely dependent on others for her food, and all of her personal needs.  She would have asked, in an ideal world, to have her life terminated – to be (to use a pretty horrible word) ‘euthanised’.  But no doctor would do this.  Partly because to do so would be illegal, of course, but the issue of morality comes before the issue of law – that is, we get our laws from our morality, not the other way ‘round.  So, let us suppose for a minute that assisted suicide were legally permissible in England.  Do we think that doctors would then be killing patients right, left and centre?  I suspect not. 

The reason is this.  To carry out a mercy killing, doctors must be brave.  The doctors were not brave.  For example, towards the end when we were deciding whether to feed or not feed my mum, the doctors left the decision to the nurses.  Their excuse was that the nurses are with the patient all the time and are better placed to make this kind of decision.  This was a lie.  All that was going on was a doctor being unwilling to make the big decisions, the tough decisions.  ANY decision.  Because if one makes a positive decision, and one is wrong, one can be criticised.  If the doctor does nothing, she can blame nurses, or the natural progression of the disease.  I call this ‘slopey shoulder syndrome’. 

I use this example as an analogue for what the judges are doing in PA cases.

Judges are simply frightened (so much for ‘without fear or favour’).  Frightened of making a positive decision that might have negative consequences – I mean, how is the judge going to look if she transfers residence of the child to the father and the father then gets the kids in his car and drives off a cliff (this does happen sometimes, of course, although extremely rarely)? 

But judges should understand that a decision to do nothing is still a decision. 

And judges, when deciding to do nothing, know, or ought reasonably to know, that the child will suffer harm.  The judge knows perfectly well what is going on – that the (usually resident) parent is seeking to harm the child by depriving it of a relationship with its other parent.  But the certainty of psychological harm is somehow less of a worry than the extremely remote chance of physical harm if contact is ordered, or residence transferred.  So, the judge makes a political and cowardly decision.  It’s political because, rather than being fearless, logical or proportionate, the judge is worried about a possible leader in the Daily Mail that this judge has ordered the child to go with a ‘dangerous’ parent.  She’s worried about her reputation (and that of judges in general), not about the child’s best long-term interests (which is what the case law and the Act mandate).  So, our judges are cowardly politicians, not fearless at all.

In criminal law, it is possible to murder ‘by omission’ – i.e. by doing nothing, if (and only if) the putative murderer has a duty to the victim.  Doctors, for example, have a duty to save lives so anything they do to shorten it might amount to a criminal offence.  Equally, a parent has the same kind of duty – not to kids in general, but to their own children.  If your child is in danger, you have a legal duty to act.  And that’s because you have a moral duty to act – again, the morality comes before the law.

Now, it seems to me that a judge in a children case has the same moral duty to the child, as the doctor, or the parent.   Morally, she must take action to protect the child from harm.  But legally, there are no repercussions for the judge.  A doctor has this ‘sword of Damocles’ hanging over her head all the time.  A doctor has an ethical and legal duty to act.  The judge has only the ethical duty. 

And we know that this duty is routinely ignored. How is this possible?

Because you can’t sue a judge.  You can’t prosecute a judge for putting a child in harms way.  You can’t get a judge sacked (not in practice).  You, as a parent, and we, as the State, can do nothing. 

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Trying to Understand..

I am fascinated by the Nazis.  Can’t help it.  Serial killers too.  The reason is this.  I do not understand how one human being can treat another human being in this way.  Slavery falls into this category too.

I mention this because I am really trying my best to understand judges.  It seems to be as difficult as trying to understand Nazis or slave-owners.  Maybe trying to understand is just a fool’s errand.

Yes, it’s easy to say that judges are out-of-touch, unenlightened, cowardly and so on (especially as it’s true), but there is one thing I really struggle with.  If it is obvious that judges are being unjust (and you only have to read the case law or read our survey results), why do they do it?  Why is it that we leave the Court of Appeal, time after time, as just another ‘tearful and wholly-deserving’ parent (after eons of litigation)?  Why, in essence are judges just so bloody useless?  What’s in it for them?

I have offered some possible explanations here.

But another occurs.  It’s a ‘psychologistic’ point – that is, it’s about judges as human beings.  What motivates them?  Sure, it could be laziness, boredom or cowardice, and I abandon none of those arguments.  But maybe it’s something altogether more sinister.

How was slavery and the Holocaust possible?  These horrors happened (amongst other reasons) because the Nazis and the slave-owners viewed their victims as ‘other’, as ‘vermin’ as non-human.  Could it be that our judges see us in the same way?   Now, if it seems a bit much to compare judges to slavers or Nazis, consider the possibility (at least) that they see us and our kids as just more cannon-fodder to feed the ‘machine’.  Not only must we pay our taxes to keep them in their positions of power and authority, we must pay again with inflated lawyers’ fees and court costs (which we never get back, even if we win our case which, of course, is unlikely), as we beg and plead with complete strangers to spend just a little time with our own children.  And that’s just the short-term financial cost.  Sarah Squires discusses the longer-term financial costs here.  And then there’s the psychological and emotional costs to both us and our kids…

It must be, surely it can only be, that judges think they are doing the right thing in keeping one parent away from the child.  And how can that be, given that most alienated parents have done absolutely nothing wrong at all.  So, they rationalise.  And their rationalisations invariably amount to something like I was told at the beginning of my case, by District Judge Stewart at Southampton.  He said to me at the start of the case (and this is a word-for-word quote) “I might well agree with you about everything, and still do nothing”. 

Three years later I understood that what he meant was “I do agree with you about everything.  Of course.  I see and hear this all the time.  But I won’t do anything, because I never do.  So, save yourself three years of heartbreak, probably more, and a ton of cash, and just go home and accept your fate.”  

And all of this happens ‘in the best interests’ of our kids…

I wonder how many judges and social workers would commit suicide (like some of the parents we read about on these forums) if they were deprived of their children for weeks, months, years, or for ever?  If I am right, the answer is probably none.  After all, they never see their kids anyway – they’re at boarding school – a great place to learn emotional numbness, and deliver the next crop of robo-judges.  And so it goes on…

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The Life of a Family Court Judge

I spend a lot of time at UKAP.one criticising judges with, I am convinced, good reason.  But principles of equity and empathy require us to try to see things from the point of view of the learned judge…

I do not know any family court judges personally, so I am going to have to guess at what their lives must be like.  Then one might have a better chance of understanding how they make their decisions.

Let us start by thinking about the life of a judge in the Queens Bench Division (‘QBD’). 

The courts have these ‘Divisions’ – Queens Bench, Family Division, Criminal Division and ‘Chancery’.  Family and Criminal are self-explanatory.  Chancery deals with all the esoteric stuff like Court of Protection cases.  QBD deals with all the stuff that’s left over – personal injury cases, breach of contract, defamation and so on.  So, if you’re a QBD judge, your life is extremely exciting I’m sure –  a different kind of case every day.  You may think of judges in other divisions as specialists and QBD judges as ‘GPs’.  Or you may think that QBD judges are better judges as they have to keep abreast of all kinds of law.   It is very difficult to stay up-to-date even if you specialise in one area, so your plate must be really full if you have to keep abreast of developments in multiple areas of law.

But the Family Court judge specialises.  Logically, this ought to mean that she is a better judge.  After all, she has to keep up-to-date with only one area of law.  Further, there are only two main things to deal with – cash and kids.

Presumably it is important to deal equitably with both types of case.  That’s why ‘cash cases’ start from a presumption that each party gets half (White vs White).  But the same rationale does not, demonstrably, apply to child cases…

So, back to the life of a Family Court Judge.  What must it be like to adjudicate on child cases?

The simple answer is:  BORING!

The life of a Family Court Judge is going to be the same kind of life as the factory worker putting cherries on Bakewell tarts, or strangling chickens on a production line.  Unlike the lucky old QBD judge, the Family Judge does the same thing every day.

Cash vs Kids

Pretty much all cash cases will involve hubby saying ‘I built the company up from nothing – it’s my hard work that got us here – that’s why we’re loaded’.  And the wife replying, ‘that’s true, but who do you think has been bringing up the kids whilst you did all this hard work?  I want half – our overall contributions have been, broadly, equal.’  And the law says ‘well, following White (above) that’s true – I have to start by assuming a 50-50 split – either side can lobby for more than 50%, but that’s where I start – I’m going to need a good reason to stray from this presumption.’  Sounds reasonable.

And pretty much all child cases will involve the wife saying ‘You never saw the kids, you were busy working all the time.  I get the kids!’ and the husband replying ‘that’s true, but what facilitated our lifestyle – how was it that we were able to give our kids the great life they’ve had? My hard work!  Broadly, our overall contributions have been equal – I want half!  And, for exactly the same reasons, he should get half.  But he doesn’t.

The courts seem to be suffering from ‘selective logic’.

Sorry, strayed off the point a bit there…back to the judge’s life.

Any lawyer (or Litigant in Person) will tell you that judges are short-tempered and impatient.  Judges have usually made up their mind long before any lawyer gets on his hind legs.  But is that surprising?  The poor old Family Court Judge hears the same arguments every day, over and over again.  Wife denying contact?  Heard it!   Boring!  Husband hiding his pension?  Woah, that’s a new one!  See what I mean?  A family court case is just another chicken that needs strangling, just another cherry on the Bakewell tart.

As if all that wasn’t depressing enough, the poor old judge has to listen to family lawyers droning on and on, making the same point (in different ways, if you’re lucky) over and over again.  The same arguments she heard in the previous case, and the one before that.  The same arguments she is going to hear tomorrow, and for the rest of her God-forsaken life!

Ladies and Gentlemen – some sympathy please!

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The Winds of Change?

Are we getting somewhere?  Are the times a changin’?

I was much-chuffed to read the judgement in Re L 2019.  My feeling is that we are starting to see some judicial enlightenment on this subject. 

In this case, the mother was found not to have alienated the child from the father.  Nevertheless, the child was ordered to live with the father, and the mother appealed.  The appeal was dismissed.

I think this case does support my argument that we should not use the term ‘Parental Alienation’. The original trial judge found that the mother displayed various unhelpful behaviours, but that these fell short of being describable as ‘Parental Alienation’ or ‘Implacable hostility’.

This is interesting. The mother alleged sexual impropriety by the father. That was determined by the judge “to a very high standard of proof that there has been no sexual or physical abuse by L’s father of his son.”

But no PA..?

The judge had ‘grave concerns’ about the possibility of the mother undermining the child’s relationship with its father, but adjourned the case to find out more…A Guardian was appointed for the child. So it was left hanging…The judge acknowledged that everything might be ok (pretty obviously yet another victory for hope over experience), but that it was quite possible that the matter would return to court. The Guardian (CAFCASS-appointed) concluded that the child should live with its mother – for the sake of ‘stability’. But the report concluded:

“…I have confirmed in this report that L is safe in the care of (father). (Mother and grandmother) must accept this. They must also accept that they have created a situation where L returns to their care and shares aspects of his spending time that are not necessarily true and they facilitate a manipulation of or put words into L’s mouth. However, if (mother) cannot accept this at the next hearing then I would be inclined to consider more greatly that a change of residence is necessary.”

Six months later yet another CAFCASS officer records that matters had now worsened for L considerably so that:

“L described his mother entirely positively and his father entirely negatively. L’s responses to his father during supervised contact appear to show little concern for his feelings and he required no prompting to say that he wanted no contact with his father.”

Still no PA…

Another CAFCASS officer reported:

“I observed L and his father to have a highly positive, close and fun relationship with one another. It was entirely obvious once L was able to relax and have fun that he feels comfortable in the presence of his father and he presented as a very happy, excited and joyous child. I found there to be no concerns with the quality of their relationship or with the care and attention the father provided L.”

Still no PA…!

The judge went on to hold that the mother contributed to the situation so that L was “not allowed the emotional space to express positive feelings about his father and, in contrast, received emotional reward for expressing negative views.”

Still not PA?!

Dad was due to take child on holiday, but the mother failed to provide the child’s passport at the airport. The evidence was that she had had it with her at the airport..The police were called and the passport made available.

Still no PA…

and the judge, as if shoring up his earlier observation said, of the behaviour of the mother (and particularly the maternal grandmother)

“If I look to the future, I am afraid I see more of the past. “

The judge concluded that, despite short-term problems that may arise, the child should live with his father.

“The Guardian had undertaken some work with L and, as a result of her assessment, she held back from asking him the central question [pertaining to ascertainable wishes, not merely expressed wishes] because she considered that to do so might cause him harm. ” Wow. Good old CAFCASS…

The mother’s appeal (against the Transfer of Residence Order) was dismissed.

So, this seems like a good decision, and it is. But – if all of the matters listed above do NOT amount to PA, we are left wondering, ‘well, what does?’

The next question we should ask ourselves, is ‘why does it matter?’. Who cares if any particular behaviours amount to PA? The point is that the judge’s analysis of the situation is that the mother has turned the child against the father and cannot be relied on to facilitate contact. Call that PA if you like. Call it ‘Bob’. Who cares – we get to the right result.

But clearly judges simply do not like this label. Judges don’t like anything with an ‘ism’ on the end – they hate ‘syndromes’. They hate psycho-babble. Many will still look askance at illnesses like PTSD, Repetitive Strain Injury, Munchausen’s by proxy and so on. So – just be careful how you frame your argument. Do not ‘label’.

Well, let’s leave the judges to their petty pedantry. It really doesn’t matter. Let’s just understand that (pre-judicial enlightenment) using the label PA will hurt your case – simple as that.

And, as long as we can avoid that, maybe we are seeing the tide turning…? This is a very good decision from the most senior family judge, who has promised to improve things. See here his address to Families Need Fathers.

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Fighting the ‘Escalator’ effect

Opinion

I was reading today some comments in the Guardian from Lord Justice McFarlane, the new President of the Family Division.  He says that trying to keep up with the demands on the Family Court system is like trying to run up a ‘down’ escalator.  That is certainly true.  Recent figures from the Ministry of Justice show that demand has increased (this is due mainly to a rise in domestic violence cases – this rise followed a landmark ruling in the Court of Appeal to the effect that a victim of DV can procure Legal Aid without evidence).  Be that as it may, the bottom line is that there is pressure on the system.

Fortunately there is a simple solution.   And it’s not to bring back Legal Aid (the same MoJ report shows that cases where the parties represent themselves get resolved quicker than when parties are represented by lawyers).

But how about this:  If judges did their jobs properly, many court applications would be unnecessary.  In contact and ‘change of residence’ applications, the courts tolerate repeated infractions from litigants – judges do nothing when their Orders are ignored or when recalcitrant APs again fail to show up for hearings.  Cases are adjourned.  There are endless ‘reviews’, and a lot of ‘hoping’ from the judges.  If judges were robust (like Mrs Justice Parker and HHJ Gordon-Saker, HHJ Lochrane and a few others) a clear message would be sent – ‘The Courts will not tolerate contempts of court, like lying, disobedience, false allegations, and ignoring court orders.’

Then, parents denied contact would get contact and they wouldn’t have to keep bouncing back to court to try to enforce contact.  Court time would be halved, or better.

My message to the learned Judge is simple – ‘It’s the fault of you and your Brethren – sort it out!’

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The Family Court’s Bias towards women, and why feminists should be worried

As a dad (yet another ‘tearful and wholly-deserving father’, to use the courts’ stock phrase) who’s been through the nightmare of family court litigation, I can conclude, 3 years and £20k later, the following:

  1. CAFCASS is biased towards mothers;
  2. Judges are biased towards mothers.

There is plenty of evidence to supports both claims, and I will not rehearse those here.  What interests me is the following question:

Why, when courts, CAFCASS and everyone else knows exactly what is going on, do courts consistently fail to punish parties (usually mothers) who fail to comply with court orders (only 1.2% are enforced)?   Mothers persistently breach contact orders and refuse to engage with the legal process.  They obstruct contact using the flimsiest of excuses.  And they make false allegations to keep dad away.

My point is that the courts know exactly what is going on – judges see this all day, every day, and have been doing so for years. So much so, they often don’t even bother investigating allegations from the AP that the TP has misbehaved in some way. Invariably, of course, the TP’s ‘misbehaviours’ only start after the couple have separated…that fact alone should alert the court to the possibility (?probability) that the allegations are false.

More evidence that female judges are best in this kind of case?

My answer to the question is this:

The courts are profoundly conservative.  Judges believe that a woman’s place is in the home.  Children belong with mothers.  This is a woman’s job, right?  To look after kids.  The dad’s job is to go out and work and bring home the bacon, and ne’er these twain shall meet. 

Social workers, on the other hand, are liberal-progressives.  They believe that the child should choose where he lives, ignoring the very obvious possibility that the child may have been manipulated into hating/fearing his dad (as in re H 2014, for example). 

So – we have a strange and unholy alliance, between conservatives with their Idée Fixes, unenlightened to the simple, slap-in-the-face-obvious fact that women now work, and some men stay at home, and woolly-headed liberals who believe that a child has the first clue about where its best interests lie (that is, the criterion used by the Children Act 1989).  The conservative judges back a regressive politic – society has moved on!  And the social workers back a nonsensical philosophy of letting the child choose – a cowardly abnegation of their duty.  

Let us approach this problem with fresh eyes.

There are now many women that work both full-time and part-time.  There are many men who want to be with their kids as much as possible.  Many men make better carers than many women, and many women make better employees than many men.  In short, gender is a pre-determinant of precisely nothing. 

If we must ‘label’, let us not be feminists, misogynists, misandrists, progressives or conservatives.

Now is the time for the egalitarian.

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Do we need Specialist Social Workers?

Do we need specialist social workers?

We have already highlighted the need for more specialisation for lawyers.  UKAP argues here for the need for more specialisation for social workers also.

Introduction

The chief problem with social work in this field is an in-built prejudice against men.  This is highlighted in a recent report from the University of East Anglia.   Too often social workers are focussed on the potential problems with fathers, rather than the potential benefit a father brings to a child’s life:

“Bringing organisations into step to support better practice Engaging fathers should be seen as everyday practice in child protection. Better engagement may require organisations to tackle structural and cultural barriers to fathers’ involvement. This includes challenging deep rooted assumptions about gender and parenting, where the father-child relationship is often seen as secondary and where the child protection system tends to prioritise mothers over fathers. Workers need confidence that managers will support them in this and managers themselves need to challenge risk-averse, procedurally driven culture and practice. These actions should be considered part of local authorities’ duties under the Equality Act 2010”

So yes, there are some deep-rooted assumptions about gender that need to be tackled.  Why are these assumptions there at all?

Well, firstly let us assume for the moment that most offences involving violence or sexual abuse are perpetrated by men. 

Secondly, domestic abuse in particular, can take many forms.  Violent abuse is easily visible.  There are scars, fractures, bruises…evidence

Social workers see a fair amount, presumably, of this kind of abuse.   To make a psychologistic point, it is going to be hard to retain your gender-neutrality, as a social worker, if most of your time is spent rescuing/counselling women who have been the victims of obvious physical violence.   Is it any wonder that you would have a particular view about gender?  Surely even the most intellectually robust and independent individual would have a hard time maintaining a strictly gender-neutral view of the world.  And, given that world view, is it any wonder that you would privilege allegations against absent fathers?   Further, if you are used to seeing horrible physical injuries to both children and women, is it any surprise that you would dismiss psychological harm suffered by a child or an absent father?  You could easily imagine a social worker saying

“Psychological harm, even if it exists, is nothing compared to the physical harm I see every day.   Don’t talk to me about this ‘Parental Alienation’ nonsense, I have kids here with REAL problems that need to be cared for”

The whole point here is that, given what social workers have had to deal with routinely to date, it is hardly surprising that they have the world view that they, demonstrably, do have.  They are going, surely, to discount allegations of PA, and to privilege allegations of violence.

What is the solution?

Well, just as it’s a good idea for a lawyer, or a doctor, to specialise, so it must be a good idea for social workers to specialise.  Some social workers should stick to cases involving violence or sexual abuse, and others should specialise in psychological abuse (PA being an obvious example).  Those social workers could do their Continuing Professional Development with mandatory courses on PA.  They could then be accredited in this field.  And they should deal only with PA cases.

PA is a massive feature in high-conflict separations.  It is hard, isn’t it, to imagine a high-conflict case where PA is absent? 

Objections

Well, it could be argued that PA specialists will develop an opposite prejudice.  If all you do all day is see men who are falsely accused of violence and women who routinely make such allegations as part of their overall strategy to keep the man away from the child, are you not going to develop a world view precisely opposite to that of your colleagues that deal only with cases involving true allegations of violence?

We don’t believe so. 

We should remember that the victims of PA (apart, of course, from the children) are both men and women.  In cases where women are the alienated, or target parent, false allegations are made against them that they are mentally unstable, or perhaps promiscuous. It’s exactly the same as when men are alienated but the false allegations often have a slightly different flavour.  We don’t think that having specialist knowledge in PA will make a social worker biased in favour of men.

Conclusion

Getting social workers to specialise in PA can only help alter existing attitudes (prejudices?) about men, women, and gender-roles in an ever-changing societal landscape.

Making PA a Crime

You will see elsewhere that I advocate making PA a criminal offence, as well as a distinct tort.  Well, I have found a lawyer that ‘gets it’ – and these are rare.  The lawyer is June Venters QC, and her article is here.

I have to say that it is refreshing to find a lawyer that seems to understand this area of law.

Here is the case to which she was referring.  What I am not clear about is what Order HH Judge Bellamy actually made.  Perhaps I am missing something?

The Problem with Parental Alienation

The Problem with Parental Alienation

As an alienated parent, I think about PA a lot.   The thing I find hardest to understand is this:

How come I get it, and can explain it to anyone in 5 minutes, yet judges and CAFCASS workers don’t get it?   Courts sometimes take ten years to work this stuff out, if they work it out at all.  After a lot of contemplation, I think I have finally found the answer. 

It’s not that they don’t get it.  It’s not that they can’t get it.  It’s that they WON’T get it.  They REFUSE to get it, because it shakes their world view.  THEY ARE AFRAID.   I think the penny finally dropped with me when I read the results of our survey, when one respondent said that he got a report from an expert – he said:

“Amazing report that was dead on accurate: took 19 hours of interviewing and 8 psychometric tests of both parents, child and grandparents on each side. Diagnosis V995.51 (child abuse) and v61.29. Alienator showed in test to get MAXIMUM score on narcissism test. 220 page report from the psychiatrist and….Judge said PA was an American thing and the report was waffle!”

It reminded me of an example quoted by Dr Ludwig Lowenstein, where he tells of a case where he was involved as an expert.  This was ‘back in the day’ when each side instructed their own expert.  He was the expert for one side (it doesn’t matter which) and there was an expert for the other side.  BOTH experts agreed that one parent was alienating the child from the other parent.  But the judge still left the child with that parent…

Temporal Relativism

You know, I heard Judge Stephen Wildblood talking on FNF (Families Need Fathers) about this last year.  He made the observation that, when he started out as a lawyer 37 years ago, the prevailing view was that you never, as a judge, ordered that a child live with a same-sex couple unless there was literally no alternative.   He asks how we will look, in 37 years’ time, at the way we are dealing with PA cases now.

Alan Turing is often called the father of modern computing. He was a brilliant mathematician and logician. He developed the idea of the modern computer and artificial intelligence. During the Second World War he worked for the government breaking the enemy’s codes and Churchill said he shortened the war by two years.  He was also a homosexual.  In 1952 he was convicted of ‘gross indecency’ and chemically castrated.  Two years later he committed suicide.

There was a time when, if a man criticised his friend for owning slaves, that he would be thought a fool, and would be derided for it.  There was a time when a person would be thought a fool to argue in favour of universal suffrage.

I could go on, but you get the point.  Now, homosexuality, universal suffrage, same-sex marriage, and the abhorrence of owning slaves are all “mainstream”. 

There will come a time when future generations will be astounded that we treated alienated parents as we do, and that we allowed our children to suffer at the hands of narcissistic-toxic abusers.

At UKAP, our job is to hurry that process along.  Let’s not wait 37 years – PLEASE!

How?  EDUCATION, education, education!  Judges and CAFCASS need to be educated, and become enlightened, exactly as society needed to be enlightened about slavery, homosexuality and universal suffrage.

Parental Alienation is WRONG.

The Paramountcy Principle

The Paramountcy Principle and 50-50 Shared Parenting

Intro

The principle of 50 – 50 shared parenting is gaining ground across the world.  But how does this affect the Paramountcy Principle, and what effect will 50 -50 parenting have on our children?

Definitions

The Paramountcy Principle is the principle highlighted by the Children Act 1989.  Essentially, it says simply that, whatever other considerations are in play, the welfare of the child shall be the court’s paramount consideration.  Further, the case law makes it clear that the longer-term welfare of the child ‘trumps’ short-term considerations so that it is, for example, profitable (for the child) to enforce contact or change residence if these improve its longer-term outlook, even if there will be short-term difficulties.

50 – 50 Parenting usually means there being a rebuttable presumption that, on separation, the child spend 50% of its time with each parent.  The point is that the presumption is rebuttable – that is, that where 50-50 parenting is not the best solution for a particular child (perhaps one of its parents works on an oil rig) the court can make another order.  Also, 50 – 50 parenting will usually be off the table if one of the parents has been violent or abusive.

Conflict or Harmony?

One question that arises immediately here is how these two ideas ‘fit’.  Some people have said that the Paramountcy Principle must remain paramount and that the court’s hands should not be tied by a 50 – 50 Order.  Others might argue that the idea of the ‘child’s best interests’ is too loose of a concept, leaving judges and social workers too much leeway in make recommendations and Orders.

UKAP argue this as well.

We feel that these two principles ought to be able to co-exist quite happily.  The simple reason is that, if the ‘best interests of the child’ is too loose a concept, then 50 – 50 parenting helps ‘tighten up’ the definition.

The Conservative party had an opportunity to introduce 50 – 50 parenting with the Children and Families Act 2014 (helpfully subsumed into the Children Act).  They backed away from this, when push came to shove, and we got, instead, a meaningless, watered down amendment to S2 of the Children Act, which says

“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

So, we have a rebuttable presumption that SOME contact from both parents will benefit the child, BUT that contact can be minimal, even ‘indirect’ – meaning that you can send your kids a couple of emails a week, or, if you’re really good, a Skype call.  So you go from seeing your child every day, hugging and kissing them, taking them to school and after-school classes, football practice, doing their homework with them (for them?!) and all the rest of it, to two emails a week…

Is that justice?  Is that in the best interests of a child that loves and wants to see both of its parents as much as possible?

Let’s have 50 – 50 parenting now.

Now…there is a small rift here between England and America – a possible disagreement about where the emphasis of our focus should be.  Some in England feel that America has a very ‘rights-based’ culture, and that this is a bad thing.  It is a bad thing because perhaps it distorts and skews society – because ‘rights’ is often a zero-sum game – that is, if you give rights to one group, you run the risk of necessarily taking rights away from another.  Further, this kind of idea misses the point – the point being the best interests of the child, not the rights of either parent.

But 50 – 50 parenting is not about the rights of the absent parent (typically, but not always the father).  Here is an observation from Annika Saarikko, Finland’s minister of family affairs and social services.  In Finland fathers spend more time with school-aged children than mothers, to the tune of eight minutes a day…

“This is a question of gender equality, but it’s more a question of the rights of the child,” says Annika Saarikko, Finland’s minister of family affairs and social services, one of six female ministers out of a cabinet of eleven. “This is not about the mother’s right or the father’s right – but the child’s right to spend time with both parents.”

Hear, hear!

This simple observation gives us the way forward.  Far from conflicting with the paramountcy principle, 50 – 50 parenting helps define it. 

But let’s suppose we ignore the child for the moment.  We agree, don’t we all these days, that women and men should have equal rights in the workplace.  You don’t need to be a feminist to believe this, merely an egalitarian.  And, if you are an egalitarian, you would presumably agree that men and women should have equal rights with regard to the upbringing of children.

OK, that’s simple, surely.

Now, let’s re-introduce the child into the equation.  Let us consider all of the ways that 50 – 50 parenting (which we have already established is fair between the parents) might harm a child.  It is hard to imagine a lot of situations where the fact of a child seeing both of its parents equally is going to harm the child, isn’t it? 

The only obvious one really is if one of the parents is abusive, and here we have to consider the position pre-separation.  Did the parents have roughly equal, and plentiful contact with the child pre-separation?  It is difficult to imagine then, that one of these parents developed these abusive tendencies at the precise time of the separation, absent some kind of psychotic breakdown.  One look at the case law shows us that false allegations against absent parents are made as a matter of routine, by narcissistic-toxic parents that are seeking to exclude the other parent from the child’s life.   Further, we know that judges hardly ever seem interested in these allegations, precisely because of this fact. 

UKAP is of the view that ‘the child’s best interests’ is too woolly a concept and leaves far too much interpretation in the hands of a system that simply will not got the message that both parents matter.  A rebuttable presumption of 50 – 50 parenting will give ‘the system’ a big, much-needed clue about what exactly the child’s best interests ought to look like ‘on the ground’.