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Judicial Meetings with the Child

A meeting between the judge and the child in a family case is quite a fashionable idea.


There are Guidelines as to what is allowed and what is not allowed. The only one with which we are concerned is the criterion of not using the judicial interview to elicit evidence from the child. Somehow evidence is, on the one hand, to be avoided like the plague, whilst, on the other the judge needs to ‘hear’ the child. There is an inherent and uncomfortable tension between these competing goals, a tension that can and should be probed a little. And there is a more fundamental question: why are judges having these meetings at all? Let’s take these questions in reverse order…

Why have Judicial Meetings with the Child?

For me, we need to look at the same arguments that are adduced in the case of ‘Wishes and Feelings’ reports. We need to work out why we care what the child wants, or says it wants. Why are we asking our children where they want to live or how often they want to see either parent? These questions are simply too important to leave to children. This is just woolly-headed liberal nonsense. It’s part of a culture that insists we give power to children over issues that concern their welfare.


Do we ask the opinions of our children about going to school or to the dentist? Of course not. They go, because we make them go. And we do that not because we are bullies or ogres, but because we love them and want what is best for them.


The case law (and I won’t rehearse it – it’s all on this website) makes it abundantly clear that the way the law works is as follows:


Expressed wishes are ‘trumped’ by ascertainable wishes;
All wishes are ‘trumped’ by the Paramountcy Principle (ie, the child’s best interests);
Long-term best interests ‘trump’ short-term best interests.
In other words, the child’s best long-term interests trump all other considerations.


If that is right (and it is), it is surely incoherent even to ask the child about his wishes. What on earth are we doing? We are seeking an abnegation of our responsibility as grown-ups – as parents and judges. It is our job to decide what’s best for our children, not the child’s job! Seeking the child’s wishes (expressed or ascertainable) is simply abject cowardice.
Indeed, the whole process is not one that should involve the child at all. These are adult matters. Should a child be deciding at the age of eleven whether he goes to school, sees both his parents, goes to the dentist, plays on motorways? The whole idea is utter rot.


And if that is right, there’s no need for the child to meet the judge. Indeed, it’s a positively bad idea. In Parental Alienation cases (or implacable hostility cases, intractable contact disputes or whatever one wishes to call them), the child is simply programmed by the alienating parent. So there is another reason (were one needed) why getting at the child’s wishes is a waste of time and, worse than that, positively harmful to the child’s best long-term welfare needs. We’re not getting at the child’s true wishes anyway.

It follows that all discussions with the child are a waste of time and a cowardly abnegation of our duty as parents and judges. And if that is right, we should abandon all such discussions (whether with CAFCASS or judges). It further follows that we do not need to worry any more about whether such interviews do, or should, procure evidence from the child – the point becomes moot.


But, just in case you don’t ‘buy’ this argument, let’s look at the second question.

What is the difference between ‘hearing’ the child and attempting to glean evidence?


In the Guidance, we are told:

In England and Wales in most cases a child’s needs, wishes and feelings are brought to the court in written form by a Cafcass officer. Nothing in this guidance document is intended to replace or undermine that responsibility.


So, CAFCASS get the evidence, not judges. Judges should wind their necks in. Who do they think they are, trying to get at the truth?
Consider also that

The purpose of these Guidelines is to encourage Judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task


“Connected”? God help us! Who drafted this drivel?


The only involvement a child should have in proceedings like this is being told what has been decided. And, even if it’s a good idea to involve children, we should have a better method for determining their true wishes than using CAFCASS officers, only 2% of whom have been on the (non-mandatory) Parental Alienation course.


The difference between ‘hearing’ the child and attempting to glean evidence was examined in a case involving Mrs Justice Parker, who, as you may remember is the best judge in Christendom. In this case, Mrs Justice Parker was wrongly overruled by the Court of Appeal. The case is Re KP (A child) [2014] EWCA Civ 554. And when I say ‘wrongly’ what I mean is that the Court of Appeal’s judgment whilst (probably) correct in law, was nevertheless a(nother) slap in the face for justice. Allow me to explain.


I’ll start with a question. Which judge is the most aware of the hopeless ineptitude of CAFCASS FCAs? Probably Mrs Justice Parker. Let us remind ourselves of what she says in re H [2014] EWCA Civ 733

“I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message. …. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.


I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment…”

The point is that CAFCASS officers can be a bit thick.

How to counteract that? Well, have a judicial meeting with the child and try to tease out the child’s true wishes. So, that’s what she did in re KP (above). In trying to do the right thing, she seems to have overstepped the mark, and used the judicial interview to procure evidence from the child. She asked 87 questions of the child in all. That seems to have been a bit much for the Court of Appeal, who overturned Mrs Justice Parker’s decision to let the child go with her dad to live in Malta.

Submissions, evaluations, cross-examination and ‘expand and explain’


Mrs Justice Parker indicated that she was entitled to evaluate the wishes and feelings of the child. Here, those ‘wishes and feelings’ amount to the child making ‘submissions’, not adducing evidence, and so questions about these submissions were not ‘cross-examination’, but just an attempt to get the child to ‘expand and explain’.


Now, on the face of it, that seems ok, because the Guidance makes clear that it is not the purpose of the meeting to glean evidence. As counsel for the mother argued though, whatever the purpose of the meeting, evidence was going to come out. Indeed, it is hard to see how that could be avoided. So Mrs Justice Parker did procure evidence and did then rely on that evidence in coming to her decision.


At para 38 of the judgement, the Court says that counsel for mother

“was therefore critical of the judge’s assertion (paragraph 18) that it was permissible for her “to probe what [K] said not by in effect cross-examining her but by asking her to expand and to explain”. Mr Turner described the judge’s description as “mere sophistry””


And, to be honest, that sounds right, loathe though I am to criticise Mrs Justice Parker. Still, I can rest assured that she won’t care a jot about my opinion…


Yes, this distinction is probably sophistry, but all done with the best possible motive – to get at the truth. And as CAFCASS are so (demonstrably) hopeless at that endeavour, someone’s gotta do it. And it seems to me that a judge would be the logical person. But that ain’t allowed…


And that takes us back to the first point. If it is true that judges are not allowed to stray into the role of evidence gathering at these interviews, we surely have to wonder as to the point of the judicial interview in the first place.


Oh yeah, I remember now. To make the child feel more ‘connected’.

Featured

The Disgraceful case of ‘S’

What appears below is an amalgam of three cases – all concerning ongoing litigation about the same child.  After more than a decade of litigation father is forced to give up on seeing his son again, and leave the court as just another ‘tearful and wholly-deserving father’.  For my money, this is probably the most disgraceful family law case there has ever been.

 

Case 1 – TE and SH and S [2010] EWHC 192 (Fam)[1]

This case was decided in January 2010 and concerned a child, ‘S’ who was, at the time, 11 years old.  The judgment concerns the father’s application for S’s residence to be changed.  This case had been before this judge several times before – the father issued his first application for a contact order in June 1999.  

The judge says:

‘141. Having listened to the father as he gave his evidence, he impressed me as a devoted father who is committed to his son. At times during his evidence he was quite tearful. He is clearly devastated at the breakdown of his relationship with S. He said, movingly, that this present situation isn’t just S’s tragedy or his tragedy but is a tragedy for S’s siblings, his grandparents, his cousins, his aunts and uncles. He said that ‘if ever we go out for a meal there is always an invisible guest there’.

‘142. However, it is also clear that the father has great difficulty in foreseeing the consequences of his actions. For example, whilst I have no doubt that his decision to seek DNA tests was, as he says, intended to underline to the mother the fact that he is S’s father, with all that that implies, I equally have no doubt that he gave no thought to whether that step might be perceived by the mother as a hostile step implying a slur on her character. In other words, he was unable to foresee that a step which he hoped would have positive consequences might in fact have very negative consequences. Similarly, his applications for permission to change S’s name and for him to be educated in the independent sector, no doubt both worthy aspirations in his mind, were likely to have and did have a negative impact on his relationship with the mother. Given that contact was at last progressing reasonably well at the time he made those applications, it is unfortunate that the father did not have the foresight to contemplate the damage that might be caused by making those applications.

‘143. The events of early January 2006 provide the most powerful testimony to the father’s inability to foresee the consequences of his actions. Although the description of his conduct as being ‘over-zealous’ still rankles with him, I am satisfied that it is an apt description. The repercussions have been profound. Having over the years put so much effort into successfully establishing a meaningful relationship with his son, all of that good work was undermined by his over-zealous response to S’s apparent disclosures. ‘144. That said, it would not in my judgment be either fair or appropriate to conclude that in terms of the complete and utter breakdown in the contact arrangements the father is wholly responsible.’

 

This kind of analysis of the father’s behaviour is wholly reprehensible.  How the fuck do you expect a father to behave in these circumstances?  Dad here is being marginalised, his relationship with his child deliberately derailed and frustrated, and then he’s criticised for losing his rag a bit now and then.  I am tempted to wonder how old Cliff would react if we took his kids away from him, denied him contact with them, and messed him about for YEARS over contact issues.  If any father reacts to such treatment with calm Bjorn Borg-like Swedish equanimity we would surely regard that father as a very weird fish.

Of the mother, Judge Bellamy is critical, enumerating several instances where mother frustrated contact and concluding:

 

Whereas I have found that some of the father’s actions have been carried out without any insight at all into the likely consequences, I am in no doubt that this mother does have insight into the likely consequences of some of her actions. In my judgment, when taken together, and in the context of the whole of the evidence before me, all of this strongly suggests that in truth this mother has no real wish to see contact restart.’

 

This was in 2007.  Because of Bellamy’s limp-wristed approach, the matter came back to court and in 2009 indicated of mother that

“there are a number of factors in the evidence that lead me to believe that the mother is still not as enthusiastic about reinstating contact as she would have me believe. I list just six of them:

(a) For three months after my earlier judgment, her continuing refusal to accept voluntary maintenance pending the making of a new CSA assessment.

(b) Her response to S’s behaviour when Dr W visited her home.

(c) With respect to the planned encounter at the place of worship, her telephone call to Mrs K, rather than to the father, to discuss S’s distress prior to this event; her

decision to invite the father to the place of worship notwithstanding her awareness of her own father’s clear view that it was not the done thing for her and the father to be seen together at the place of worship.

(d) With respect to the planned encounter at the cross country event, her failure to tell S’s Head Teacher that she had invited the father to attend the cross-country race; her delay in telling S about this event; her decision to invite the father to this event notwithstanding her understanding of the importance of that event both for S and for the school; her attempt to discuss S’s adverse reaction with Mrs K on the morning of the event; her failure to discuss his reaction with the father.

(e) With respect to S’s education, her rejection of the father’s request that he should attend Parents Evening with her; her failure to consult the father about choice of secondary school; her general failure to recognise the significance of shared parental responsibility in matters relating to S’s education.

(f) With respect to indirect contact, her failure adequately to reprimand S for his rudeness to the father during telephone conversations and for his failure to acknowledge gifts received from his paternal family.

 

And yet that

 

Having said all of that, I do accept that the mother has made some progress since the last hearing. I do accept that she has tried, though I am not wholly convinced that her intent has been to commit to making contact work. It is equally possible that her efforts have been intended to persuade the court that she has tried her best to make contact work.’

 

Astonishing.  How many times does old Cliff have to be told before he gets it?  And in the meantime, the alienation deepens, as we shall see.   Is he just S-T-U-P-I-D?

Two experts were involved, a social worker called Ms K from NYAS (useless, woolly-headed and over-involved) and a ‘Dr W’ whose evidence, broadly, was accepted by old Cliff.  I don’t know, but I am willing to bet that Dr W was Dr Kirk Weir, a renowned expert in the field and well-known to my own judge, judge Stewart, apparently.  Dr Weir is excellent though unfortunately now retired.

But he seems to have bottled it – Dr Weir said:

 

‘I would support a change of Residence if there was evidence that S suffered emotional harm and/or abuse as a result of care given by the mother. I would not regard the presence of “alienation” in S as sufficient to conclude that the mother caused emotional harm and/or abuse.”

 

“On 13th December 2007, by consent, I made a residence order in favour of the mother. The father had indicated through his counsel on the first morning of that hearing that he would consent to that order. I said that I had ‘no doubt it was right for the father to agree to a residence order in the mother’s favour’ (paragraph 145). However, it was clear that the father’s consent to that order was, in one sense, tactical in that he hoped that by making it clear that he was not intending to disturb the residential status quo S and his mother would feel more secure and that S’s approach to contact may soften. In her evidence the mother herself had said that the making of a residence order would ‘go a huge way to help S to feel secure’ (paragraph 112). Despite the making of the residence order in favour of the mother, S’s approach to contact did not soften.

This is a paradigmatic error.  And one that I made myself, and later on advice from a barrister, Gemma Bower.  That is, that by ‘backing off’ APs see reason and ‘soften’ or that judges see you more kindly as having taken the high ground – THEY DO NOT.  Your ‘backing off is not perceived as reasonableness, but as weakness.  Problems with contact increase, not decrease, and the alienation deepens.  Perhaps I can be forgiven for my naïveté but Gemma Bower can’t and nor can old Cliff.

Judge Bellamy goes on to accept the summary of his earlier findings by F’s lawyer:

 

“Miss Ball has gone through my earlier judgments with care and on the basis of that analysis she submits that the court has already reached a number of significant conclusions. She sets out seventeen in total. They may be summarised, briefly, as follows: that the mother is more culpable than the father for the breakdown in contact and the failure to restore it; that whereas the father has lacked insight the mother has been well aware of the likely consequences of her actions and has behaved wilfully; that the mother’s behaviour has created antipathy and coloured S’s thinking about his father; that although in recent months there have been some signs that the mother may have been attempting to change course, the reality is, as she herself admitted in evidence, that she has now lost control of S; that the consequence of all of this has been that S has become alienated from his father; that S has been emotionally affected by being at the centre of parental conflict and is at risk of future harm if he is unable to enjoy a meaningful relationship with his paternal family; that the court is pessimistic about the mother’s ability to change.

 

The judge then goes on to accept summaries of his findings regarding the mother, adduced by the mother’s barrister:

“She says that

(a) What is equally important is the findings that the Court has not made as these must be considered when balancing all factors of the welfare checklist by way of example. (sic)

(b) The court has not found that the mother is responsible (or solely responsible) for the alienation of S from his father.

(c) The court has not found that S suffers any disadvantage in any other areas of his life.

(d) The court has not found any exposure of S to distorted belief systems or false allegations from the mother.

(e) The court did not make its order for sibling contact based on any assertion by the mother, or assumption by the court, that this would lead on to contact between S and his father.”

 

The mother’s lawyer goes on and

 

“points to the likely distress that would be caused by moving S from the care of the parent who has been his primary carer for the whole of his life and with whom he has a strong bond. Such a move would mean not only change of carer but also change of home, change of school, loss of friends and loss of the social and sporting life he enjoys at present. He will have to build a new life living with a father whom the court has found lacks insight and empathy. She submits that such destabilisation and disruption of S would come at a heavy emotional and psychological cost. It would involve the court taking a substantial (and, it is implied, unreasonable and inappropriate) risk.

 

But the judge goes on

 

“I am satisfied that S has suffered emotional harm. I am also satisfied that if he remains [my emphasis] alienated from his father he is at significant risk of suffering the kind of psychosocial harm (behavioural and emotional disturbance, academic under-achievement, relationship difficulties) described Dr W in his evidence and to which I referred earlier in this judgment.

 

The judge goes on to say that the court must balance all of the factors in favour of maintaining the status quo, with the factors in favour of a change of residence.  He says this:

 

  1. On the side of the scales representing the status quo, I place eight factors:

(1) The parents had separated before S was born. The mother has at all times been S’s primary carer. Even during those years when contact worked well, the longest period of time that S has spent in his father’s care is 15 days.

(2) The evidence demonstrates that S is doing well in every respect both at home and at school. I have found that the mother’s physical care of S is of the highest order. Although there is no evidence from S’s present school, to which he moved in September, the evidence from his Junior School was that he was doing very well both academically and in sport. Save for her relationship difficulties with the father, which have led her to be (to a greater or lesser extent from time to time) hostile to S enjoying a meaningful relationship with his father, the mother is otherwise bringing up a son who is flourishing.

(3) S continues to express a strongly held view that he wishes to remain in the care of his mother. That has been his position consistently since direct contact stopped in February 2006. No stone has been left unturned in trying to encourage a change in S’s position. Those efforts have been unsuccessful. He is now rising 12 years of age. His wishes and feelings are entitled to respect.

(4) Direct contact last occurred in February 2006. S has not been to his father’s home for almost four years. The closest he has come to having direct contact with his father, at the cross country race in March 2009 (see paragraphs 54 to 69 of my judgment of 15th June 2009), was a complete failure.

(5) Given that there has been no direct contact for almost four years and given, too, the distress which S has shown at some of the steps that have been taken to try to break the contact deadlock, it can reasonably be anticipated that a change of residence would be likely to cause S significant distress. Dr W’s opinion is that such distress is likely to be short-lived. However, I accept that it is likely that that distress would lead to management difficulties in effecting the transfer. Those difficulties could conceivably require the use of some degree of force in order to achieve the transfer. It is likely that the distress would continue in the early days following transfer.

(6) A move to live with the father would involve not only a change of primary carer but a significant reduction in the level of contact that S has with members of his maternal family and in all probability the loss of school friends. It would also involve the disruption of a change of school after just one term at his present school.

(7) The father works more than an hour’s journey away from his home. It is clear that on weekdays substantial responsibility for caring for S would be delegated to his stepmother and to his paternal grandparents.

(8) I have expressed concerns about the father’s lack of insight and empathy. Unless the father is able to make real changes in this area it is likely that this could undermine S’s placement with him.

  1. On the other side of the scales I place the following seven factors:

(1) I have found that S has already suffered emotional harm. I have accepted evidence from Dr W that S has become alienated from his father. I have also accepted Dr W’s evidence that there is a risk that the long-term consequences of alienation and estrangement from his father could be damaging to S’s welfare. That damage could include the kind of psychosocial harm (behavioural and emotional disturbance, academic under-achievement, relationship difficulties) described by Dr W in his evidence and to which I referred earlier in this judgment.

(2) Although S has very clearly stated that he does not wish to see his father (and has called him ‘a monster’ and has said that he ‘hates’ him) I have accepted evidence from Dr W that as a result of the alienation not only are those views irrational they are also unreliable. In my judgment of 15th June 2009 I found that video footage clearly showed S to have been relaxed, happy and at times quite animated during his stay with his father in January 2006. I have noted some recent signs that S’s expressed wishes and feelings may not genuinely reflect his true wishes and feelings.

(3) I am satisfied that the father is being sincere in the assurances he gives concerning the maintenance of S’s relationship with his mother and maternal family in the event that S were to live with him. Given all that the father has faced over the last ten years, one might have expected him to be angry. In fact, as Dr W noted, he is, quite simply, very sad. I have detected no sense of malice or ill-will towards the mother. The father has pursued these proceedings as determinedly as he has because he cares deeply about the welfare of his son. In my judgment the father would be in a better position to maintain the mother’s relationship with S than vice versa. I am confident that the father would prioritise the need for S to continue to enjoy a close and loving relationship with his mother.

(4) I am satisfied that the father, together with his wife and parents, would be able to meet S’s physical and educational needs to the same standard as that provided hitherto by the mother.

(5) Although in my judgment of 15th June 2009 I accepted that the mother had made some progress since the previous hearing in November 2007, I was not wholly convinced that her intent had been to make contact work. I expressed the opinion that it was equally possible that her efforts had been intended to persuade the court that she had tried to make contact work. I said that my concerns about the mother had ‘lessened only slightly since December 2007’. That remains my position.

(6) Previous orders of the court have not been effective in re-establishing direct contact. I do not share Mrs K’s optimism that indirect contact may in due course lead to a resumption of direct contact. If the status quo remains and the court proceedings come to an end I consider the prospects for re-establishing any form of contact between S and his father to be remote. In my judgment the overwhelming probability is that S will have no further contact with his paternal family unless, in later adult life, he himself seeks it out.

(7) Following on from that last point, the mother has accepted that she has lost control of S. I am confident that even if the mother were motivated to provide real encouragement to S to see his father it is unlikely at this late stage that that encouragement would bear fruit. In any event, I am not confident that the mother is genuinely motivated to provide that encouragement.

 

The learned judge concludes:

 

“The decision for the court is a profoundly anxious and, as I now accept, finely balanced decision. Some may regard a decision to move S as being too bold and inappropriately risky. Mrs K has referred to it as ‘an experiment’. Others may regard a decision not to move him as failing to grasp a nettle that has cried out to be grasped for far too long. I have taken time over Christmas and New Year to reflect on my decision. Having reflected I have come to the conclusion that, traumatic though it may be in the short term, it is in the best interests of S’s long-term welfare for him now to live with his father. I so order.”

 

 

Case 2 – the Appeal

This decision was appealed by the mother. 

What follows is the result of that appeal, heard in the Court of Appeal by LORD JUSTICE THORPE, LADY JUSTICE SMITH and MRS JUSTICE BARON[2]

The appeal was heard in March 2010.  Litigation had, by this point, been going on for nearly ELEVEN YEARS.   Throughout this case, the child is referred to as ‘A’ notwithstanding that he has been referred to as S before.  But it’s the same child and the same case.  In this ‘follow-up’ Dr Weir is referred to by name – so it was him after all.

Old Cliff had tried to effect the transfer of residence, but mum was having none of it and the local authority had become involved.  Judge Bellamy had had to resort to tipstaffs and had indicated that the change was happening whether mum liked it or not.  Mum, on the other hand, had other ideas…

The local authority were mooting an idea that the child go into local authority care for a few moths as a ‘stepping stone’ to transfer to dad’s house, but judge Bellamy thought it better to do a direct transfer and get on with it.  ‘A’ in the meantime had indicated that if forced to move to his fathers house, he would run away.

The court found a compromise – the ‘stepping stone’ via local authority care should be only for 21 days, not three months…and maternal contact should be by supervised phone calls only.

How’s that gonna work out…?

 

 

Well, we can see exactly how this turned out here –

Case 3 – Resignation

Between:

WARWICKSHIRE COUNTY COUNCIL          Applicant

and       

TE           First Respondent

and       

SH           Second Respondent

and       

S (by his Children’s Guardian, Ms J)          Third Respondent[3]

“On 21 July 2010 a wholly deserving father left my court in tears having been driven to abandon his battle to implement an order which I had made on 4th January 2010 that his son, S, now aged 12, should move to live with him.[1] The order of 21 July, made by consent, brings to an end litigation relating to S which has been before the court almost continuously since June 1999.”

At some point Karen Woodall became involved.  She thought the situation could be remedied with therapy.  Dr Weir thought not, saying

 

‘I do not share Ms Woodall’s optimism that further therapeutic intervention will succeed…This is a serious and entrenched case of alienation…and it has been and remains my opinion that therapy is unlikely to succeed in overcoming S’s resistance to any form of relationship with his father’s family.

Weir goes on

 

“The difficulty I have is that although the local authority is hoping reason will prevail and S will come round to accepting the inevitable, I think it is unlikely. The delay allows a period when attitudes can become entrenched, behaving badly, and further risk of harm occurring…at the end after the work and negotiation there will still be the same situation where we have to force him to live with his father. Even if he is willing to go into foster care, which is a good thing because it avoids a scene at the time, the bad thing is that we are not dealing immediately with what is ultimately necessary, that is, to make him to go live with his father.’

As I have already noted, the strategy S adopted during contact sessions – putting his head in his hands, putting his fingers in his ears and flatly refusing to engage – was carried through with great determination. His attitude became even more entrenched.

  1. In his report of 25 May 2010, written in response to the by then failed attempts to persuade S to engage with his father, Dr Weir said

‘There is little that I can add to my previously expressed views. The “stepping stones” method predictably failed and may have made matters worse…The continual delays and failed attempts at reintroducing contact make it more likely that S might successfully resist contact and/or transfer in the future, as he is now even more experienced at resisting the advice and encouragement of even more people in authority.’”

The court continued:

Some of the steps recommended by Dr Weir are likely to appear highly counter-intuitive to a child care practitioner who is not experienced in dealing with alienated children. At the professionals’ meeting on 23 February Dr Weir was asked how the reintroduction of contact should progress. He gave this advice:

Dr Weir: The [first] visit needs to be quite long to help the child get over it. If it ends quickly because of unpleasantness then it is setting up the next visit to fail. I am looking at the first visit being very long and to be kept going until S is prepared to answer his father and…look him in the eye ending in a change of attitude. It may take hours.

Q: What if he can’t do that?

Dr Weir: It needs to go on as long as possible.

Q: What if S says he won’t eat, drink, do school work etc? How long do you leave it?

Dr Weir: Indications from other cases are that threats are not persisted with. They may end in hours or 2/3 days and then things change…and it is OK.

Some child care professionals are likely to be deeply unhappy with such an approach and, out of concern about the risks to a very distressed child, unwilling to follow such an approach.

In other words, you have to push really hard.

In the meantime:

Some while after the second appeal Miss Ball QC, leading counsel for the father, advised the court that the father’s wife was pregnant with their third child. At the pre-hearing review on 7 July I was told that the father’s wife had miscarried. Following an advocates’ meeting on 13 July I was informed by Miss Ball that the father no longer intended to seek the implementation of the residence order made on 4 January. In the circumstances, I have no doubt that that will have been a very painful decision for him to take. However, after all that has happened in the six months since my order of 4 January, I have no doubt that the decision was the right decision for S. I warmly commend the father for it.

On the concept of alienation,

“In his first report Dr Weir gave this description of the concept of alienation:

‘There are children who show an extraordinary degree of animosity towards a parent with whom they once had a loving relationship. Most of these children will show some or all of [a cluster of psychological responses]. Within an individual child (and between children in the same family) the presence of the features can vary rapidly over time and place, but in their full manifestation are so surprising and unique as to be unforgettable. The proposed term ‘Alienation’ applies only to the cluster of psychological responses in the child with no need to presume a deliberate campaign of denigration by one parent. [my emphasis] There is now research data supporting a multifactorial aetiology for ‘Alienation’ following parental separation, involving contributions from both parents and vulnerabilities within the child.’”

And

“In the light of the considerable body of evidence I have heard and read in this case over the last three years, the research literature that has been produced and my experience of dealing with other high conflict cases involving different experts, I am satisfied that Dr Weir’s evidence as to the concept of alienation as a feature of some high conflict parental disputes may today be regarded as being mainstream.

Therapy was not to be the answer in this case, as Dr Weir had opined, and Karen Woodall

 

“described the progress as ‘tiny’

 

So dad gave up.  He had no choice.   There was a ‘postscript

“Postscript

  1. The final order was made on 21 July. S was informed later that evening. At my request, the guardian sent me an e-mail on 22 July to let me know how this meeting had gone. I set it out in full:

‘Dear Judge

To inform you that myself and Mrs K met S last night and we had a meeting with father and [his wife]. The father read out his letter to S and we asked S to listen which he did. It was an extremely difficult meeting for father but he managed to read the letter and S did allow his father to touch him on his arm. S did not look at his father and had his head down for the whole time.

I spoke to S after his father had left and he was feeling numb but “good”. He said to say thank you and said that this was not the end and he would think about seeing his father after his GCSE’s.

I am sure he listened to his father and it was S who volunteered that this was not the end and he would see his father on his terms when he was ready.

Overall S managed the situation very well, but sadly we could hear his father sobbing as he left.

Regards…’”

 

[1] http://www.bailii.org/ew/cases/EWHC/Fam/2010/192.html

[2] IN THE MATTER OF S (a Child) [2010] EWCA Civ 325 – http://www.bailii.org/ew/cases/EWCA/Civ/2010/325.html

[3] [2010] EWHC B19 (Fam) CASE No. NU10C00043 – http://www.bailii.org/ew/cases/EWHC/Fam/2010/B19.html

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Lies, Damned Lies and Logico-Semantic Trickery

Judges and Social Workers are routinely complicit in child abuse.

Let us consider all of the kinds of difficult private law cases involving children-related issues in the family courts.   The courts have used the following phrases.  These phrases have been used haphazardly and non-uniformly.  I would like to reduce all this equivocation into a codified structure, so that we can see, with clarity, exactly what the problem is. 

TYPES OF CASE

Parental Alienation cases;

Intractable Contact Disputes;

Cases involving ‘implacable hostility’;

Cases involving the ‘Parental Manipulation’ of children;

‘High-Conflict’ cases.

FEATURES OF THESE CASES

i. False allegations against the non-resident parent (‘NRP’)

ii. The resident parent (‘RP’) deliberately frustrating contact;

iii. The RP ignoring/defying court orders and/or suborning children into doing so;

iv. The RP encouraging children to fear or despise NRP;

v. The RP adopting a false belief system about the non-resident parent and instilling (by act or omission) that belief system in the children. Is RP ‘mad or bad’? That is, does the resident parent (‘RP’) genuinely believe the other parent to be ‘dangerous’ when he is not (in which case RP is ‘mad’ – deluded’), or does the RP know damned well that the NRP is a good parent and just makes up these allegations to keep NRP away (in which case RP is ‘bad’ – that is, probably narcissistic). Finally, and crucially, does it matter whether RP is mad or bad? Either way, the children need to be protected from the RP.

vi. ‘Over-sharing’ of information about the court case by the RP with the children;

vii. Children rejecting an NRP with whom they used to have a good relationship;

viii. RP rewarding child when child disparages NRP, and chastising child if child praises NRP;

ix. Child gives weak, frivolous, and absurd rationalisations for their criticism of the targeted parent: When they are asked to report specific incidences or explicit examples which support their accusations, they are unable to document credible, significant, or factual examples;

x. Child exhibits a lack of ambivalence: very likely, PA children will report a long list of deficits about their NRP while minimising or refuting any positive attribute or redeeming quality of that parent. Conversely, the child will have nothing negative to say about the RP;

xi. The independent thinker phenomenon: the child claims to be independent in making decisions and judgments about the alienated parent, rejecting accusations of being a weak and passive person;

xii. Absence of guilt over cruelty to or exploitation of the alienated parent: Child victims of the alienating parent’s campaign of denigration do not feel guilt or empathy towards the victim parent and do not feel a decrease in their self-esteem, which is part of the guilt;

xiii. Spread of the child’s animosity to the extended family of the alienated parent: PA children also inexplicably reject those relatives they had previously had a loving relationship with and turn hostile to them. So, it is not just the NRP who is rejected, but everything and everybody that has any kind of positive connection with the NRP;

Let us assert that a case that includes all of these features, from i – xiii, is called a ‘Parental Alienation’ case.   I do this in an attempt to show that all of the supposed distinctions and gradations of these kinds of cases are largely illusory.

This claim can be demonstrated with the use of a simple scenario:

Let’s suppose that the two parents (F and M) split and that there is one child (for simplicity’s sake).  Let us suppose that F leaves the matrimonial home, so the child stays with M (by far in a way the most common scenario).  M hates F – really despises him.  It does not matter why.

How likely is it that M will cooperate with contact arrangements?  How likely is it that she will encourage the children to have a positive view of their father?   How likely is it that she will obey court orders?   Is it possible/likely that she will make up false allegations about F, given that she will surely be trying to justify her frustrating of contact orders?   How likely is it that she will encourage the children to comply with contact orders that she will not comply with, particularly given her negative view of the father?   How likely is it that she will protect the children from the details of the litigation?  How likely is it that she will reward the child if the child reports good contact with the NRP?  And how likely that she will punish?  How likely is it that a child will reject a parent with whom they have always had a good relationship, unless they are being manipulated by the RP?   How often, in a healthy family, do kids see one parent as all good and the other as all bad?   How emotionally healthy is a child that cruelly rejects a parent for no good reason?   Why is this child completely submissive to the RP on all day-to-day matters, yet regards himself as completely uninfluenced when it comes to his rejection of the NRP?  How likely is it that some of these features are present without (most of) the others being present?

These questions are surely rhetorical.

This is a Parental Alienation case.  And, regardless of what you call it, this is psychological child abuse.   And once the judge accepts that, he has to do something, doesn’t he?  What kind of a judge would he be if he didn’t?  What kind of a human being would he be?   How should one characterise a person that enables, and so implicitly encourages, this kind of abuse and refuses to transfer residence to the parent that is loving, caring and emotionally available?   What kind of judge gives an abuser repeated opportunities to perpetuate the abuse and deepen the alienation? This judge is an individual who has ‘aided, abetted, counselled or procured’ the main ‘offence’.  And that makes this judge as guilty as the ‘prime suspect’ – the alienator, the abuser.  This ‘abetter’ is just as much an abuser as the narcissistic parent. 

The judge is a child abuser.

Exactly the same can be said of CAFCASS officers who routinely ignore evidence that does not fit with their goal – to close the case.  They are looking for the path of least resistance – and that is to be lazy, to examine superficially.  To accept uncritically the weak, frivolous reasons for the child’s rejection of the NRP, to accept on face value a brainwashed child’s assertion that he does not want to see the NRP, is frightened of him, or despises him.  It’s easiest to simply marginalise the NRP.  Judges do this because they are cowards.  Social workers do it because they are lazy.  But in any event, the lazy CAFCASS officer is just as guilty of aiding, abetting, counselling or procuring the abuse and so –

The CAFCASS officer is a child abuser.

The judge abuses because he is too cowardly to transfer residence.  The social worker is an abuser because he cares more about closing the file than discovering the truth.

And that’s the fact, Jack.

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Finding Parental Alienation

There has been much discussion about what the courts should do when it has made a ‘finding’ of Parental Alienation.   Perhaps Parental Alienation must be thought of as a kind of child abuse.  I certainly think so, as does June Venters QC, when she asks[1]

“One issue that does concern me, and I know many others, is that when there has been a finding of parental alienation why it is not thereafter referred to and treated as a form of “child abuse” in the same way as other forms of child abuse together with a recognition of the significant harm which may have been caused to the child.”

It is ridiculous for family courts to regard Parental Alienation as a form of child abuse and then to leave the child with the abuser.   It would be like finding that a child had been sexually abused by a parent, and doing nothing – just leaving the child in harm’s way.

If you read June Venter’s piece in Family Law, you will see that she makes several references to what should happen in the event of a ‘finding’ of Parental Alienation.  Yes, in my view, the child’s residence should be transferred, or, at the very least, a coercive suspended Order should be made threatening to transfer residence if the Alienator fails to comply with contact Orders.  And yes, the case must then qualify as public law (S37 of the Act), allowing parties to be granted Legal Aid.  Indeed, in W (A Child) [2014] EWCA Civ 772

Ryder LJ says:

“There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case [my  emphasis]. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order.

I have emphasised that s37 criteria were engaged ‘on the facts of this case’.  This, I am sure is because floodgates must be kept firmly closed.  If s37 criteria could be met more easily, Legal Aid costs would go through the roof.  So I am sure that Ryder LJ’s comment here is motivated more by political than legal considerations.

OK, so we can have some debate about what happens when a finding of Parental Alienation is made.

But this, whilst interesting and important, is not the real issue. 

The real issue is the difficulty in procuring such a finding.

There is real, tangible judicial reticence in finding that PA exists both in individual cases or, indeed, at all.  In my own case, for example, the judge agreed that the mother was obstructing contact, was “sticking two fingers up to the court”, that none of the allegations made against me were true and that I was a ‘good enough’ father who had done nothing wrong.  But the judge refused to find that Parental Alienation was proven. 

And, it seems, this is important. 

Because if PA is found, the judge has to actually do something. 

If, on the other hand, the judge accepts some, many or all aspects of PA are present, but does not declare a clear diagnosis of PA, he can hide.  He can be cowardly.  He can say ‘Well, there are obviously problems here, but there are not sufficient, even when taken together, to amount to PA, so I don’t have do anything.’

But judges need to absorb the fact that a decision to do nothing is still a decision.  And that decision can have long-term disastrous consequences for the child.

It seems that Judges (and CAFCASS of course) do not know what PA is

My question (and I see this as rhetorical) is:  who cares?!   If a parent is frustrating contact, disobeying/ignoring court orders, sharing inappropriately with the child all the details of the court case, failing to support the child in its relationship with the other parent (as was found in  my case) why does it matter if we call this ‘Parental Alienation’.  As Childress says “Let’s just call it Bob”.  HH Judge Wildblood has asked the same question – why does it matter what we call it?

What CAFCASS and most lower-court judges seem to want specifically is evidence that the resident parent has bad-mouthed the ‘Target Parent’ to the child.  Well, firstly, that is not required for a diagnosis of PA, and secondly we must remember the words of Dr Amy Baker:

“Children do not typically reject a parent, even a relatively bad one, unless they have been manipulated to do so,” [2]

Consequently, if a child rejects a parent, this should be a BIG RED FLAG for judges and social workers.  They should be saying to themselves ‘hang on a minute, kids do not reject parents…what’s going on here?’  And the answer to that question is ‘Parental Alienation’.

Yes, it’s possible that a child might have a good reason to reject a parent, but even when the child does have a good reason, the child often still does not reject the parent – indeed, this is one of the problems faced by social workers in sexual/physical abuse cases – the child still wants the love of the abusing parent.

Finally, how is any targeted parent going to be able to prove this bad-mouthing?  There is unlikely to be any video or audio recording, and witnesses are going to be hard to come by.  Surely it is enough to infer that this must (on the balance of probabilities) have happened, because “Children do not typically reject a parent, even a relatively bad one, unless they have been manipulated to do so,”.

Look at the case of re L [2019] EWHC 867 (Fam)[3] where the president of the Family Division agreed with the trial judge’s finding that, on the facts, PA or ‘intractable hostility’ had not been proven.  This was a useful decision insofar as the child’s residence was transferred to the Target Parent (in this case the father).  But, no finding of PA.  But these other findings were made:

“In October 2017 L gave an ABE interview to the local police in which he made assertions which, if true, indicated a lack of sufficient sexual boundaries in the father’s home.

And

“In a judgment given on 18 May 2018, HHJ Tolson dismissed the allegations upon which the mother relied and found “to a very high standard of proof that there has been no sexual or physical abuse by L’s father of his son.”

And

“As a result of what he had observed during that process the judge considered that the father’s central submission, namely that his relationship with his son was being undermined by the mother and grandmother, may be made out.

And

“The closing paragraph of the Guardian’s report however included the following statement:

“…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.”

And

“The judge observed that the CAFCASS officer went further and suggested that L “could be developing a view that his mother is all good and his father is all bad”.

And

“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.”

And there are many other such comments, too numerous to mention here. 

BUT – still no Parental Alienation!

Questions arising:

If these findings do not give rise to a finding of PA, what will?!

Whether or not they do, does it matter?   At the end of the proverbial day the father got the right result and did not have to leave court as yet another ‘tearful and wholly-deserving father’. 

But it does matter.  Cases of Parental Alienation must be identified as such, and PA must be recognised as psychological child abuse.  Perhaps the only reason it isn’t is political.

Paul Massey 24-1-20


[1] https://www.familylawweek.co.uk/site.aspx?i=ed200967

[2] https://www.theguardian.com/society/2016/jul/14/programme-aims-to-help-people-affected-by-parental-alienation

[3] http://www.bailii.org/ew/cases/EWHC/Fam/2019/867.html

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Judicial Diversity

Lady Hale is shortly to retire as a judge.  Well, not just any old common-or-garden judge.  She is the head of the Supreme Court, the top judge.   She’s the daddy.  Well, the mummy.  So, she has achieved all of that and at the same time has been, and continues to be, a woman through the entire process.  Amazing.

So, is she to be an icon for feminism and women’s rights?  Don’t know, don’t care.  The reason is this – gender is the wrong prism, the wrong ‘frame’ to use. 

Behold this image –

These are the judges of the Supreme Court (formerly the House of Lords and, no doubt, Ladies).  Yes, there are not many women.  Yes, there are no black or brown faces.  But these are not the attributes I am interested in.  In my estimation, these are not the attributes we should be primarily concerned with.  Why?  Because the biggest problem in the area of judicial diversity is class, not gender or race.

One of the propositions put forward in the ‘Political Compass’ survey is “Ultimately, we are more divided by class than by gender or race”, and the reader is asked to indicate whether they agree or disagree, and how strongly.  I always agree strongly with that claim.  Perhaps class is the only thing I have to moan about.  I am a white, middle-aged, lower-middle class heterosexual man.  I might have other hobby-horses were I black, gay or female.  So, good – that’s out of the way.  My little whinge is about class.  Fortunately, I am very balanced – I have a chip on both shoulders.

Class

All of the judiciary is posh.  Always has been.  From magistrates to Supreme Court judges.  This is the factor that makes judges ‘out of touch’.  And that is the BIG problem.

This problem manifests itself in many ways. 

Magistrates

Magistrates are the only judges that are not legally qualified.  But it is fair to call them judges – after all, they judge.  That’s their job.  How did they get this job?  Years and years of rigorous training courses and exams?  Years of graft and proving themselves to be fair, equitable, reasonable and relevant? 

No.  They got the job by asking for it.  That’s it.  There are no exams.  There are no tests of any kind, except a couple of checks to try to ensure that they are not serial killers and so on.  The main qualifying criterion for being a magistrate is to be loaded.  Of course, it’s not put quite that way.  But magistrate’s justice is justice on the cheap, because magistrates are not paid.  So, to be a magistrate, you need dosh.  You need to be, to use the euphemism, ‘financially independent’, because the job pays nothing. 

So – who wants to be a magistrate?  Rich busy-body narcissists that like throwing their weight around and judging others.   Many are retired Civil Servants – as if we need them to be any less ‘connected’ to the real world!

Now, it may be that there are legions of retired hairdressers and builders that are just queuing up to be magistrates.  I don’t know.  But they don’t seem to make it to the Bench, do they?  Is this because the ‘system’ discourages or prevents this ‘type’ from becoming magistrates, or is it simply that judging others is not something that working-class people fancy?  Perhaps they do not feel able. 

At all events, what we end up with is what we currently have, and have always had.  Posh, entitled, out-of-touch narcissists. 

Now we like to think that the magistrates clerk provides some balance.  Of course, this is not true.  Because the clerk is a lawyer.  And lawyers tend to be posh too.  The magistrates do what they like.  The clerk is there only to stop (or try to stop) the magistrates doing something that the law simply does not empower them to do.  Just as well.  But it doesn’t always work like that. 

I was ‘up before the beak’ a couple of years ago on a matter relating to business rates.  I had been prosecuted for non-payment – that is, I, as an individual, was prosecuted because my company had not paid business rates.  The reasons are unimportant.  The point is that the individual had been prosecuted for a corporate debt.  The law is clear that this is not permissible, because of something called the ‘corporate veil’.  This is a concept established by case law – the case is over 100 years old and so has been good law for more than a century.  The case of Salomon (1897!) established that a company is a completely separate legal entity to an individual.  An individual (whether a director or shareholder of the company or not) cannot be sued or prosecuted for liabilities of a company, and visa-versa.  Of course, the clerk knew all about this, but her protestations were disregarded by the Mags.  As far as they were concerned, my argument was all ‘smoke and mirrors’ and judgment against me personally was made accordingly.

And anyone who has been before the magistrates in a family matter will know that they are useless.  Indeed, most family lawyers (if you can find an honest one) will admit that, if you have a child contact/residence dispute, you are better off with a District Judge (that is, a legally-qualified Judge in the County Court).  Not that this is by any means a guarantee of success of course.  It’s just that, with a Magistrate, you have a 5% chance of justice.  With a qualified judge, that might rise to 10%.  Either way, you’re screwed.  It’s just that there is a slightly better chance of some semblance of justice if your case is heard by a proper judge.

So, how do you fancy being judged by a right-wing reactionary narcissist? 

The alternative is the ‘Whig’ magistrate – that is, that, whilst still offensively loaded/posh as usual, the Magistrate has a nice line in condescension.   This kind of magistrate is kind to criminals.  They are kind because they are ignorant – again.  It’s the flip side of the same ‘out-of-touch’ coin.  Here, the kindly old Mag will let crims off, and give them loads of underserved chances to get their lives together.  This, of course, is because the poor old crim has had a hard life, and the kindly old Mag really can’t imagine what that kind of life must be like.  But he/she assumes that this hard life provides the crim with some kind of excuse for their behaviour.   If the crim was judged by his class-peers, (a builder/hairdresser or whatever), the judge would now be saying something more like “well, I had a bloody hard life too.  But I didn’t turn to crime.  I made something of myself.  You could have too.  But you didn’t.  You took the easy route.” 

Now, of course, there are some cases, perhaps many cases, perhaps even most cases, where the offender will not have had much choice.  Poverty is an extremely difficult trap to escape from.  But the Mags seem to be far too ready to accept this kind of argument.

So, you might get a reactionary narcissist nutcase, or a condescending ineffectual liberal.  What you can be sure of, as with all judges, is IGNORANCE.  Ignorance of normal people, their problems, travails, aspirations and standards. 

All judges are out-of-touch.

County Court Judges

For most purposes, we will be dealing with District Judges.  If they get it wrong, we might appeal (for all the good it will do) to a Circuit Judge.  These are the two types of judge one finds in the County Court.  The County Court deals with ‘Civil’ cases – that is, disputes between individuals – although most often, in Family Law, the disputes are not particularly civil!

In order to be a judge in the county court, you have to be a lawyer.  That is, a Solicitor, Legal Executive or Barrister.  You need a minimum of five years’ experience, and usually two of those to be served as a Deputy District Judge.  Broadly, a Solicitor and Barrister take very similar examinations.  I have heard it said, more than once – by barristers too – that the solicitor’s exams are actually harder.  Well, in essence, the law studied by Solicitors, Barristers and Legal Executives is exactly the same, at exactly the same level.  Legal Execs have to pass a smaller number of exams.  They tend to specialise, so, if the Legal Exec is a family lawyer, he will probably choose to study family law, and maybe ‘tort’ (civil wrongs like negligence, defamation and so on) and maybe criminal law.  A solicitor has to study these, plus a ton of law he will probably never use.  In practice, the jobs of solicitor and Legal Executives look very similar – there’s no real difference in practice and a good, specialised Legal Exec can often be a better bet than a more widely qualified, but less specialised Solicitor.  A barrister tends to concentrate a bit more on advocacy as he/she will spend a greater amount of their time in court.

Historically, Legal Execs were called ‘Managing Clerks’.  Over the years, the Institute of Legal Executives became ‘Chartered’ and wider privileges and rights of audience were acquired.  Legal Execs can now be partners in solicitors’ firms.  Barristers were seen as the ‘senior’ branch of the profession.  In theory that has been done away with, and solicitors and barristers are now on level terms – it’s just that nobody has told the barristers..

From a class perspective, the Legal Exec is probably lower-middle-class, the solicitor is ‘middle-middle’ (like maybe accountants and GPs) and the barrister upper-middle (comparable to surgeons, say).  Obviously, these are generalisations and there will be the odd exception.

Is it the case that, the higher the class of judge, the more likely he or she is to be out-of-touch?  Well, that sounds right, doesn’t it?

Superiority and Inferiority

These are words one does not hear much these days. 

Over the last few years, I have read a bit of Jane Austin, H.L. Mencken, and Ralph Waldo Emerson, and quite a lot of Nietzsche.  What I notice about these writers is that there are constant references to the ‘superior man’ or a ‘woman of the first order’ and so on.  This is not a very popular way to express oneself any more.  When I was a kid, people would refer to one’s ‘betters’.  This, again, is not very fashionable now.  Folk would talk about ‘breeding’.

What, I wonder, makes a man ‘superior’ to another man?  Why would we think of this woman as being ‘of the first order’ and the next woman as ‘of the third order’?   Strength?  Education?  Money?  Manners?  A mix of these?

Well, let’s leave that aside for the moment.  All I am concerned with really is that there was a time when we thought of people in this way – superior or inferior.  Many people these days do not think of others in this way.  Many people.  But not all.

Is it true that we are all the same?  Do we all have equal value, merely by being human beings?  Or, is it rather the case, that we should all be treated equally, regardless of our attributes, both positive and negative?  For example, person ‘A’ might be more intelligent than person B, but person B is more handsome.  Or one might be stronger, and the other kinder.  One might be rude but kind, the other well-mannered but narcissistic.  And so on.  We all have strengths and weaknesses, and, overall, it all balances out such that, more-or-less, we have equal value.  Wouldn’t that be lovely?

Or is it the case that some people are simply superior?  Let us compare two men, A and B.  A is intelligent, handsome, brave, educated, powerful, kind and rich.  B is poor, stupid, cowardly, ignorant, foolish, selfish, ugly and vulgar.  Why are we so reluctant to claim that A is ‘superior’ to B?

Which of these two men would you prefer as a judge?

Well, there may be differences of opinion here.  But surely, we would all agree that, regardless of an individual’s attributes, all should be treated equally.   This is what a philosopher would call a ‘normative’ claim – easily spotted by use of the word ‘should’.  Next to this, we might make a ‘descriptive’ claim that, regardless of how we should behave, the fact is that we see people differently, and treat them differently.  That is, regardless of how we should behave it isn’t how we do behave.

Imagine that you were a barman and two groups walked in to your pub.  The first group arrive in torn jeans and t-shirts, shaven heads and have lots of Swastika tattoos.  The second group is wearing Barbour Jackets, and talk dead posh.  Are you really going to treat these groups in the same way?

Or…You’re walking down the street on a dark night.  Person A approaches you.  She is a small, pretty young woman.  Or you might get person B – this is a large 25-year-old man carrying a machete and sporting a good many tattoos.  In which of these situations do you cross the street and get out of the way.  It may be that the machete-wielding man is a lovely guy, just out at night looking for people to help – perhaps he’s on his way to the local soup kitchen to contribute some voluntary work?  He needs the machete for, well, dunno – chopping vegetables?  The pretty young girl, on the other hand is actually a ruthless assassin, ready to rob you and kill you.  Hmm….

Which is right?  The historical paradigm with its notions of superiority and inferiority, or the latter-day paradigm of equality for its own sake?

My experience is that the answer to this question depends on whether one sees oneself as superior or inferior.  Those that are superior, for whatever reason, or combination of reasons, think of themselves as superior, and treat others accordingly.  They feel that they have achieved their positions of power, money and influence through hard work, intelligence, wisdom, breeding and a better education.  In short, they deserve their superior position in life, and other people, because of a paucity of those same attributes, deserve their inferior position.

A ‘lower-order’ individual sees things differently.  This guy is disadvantaged because he has been unlucky.  He was just born into a bad situation from which it is, in all practical senses, impossible to escape.  Equally he sees ‘higher-order’ individuals as ‘lucky’.  They were invariably born into privilege.  Most lawyers have at least one parent who is a lawyer. The same is true for doctors.  The class system is alive and well…

So.  Disadvantaged people think we are all where we are because of luck.  Advantaged, privileged folk think people get what they deserve.  Funny, that.

Judged by a Hairdresser

I think most would agree that judges are probably more intelligent and better-educated, on average, than the ordinary man on the street.  Likewise, the ‘man-on-the-street’ has more common sense.  And, factors like education and intelligence do not speak to the central and most important attribute for a judge – an instinct for fairness.  Obviously, it is perfectly possible (we see it every day in our courts) for a judge to be educated and intelligent, but biased, closeted, and out-of-touch.

It is probable that a hairdresser or a builder will have more common sense than a judge.  They will certainly be more ‘clued up’.  But being more ‘in touch’ or ‘clued up’ doesn’t necessarily mean ‘free from bias or prejudice’.  These attributes do not speak to that most important attribute for a judge – fairness, or, perhaps, justice.

In what kind of individual do we see a highly-developed sense of justice?

Children.

Children are our future.  Teach them well, and let them lead the way.  I feel a song coming on…

So, let’s replace the judges with children.  Or hairdressers.  Or builders. Perhaps the village elders. Or, in fact, anyone else.   The judges can just advise on the law, like the magistrates’ clerks.  But let’s leave fairness and common sense to 8-year-olds.  They can make the decisions.

Conclusion

Lady Hale done good.  No doubt.  She made it in a man’s world (albeit that her first job as a Supreme Court Judge was to supervise the décor and furnishings of the court..).  All power to her. 

There are many factors at play.  Obviously, she is educated and intelligent.  Maybe she is just.  She is a woman.  And she is privileged.  She says that she has had a privileged life but that she does not come from a privileged background…yeah, whatever.

Let us imagine her with all her current attributes, but without that of privilege.  Would she still have ‘made it’?  Could she still have made it? 

It’s time to get more diversity in the judiciary.  Yes, more women, definitely.   Female judges tend to be more robust.   Yes, more BAME representation. 

But, crucially, we need a judiciary that is more class-diverse.

Paul Massey 30-12-2019

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Abolish Wishes and Feelings Reports!

Intro

S1 of the Children Act 1989 indicates that the court must consider:

“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) (S1(3a)).

CAFCASS is asked to ascertain these wishes and feelings in most cases.  They invariably conclude that what the child wants is what the child says he wants.  An alienated child will always say that they do not want to see the ‘target parent’.  The judge follows what CAFCASS says.

So, here, we hear the child using the voice of the alienator.  We then hear those precise words again from CAFCASS and, finally, the judge.  I, for one, found that deeply disturbing.

Result:  Child stays with abuser.

Ascertainable vs Expressed Wishes

Firstly, we know from many cases (most notably re H 2014) that we are concerned here with the ascertainable wishes and feelings of the child, not the child’s expressed wishes. 

But how do we know if a child means what they are saying? 

You might argue that this is a question that can only properly be decided by an expert in child behaviour.   You may, however, take the view that any parent knows exactly when their child is not telling the truth.  Finally, and at all events, judges know.   Judges see these cases all the time, and are well aware, with or without an expert, if the child is expressing his true wishes.  Indeed, experts can usurp the role of the judge in this important way.

There is, however, one class of person that seems especially unable to ascertain a child’s true wishes.  The CAFCASS officer.  Unaccountably, CAFCASS officers seem almost always to accept what a child says as clear evidence of what the child wants.  They seem unable, or perhaps they are simply unqualified, to tell the difference.  Perhaps this could be changed with more/better training.  Only 2% of CAFCASS officers go to CAFCASS’s non-mandatory PA course.  Surely such a course could be run by an expert psychologist who could educate CAFCASS officers as to tell-tale signs of a child giving a rehearsed story or coerced evidence.

The Paramountcy Principle

The Act indicates that the child’s welfare shall be the court’s paramount consideration.  

So, why do we care what the child says in the first place?   Do we ask the opinion of our children about going to school or the dentist?  No.  Our job, as responsible parents – and the court’s job if it does it properly – is to make kids do stuff they don’t want to do.  Do we do this because we are ogres?  No.  We do it because it is in the child’s best interests to go to school, the dentist and so on.

The paramountcy principle ‘trumps’ all other considerations.   In Re L 2019, Lord McFarlane (the most senior family judge in England and Wales) said this:

“There is, therefore, an express duty placed upon a guardian in a case such as this to report on the child’s wishes. However, in my view, that duty must be tempered by the overarching requirement to afford paramount consideration to the child’s welfare.”

This is not new and has been said many times before, by many judges. But it is useful to have it re-stated, recently, by the most senior judge.

So, what is the point in asking the child, if we’re just going to do what is in his best interests regardless?   Doesn’t this render the entire idea of Wishes and Feelings reports redundant?   It is with that question in mind that I advise all alienated parents to resist Wishes and Feelings reports, and judicial interviews with the child which can be used to extract evidence from the child (although they are not supposed to). 

We must understand that when a child says it wants no contact, that has an impact on CAFCASS (usually conclusive) and the judge – again, usually conclusive given that most judges simply do what CAFCASS recommend. 

These interviews must be resisted.  Apart from anything else, Wishes and Feelings reports are a cowardly abnegation of the duty the State has to safeguard our children’s best interests.  We should simply not be asking children what they want.  The whole concept is wrong-headed and misconceived.  Apart from anything else, contact and residence disputes are primarily a matter for adults.  Children should be protected from as much of this as possible.

Conclusion

A child’s wishes and feelings are ‘trumped’ by his best interests.  Therefore, it is pointless to try to get them. 

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What to do with an abused child?

Well, that seems to depend on the kind of abuse.  If the abuse is physical or sexual, the child will be removed from a parent(s) and put into care.  That’s public law. 

In Parental Alienation cases, children are left to rot.  They are allowed to remain with their abuser.  That’s private law.

But the ‘threshold’ provisions for removal of the child are exactly the same in public and private law.  So, provided we accept that PA is psychological child abuse and that such abuse is as serious as other kinds, we ought, presumably to be able to remove the child once that threshold has been reached (‘triggered’).  Anything else would be illogical and inconsistent.

But, if we are to remove a child from the care of an abusive parent, where should the child live?  Presumably it is better for the child to live with the other parent, rather than go into care.  Indeed, the ‘threshold’ should be lower than when removing the child to the care of the State.  That seems to be Lord McFarlane’s rationale in re L 2019, where he said this:

“It is important to note that the welfare provisions in CA 1989, s 1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court’s authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care”

So, you will be pleased to hear that, as an alienated parent, you are better-placed than a foster home or care home, to care for your child.

I mean, when you say it out loud that seems kinda obvious…

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Re L 2019

In this case (re L [2019] EWHC 867 (Fam)) the Court transferred residence of the child from the alienating (?) mother to the father. The mother appealed. The appeal was dismissed. There is some discussion about whether and to what extent the mother’s behaviour could be described as PA, or implacable hostility. In my view this is a red herring really. The point is that the mother obstructed contact and turned the child against the father for no reason. It was found that the mother had harmed the child emotionally, something she did not challenge, saying that she had ‘got it wrong’ and that she needed help.

There are a couple of observations made by the judge that are particularly apposite. Firstly, paragraph 59:

It is important to note that the welfare provisions in CA 1989, s 1 are precisely the same provisions as those applying in public law children cases where a local authority may seek the court’s authorisation to remove a child from parental care either to place them with another relative or in alternative care arrangements. Where, in private law proceedings, the choice, as here, is between care by one parent and care by another parent against whom there are no significant findings, one might anticipate that the threshold triggering a change of residence would, if anything, be lower than that justifying the permanent removal of a child from a family into foster care “

This is a great point, isn’t it?

Next, at para 66:

Further, I accept the submission of Mr Veitch and Ms Musgrave which focusses on the word “ascertainable”. In the professional opinion of the Guardian, it was not possible to ascertain L’s wishes and feelings on the central issue without causing him emotional harm. It was also the view of the Guardian that L’s position was such that any expression of wishes would be unlikely to represent his true wishes and feelings, and, to that extent it would not be possible to ascertain the child’s genuine view.

Again, the point is made (as Mrs Justice Parker did in Re H 2014) that the child’s best interests are not necessarily what the child says he wants! That, indeed, is the point!

One thing I am sure of, is that a robust decision like this will lead to fewer contact applications and less court time, because invariably narcissistic parents obstruct contact, and parents that are pathologically normal do not. On balance, a child is much more likely to be able to see both parents if the TP has control of contact. Whenever the AP has control over contact, problems will continue and repeated applications will need to be made…

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The ‘Magic Bullet’

What is the ‘magic bullet’ required to stop PA in its tracks?

Well, there are several possible candidates, as follows:

Introduction

  • The judge could make an immediate transfer of residence order, conditional upon the alienator cooperating with contact.  This is a ‘coercive’ order.  The idea here is that the alienator is incentivised to cooperate with contact, because, if he/she does not, residence will be transferred immediately.  This is, and always has been, a possibility, but judges rarely make these orders.  Having said that, recent cases show that the courts are no longer seeing a transfer of residence as the ‘nuclear option’.  The logic seems to be, hopefully, that if a child is being abused then we must get him/her out of the way of the abuse immediately – and this is so, whether the abuse is physical, sexual, or psychological;
  • Judges could enforce contact orders.  On this site, we mention that the family courts enforce their own orders only 1.2% of the time.  In fact, that figure is from 2015.  The figure is now 0.9%.  So – 99.1% of the time alienators ignore court orders and nothing happens.  So, it is hardly any surprise that they keep alienating! 
  • We could adopt a mix of Australian and American ideas – that is, that 50-50 parenting is ordered straight away, and that neither parent may move more than 10 miles from wherever they are living now.  This is done as a preliminary step, to ‘draw a line in the sand’;
  • We could make PA a crime;
  • We could make PA a specific tort (a civil ‘wrong’, like negligence or defamation);
  • Judges could order alienators to pay costs or fines, or do community service;
  • Judges could order disobedient alienators to be arrested and detained in prison for a short, sharp shock

Now, to make it clear, when I talk about ‘PA’ here, I mean ‘hard’ alienation – that is where the alienator knows precisely what they are doing – deliberately setting out to break the bond between the child and the other parent.  Here, the alienator usually has a ‘cluster B’ type pathology, like narcissism or Borderline Personality Disorder.  It is important to distinguish between this kind of alienation and ‘soft’ or ‘hybrid’ alienation, where the alienator is, rather than malicious, simply careless with their language.  In soft alienation cases, the alienator can be educated and the child ‘flipped’.  In hard alienation cases it is impossible to ‘flip’ the child, certainly not without a transfer of residence order, because any efforts made with the child will immediately be undone and rendered useless by a cluster B alienator.

Given this, which of our options are preferable in hard alienation, high-conflict, intractable cases?

The Options

Coercive Orders

Well, I think this is a great idea.  The case law shows that hard alienators never play ball unless there is the sword of Damocles hanging over their heads.  The question is:  will the judge actually enforce the order and transfer residence as threatened?

Enforcing Contact Orders

This is my preferred solution.  It is outrageous that judges do not enforce their own orders.  That is why the judiciary has become a laughing stock.  I am confident that if judges were robust, PA would end.

50-50 parenting

Again, a good idea.  The point is that if the alienator spends less time with the child, he or she will have less opportunity to alienate.  Also, it’s about fairness.  Both parents have a right to see their child equally.  Likewise, the child has a right to proper, direct, plentiful and meaningful contact with both parents.  The problem is that the alienator still has to cooperate, and we know that they do not!  And just because they have less time to do it, won’t mean they don’t or can’t.  And, without robust enforcement of 50-50 arrangements, the arrangement might as well not exist;

Making PA a Crime

Yes, I would like to see this, of course.  PA is a criminal offence in some countries.  The problem here is the burden of proof.  In a criminal case, the state has to show that the alienator committed the offence ‘beyond reasonable doubt’ and that they intended to do so.  Again, without judicial robustness, this will be ‘hollow’.  It is extremely rare for judges to jail anyone in a family matter, so I am not convinced that they are more likely to do so, just because it’s identified as a specific criminal act.

Further, ss 66 and 76 of the Serious Crimes Act 2015 already makes emotional/psychological abuse a crime (against both you and your child).  I have done no research, but my guess is that there have been no prosecutions, and certainly no successful ones.  If anyone knows any different, please let me know.

Making PA a ‘tort’

Notice, tort, not ‘torte’.  Unless you feel that deserts are part of the solution 😊  But seriously, a tort is a civil ‘wrong’ – it’s the French word for ‘wrong’.  There are many torts in law, such as negligence, defamation, trespass and so on.  The ‘cure’ in all cases is for the wronged party to sue (take legal proceedings against) the wrongdoer (‘tortfeasor’).  If you win, you get cash.

The reason I like this idea is that, to win a civil case (a tort case), you only have to prove your case on the ‘balance of probabilities’ – that’s the civil burden, not the criminal burden of proof.  This is attractive because, unlike physical or sexual abuse, the evidence in PA cases is harder to come by.  There are no photos or x-rays.  We all know from our dealings with CAFCASS that social workers cannot understand the very concept of psychological abuse, and are not, in any event, trained to spot it.  They are not psychologists.  They are not diagnosticians.  Most social workers could not even be described as ‘the sharpest tool in the box’.  Now, we can accept the view of Dr Amy Baker (amongst others) that children do not reject parents without some help or coercion.  So, if we can persuade the judge of this, we can try pleading something like ‘res ipsa loquitur’ – that is ‘the thing speaks for itself’.  If a child has rejected a parent, this must raise a (rebuttable) presumption that the child is being – or at least might well be – alienated.

Next, there are some torts like ‘wrongful arrest’ and ‘false imprisonment’ that allow awards of exemplary and punitive damages.  I would like to get the tort of PA so classified.  The reason that makes a difference is that in a normal tort case, the wronged party gets only ‘compensatory’ damages.  The idea is to put that person in the same position they would have been in, had the tort not occurred, so far as money is able to do that.  So, in a personal injury case in the UK involving Big Pharma, an injured party might get, say, £100,000.  That same case, though, in America would attract exemplary and punitive damages, meant, respectively, to make an example of and to punish the wrongdoer.  Also, in America the awards are decided by juries, who tend to be much more generous than judges (although most very high awards will be appealed).  So, that same case would now be worth several £million, not thousands…

Imagine how many parents would alienate if they got sued successfully for £2 million!  Or even £10,000.  I think they would be a bit slower to take a hatchet to your relationship with your child…

Costs, fines and Community Service

As the law currently stands, alienators can be ordered to pay your costs of having to keep bouncing back to court to try to enforce orders.  They can be ordered to do community service or pay a fine.  But this is never done.  So, we come back again to robust judges.  If the judges would simply do their jobs, most of this would go away.  Also, these kinds of orders require only the civil standard of proof.  But even then, judges still do not do it.  Ever.

Imprisonment

Yes, a judge can put a disobedient parent in jail for disobeying a court order, or for lying on oath.  Both are ‘Contempts’ – a criminal offence.  But again, this never happens.

Conclusion

We could make PA a crime and/or a tort.  We could change the law.  But my strong instinct is that this is not about the law.  It’s about application of the law.  The law is fine as it is.  It’s not perfect and could be improved, but, in general terms, the Children Act 1989 is a good piece of legislation.  My preferred method, therefore is to get judges to simply do their jobs.  Enforce their own Orders, for God’s sake!  Punish false allegations!  Make costs orders and fine alienators!  This is all possible under the law as it currently stands.

But judges do not do this.  Judges are weak and cowardly.  Worse than that, they are, effectively completely unaccountable and make these outrageous decisions in private, so we don’t even know what’s going on.

Would you put up with a bad teacher, a bad doctor, or a useless plumber?  Why do we put up with it with judges?  There are many, many bad judges out there. 

Judges have lost the confidence and respect of the public.  It’s time to let them know.

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Another Tearful and Wholly-Deserving Father – The Case of ‘A’

Introduction

Today I am looking at yet another parental alienation case that’s gone badly wrong.  I will be analysing this and attempting to attribute blame – because, by God, some blame needs attributing.  If this case doesn’t get you angry and sad in equal measure…

The case is called ‘A’, and can be found here – all of these cases are anonymised.  This is ostensibly to protect the children – in most cases, though, it is to protect negligent professionals – and shortly you will see why I have this opinion.

The facts of the case do not really matter – they follow the standard ‘template’.  Mother bad-mouths and alienates father (sometimes of course it’s the other way ‘round).  She fails to encourage contact – in fact goes out of her way to frustrate contact.  Court orders are ignored.  In the end, following all the judicial delays (and who else can be to blame?) the kids are so badly alienated that they refuse to move to their dad’s home, as the judge had ordered two years earlier, and, well – it’s just too late, isn’t it?  Dad leaves the court as a yet another ‘tearful and wholly-deserving father’.

How many times have we seen this?  How many more times do we need to see it?

What is also clear is that all of the ‘standard’ failures apply – an incompetent judiciary, a useless ‘expert’ and woolly-headed social workers.

What is unusual, though, is that the judgement was published, that the judge apologised to the father, and that the judge recognised all of the failings of all of the parties.  How refreshing!  A judge that is open and honest, not mealy-mouthed and self-justifying.  I confess that I had seen Wildblood in his address to Families Need Fathers and thought – ‘yeah, right, let’s see, shall we?’ – it turns out that my cynicism may have been misplaced – it looks like His Honour Judge Stephen Wildblood may be ‘on-the-level’ after all.  Wildblood is one of the good guys.  There are others too, like Mrs Justice Parker, and judges Lochrane, Keehan and Gordon-Saker, and maybe one or two others.  But they are exceptions.

The Judges

Judge Wildblood became involved in the case two years earlier, in 2017, when he had ordered that the residence of the children be transferred to the father.   Prior to that he was not involved.  We do not know who was.  Maybe it was one hopeless judge, maybe several.  But what is clear is that these judges were, indeed, hopeless.  How do we know?  Well, this is what Wildblood says (I have edited these slightly for the sake of conciseness):

i)                    There was a failure to identify, at an early stage, the key issue in this case – the alienation of the children from their father by the mother. By the time that it was identified, the damage had been done.

ii)                  Overall there has been significant delay within these proceedings.

iii)                At the early stage of the private law proceedings the case was adjourned repeatedly for further short reviews. I have counted that there were eight orders for review hearings in the first two years of the private law proceedings alone…

iv)                At no point prior to my involvement in 2017 was there a full hearing on evidence to determine what was going on in this family…

v)                  The use of indirect contact in a case where there is parental alienation has obvious limitations, as this case demonstrates…

vi)                These proceedings have seen a vast number of professionals. I have counted 10 and I am sure that I have omitted some…

vii)              A particular difficulty in this case has been the absence, at times, of collaborative working by professionals. A particular example of that occurred when an attempt was made to move the children to the father’s care. The professionals involved with the court process and the schools had not had sufficient dialogue before that move was attempted and now have very strong and opposing opinions about what occurred and the merits of moving the children from the mother. Pre-planning for the move was inadequate, in my opinion. If professional people show their disagreements, as happened here on the day of transfer, it undermines the process and allows cherry-picking by family members of what they want to hear.

viii)            Early intervention is essential in a case such as this, in my opinion. It did not occur in this case. It took years (probably five) to identify the extent of the emotional and psychological issues of the mother. By that stage it was too late for there to be any effective psychotherapeutic or other intervention in relation to her, the children’s views having already become so entrenched.

ix)                There is an obvious difficulty about how to approach the expressed wishes and feelings of children who are living in an alienating environment such as this. If children who have been alienated are asked whether they wish to have a relationship with the non-resident parent there is a likelihood that the alienation they have experienced will lead them to say ‘no.’ Therefore, in this type of case, the approach to the wishes and feelings of children has had to be approached with considerable care and professionalism. To respond simply on the basis of what children say in this type of situation is manifestly superficial and naive. The children in this case have been expressing wishes that they should not see their father for many years now…

14.  I now need to say some words about the arrangements that were made for the children to move from the care of their mother to their father. About two years ago I heard three days of evidence and argument following which I gave a full written judgement. By my order I directed that the children should live with their father for just over seven weeks on the basis that they would not see their mother during that period. In my opinion, the handover went badly wrong; the children were extremely distressed and resistant to the attempts to place them with the father. The schools became very concerned about the level of distress that the children were showing, and the police became involved. Within a short period of time after the children started to live with their father, they ran away from their father several times, refused to eat and exhibited extreme distress. So extreme did matters become that, after further attempts at keeping the children with the father, they returned to their mother less than a month after the hearing. They have remained there since with the father having no more contact.

Well, let’s take it step-by-step.

(i) there was a failure to identify what was going on.  That is the fault of the previous judges.  Judges see this kind of case all day, every day.  They must be sick to death of them.  You do not need to be any kind of expert to identify when one party is obstructing contact.  How many times do judges need to hear of kids being ‘sick’ at contact time, not being at the mother’s house, or of court orders being ignored, before they ‘get it’.  And, although one does not need to be an expert, the fact is that judges are.  It’s not that they don’t get it, actually.  It’s that when they do, they take no meaningful action.

(ii/iii)        Secondly, there has been significant delay.  Well, the Children Act says, in terms, that delay is inimical to justice, and that’s just common sense, surely.  But judges delay and delay, ordering review after review, expert’s reports (completely unnecessary in my view – as Mrs Justice Parker has pointed out, experts can usurp the role of the judge, and I respectfully agree), and investigations that are wholly or substantially redundant.

(iv)            No evidentiary hearing had taken place (!)   In PA cases it is axiomatic that one of the parties is lying.  A so-called fact-finding hearing is needed in order to determine who the liar is.  Again, pretty obvious – except to some judges.

(v)             Indirect contact is a waste of time – as a previous case puts it “you can’t hug Skype”

(vi)            There were at least 10 professionals – the judge lost count!  The use of professionals is, in my view, a massive waste of time anyway, but ten?  Tell me, folks, do we think that it’s any surprise that all concerned get ‘expert’s report fatigue’?  And how much are we surprised that this approach is one of the main factors in causing delay.  The judge should be controlling all this. 

(vii)           There was an unhelpful lack of cooperation between experts.  Well, to start with, let’s have fewer of them!  That might help.

(viii)          It took FIVE YEARS for the court to identify what the mother was doing!  Wow!  It would take any thinking, caring individual with just one or two brain cells about five seconds flat.  Why can’t judges do this?

(ix)            ‘Wishes and feelings’ reports are a waste of time in a PA case because the child is simply repeating the indoctrination of the alienator.  Durr…

(x)             The move from mother’s house to father’s was hopelessly mismanaged.   The children were resistant.  What they needed was kindly, but firm, handling.  What they got, as I see it, was negligent management of the process – I am fairly confident that this was the fault of at least one of the experts, plus, I suspect teachers and social workers that do not understand or accept the dynamic.

All of the above matters are the fault of the judges.  Yes, social workers, teachers and experts can be pretty useless, but it is for the judge to oversee.  Contact must not be ‘encouraged’, wished for or hoped for.  It must be enforced, as must changes of residence.  I am reminded of the words of Dr Kirk Weir on this, where he says:

Finally we try to observe the child with each parent. It is this last stage of the assessment which is often not completed due to the high level of resistance expressed by the resident parent and/or child to having any form of contact with the non resident parent. Initially I was so concerned by the levels of distress emanating from children and the extreme parental conflict to which they were exposed, that I did not insist that a contact visit should take place. That was a mistake.

And these words from Mrs Justice Parker (in re H 2014) are apposite:

The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced [my emphasis] contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father.

(Mrs Justice Parkers words here are also very telling on the issue of ‘wishes and feelings’ and on Social Workers generally).

The point is simply that judges must be robust.  None of the pre-Wildblood judges in this case could be so described.

A Word on Anonymisation

Having described HH Judge Wildblood as ‘one of the good guys’, I am reluctant to make this point, but it fascinates me that some identities are hidden, whilst others are not.  For example, in all other anonymised cases, the lawyers are named.  In all other anonymised cases the judges are named.   Not here – perhaps the learned judge felt he should protect his colleagues and brethren – not surprising, given the shameful (but pretty typical) way this case was handled.

And yet, the experts are named.  The Guardian is named.  Perhaps HHJ Wildblood was less bothered about protecting them.  Or perhaps it would not have been possible to identify the children from the experts’ names, but, as soon as you mention a judge’s name or that of a lawyer, well, the gaff’s up, right?  That doesn’t seem likely.

Now, to be fair to Wildblood, he has been immensely brave in publicising this judgement in the first place, and making the open criticisms of the system that he has made.  Judges generally are cowards – that is UKAP’s main theme.  Not Stevie W.  It takes tremendous moral courage to stick one’s head above the parapet in this way.  It’s probably a bit ungrateful, and expecting a bit much to ask him to name and shame as well!

The Experts

We do not know the identities of most of the experts.  What we do know is that Dr Mark Berelowitz is named, and Karen Woodall.   Also, the Guardian is described by the judge as an ‘expert’, a claim to which I would not, for one, subscribe.  Another psychiatrist, Dr Blagg is mentioned, but not much is said about him. 

But one of these experts stands out – Karen Woodall, because, interestingly, she was represented by a lawyer…Make what you will of that.  Well, let me offer some suggestions…

Ms Woodall works as a reunification counsellor.  She is not a psychiatrist or psychologist.  She is not a doctor.  I believe (though I have no data) that Ms Woodall has been successful in reuniting parents and their children, and I have been told that she has been able to ‘flip’ children in 20 minutes.  This means that she can take (or has taken) an alienated child and, within 20 minutes, opened the child’s eyes and made that child see the target parent once more in a favourable light.  And so, the families get reunited.  Judge Wildblood says this:

In written advice to the court two years ago Ms Woodall had said this: ‘I have absolutely no doubt, based my extensive experience working with the children should these children be moved to live father, they would emerge from the alienated state of mind within a matter of minutes.’ I did not accept [that] view at the hearing when I considered it. Today Ms Woodall acknowledged that she was being over-confident when expressing that opinion.

Yes, well that’s not completely surprising.  And it’s not the first time.  In re S (2010) Ms Woodall again gave evidence that the therapy she was proposing would be successful.  Dr Kirk Weir was also involved in this case.  He thought it would be a waste of time.  It was.  Ms Woodall had to accept that any improvement there might have been had been ‘tiny’. 

So, it seems that Ms Woodall is naïve.  Possibly.

Next, we have to think about this:  Judge Wildblood goes out of his way to address the issue of why the attempt to change the residence of the children (pursuant to his judgement two years earlier) had been such a farce.  As he says, an analysis of this issue makes no difference to the final outcome.  So, why did he do it?  He says:

I have been asked to comment on the arrangements that were made to transfer residence to the father. In particular, I have been asked to consider the work of Ms Woodall who led the arrangements for the transfer to the father and also offered him professional guidance when the children first moved to him.

Who asked him?  It was surely the father.  And why was he asked?  Obviously because the father was not happy about the way the attempted transfer was handled.  And why does HHJ Wildblood not want to go into the matter in detail?  Because

Any such hearing would be extremely expensive and could not be placed into my lists now until the end of March 2020. The experts would have to give evidence and Ms Woodall would almost undoubtedly have to be represented (as she was before me today).

Why would Ms Woodall have had to have been represented?  Obviously because she was being criticised.  Why else would she need a lawyer of her own?   Why did the Guardian not have a lawyer?  Or any of the teachers, experts or others involved in the ‘handover’ or, indeed, the rest of the case?  Probably because none of those people were being criticised.   And why did Judge Wildblood include these observations about Ms Woodall at all?  After all, he names her.  He was critical of the other judges involved, but didn’t name them…So, he was able, demonstrably, to name some parties, but not others.  To address some issues, but not others.

It is difficult to avoid the conclusion that HHJ Wildblood felt that these complaints ought to be ‘on the record’ – out in the open.  Maybe he thought that the public ought to be aware of certain problems before they made decisions about instructing experts.  Maybe he was just trying to deflect the blame from judges.  But the latter conclusion seems unlikely.  After all, he was pretty scathing about those judges, albeit not mentioning them by name.

There is another, less benign, conclusion we might draw about Ms Woodall.

Essentially, there are two kinds of alienation.  The first type (let’s call it ‘hard’ alienation) is where the alienator is a hateful, vindictive narcissist who goes out of his or her way to deliberately sever the bond of love that the child has with the other parent.  Here, the alienator is pathological.  He/she has a Borderline Personality Disorder, Narcissistic Personality Disorder, or some kind of ‘cluster B’ pathology.  This is the case with the mother in re A (this case).  These alienators do not and cannot respond to ‘therapy’.

Then, there is so-called ‘soft’ alienation or ‘hybrid’ alienation.  In this case, the alienator is not necessarily hateful or spiteful, but just unthinking, idiotic.  Once a therapist can explain to them the error of their ways, they do respond, and all is well.  The child can be ‘flipped’. This is Ms Woodall’s wheelhouse.  If she has been successful with reunification (and I have no reason to doubt this), it will have been with ‘non-hard’ cases – ‘soft’ cases – or perhaps the opposite of ‘hard’ is not ‘soft’ but ‘easy’.

As an aside, soft cases can ‘morph’ into hard cases over time – particularly if not tackled early and robustly, as here.

As I see it, we are left with the following possibilities:

  1. Because Ms Woodall is not a doctor, she is unable to differentiate between hard and soft alienation.  So, she imagines that the therapy that works with a ‘soft’ alienator will work with a ‘hard’ alienator.  If so, she is naïve.  She is also unqualified to deal with hard cases.  They are simply beyond her.
  2. She recommends that she does her therapy in all cases.  It’s very expensive. 

Let’s hear some more from Judge Wildblood:

In her evidence at the final hearing Ms Woodall stated that she thought that the children had a ‘strong but suppressed attachment’ to their father which, when re-awakened, would lead to a successful transfer. Dr Blagg and the Guardian gave evidence to the contrary, saying that the passage of time and the reaction of the children to their father demonstrated that their attachment to him was weak. At the hearing when they gave evidence I accepted the opinions of Dr Blagg and the Guardian. I consider events have shown Dr Blagg and the guardian to be right – the fragility of the children’s attachment to their father has been demonstrated very plainly. Ms Woodall retains her opinion and, I have to recognise, this is an issue of differing professional opinions and case dependent

I am afraid that the learned judge is wrong.  This is not a difference of professional opinion.  Dr Blagg is a doctor, a professional.  Ms Woodall is a therapist.  The reason that Ms Woodall got this case so badly wrong, is precisely because she is not a doctor.  She is not a diagnostician.  She is simply not qualified to comment on children having “a strong but suppressed attachment”.   She is not qualified to diagnose cluster B parents.  She should never have been used as an ‘expert’, simply because she is not one.  Perhaps she is an expert ‘reunification specialist’ (subject to evidence), but she is not an expert diagnostician. Now, she may argue that, paper qualifications aside, she has much experience in this field.  But she is supervised.  Judge W again:

In making the above comments I do wish to record that Ms Woodall was a court appointed expert in this case and, although she may not be registered with a specific professional body and does not practise in an area that is subject to statutory regulation (as I understand it), she does have supervision from a highly respected consultant child psychiatrist.

That supervisor, indeed her mentor, is Dr Hamish Cameron.  If the court wants an expert, he’s the man.

A Word on Justice

Here, as in many cases (as many of us alienated parents can attest) the alienator’s actions have caused the target parent to spend thousands of pounds in lawyers’ fees and court fees (let’s ignore the part about ripping out the father’s soul).  She ignored orders, refused to cooperate, frustrated contact and besmirched the name of a good man simply out of spite.  Simply to get him out of the lives of his kids.

So, you would think that the punishment for these crimes would be mighty indeed. 

But there is no mention of anything.  Was she ever, during the entire case, ordered to pay any of the husband’s legal costs?  Was she ever imprisoned for contempt (lying on oath or ignoring court Orders)?  Did she have to do community service?  Did any of the judges ever fine her for anything?  Judges can do all this.

I’m pretty confident however that this disgusting child abuser (for that is what this is folks) got a completely free ride.

Conclusion

Yet another travesty.  A litany of disasters.  And a whole host of guilty parties.  The judges, the lawyers, the experts. 

What else is new?

Well, what else is new, is this:  For the first time, we have a judge who is honest, brave, outspoken.  We do not have justice, but at least we know why.  And as Nietzsche put it

“He who has a why to live can bear almost any how”

So, our message to Judge Wildblood is simply this – thank you.

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PA and DV

Parental Alienation (‘PA’), Domestic Violence (‘DV’) and False Allegations

Introduction

We have been hearing a lot recently about ‘Parental Alienation’.  My aim today is to offer a brief guide as to the condition, and what we can do to combat it.  I argue that PA is nothing less than the psychological abuse of a child.

Definition

There are many definitions out there, but probably the most persuasive and accurate is this:

“Parental alienation is the process and the result of psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent, relative or others.”

More simply put, PA happens when one parent deliberately turns their child against the other parent, without justification.   The aim is to sever the child’s relationship with the other parent, and it is motivated by hatred.  The parent that carries out this form of psychological abuse of a child hates the other parent more than they love their own child.  The child will be hurt by this process, but the alienator does not care.

In the first stage, the child is rewarded if she reports unfavourably on a contact visit with the ‘target parent’.  The child will also be punished if she reports that she had a great time with the other parent.  The alienator brainwashes and coerces the child, and ‘trains’ the child to loathe or fear the target parent, in exactly the same way that Pavlov trained his dogs.  The child quickly gets the hang of this and, wanting to avoid punishments, rejects the target parent.

After a while the child rejects the other parent without any need for coaxing.  The alienator then shifts ground, hiding behind the programmed child, and will say ‘well, I try to encourage contact, but the child will not cooperate.’   Now, the alienation process is complete.

The Players

Of course, most of the time, when couples separate, the children tend to stay with the mother.  Because of this fact, there is a perception that PA is something carried out by mothers against fathers.   This is an over-simplification.  There are many times when the alienation is carried out by the father against the mother.  Parental Alienation affects both genders, and in many different ways.

How can PA affect mothers?

There are many ways you might be affected by PA.  Firstly, you might be married to a man who has children from a previous relationship.  You, as their step-mum have invested time, money and love in these relationships.  If your husband’s ex deliberately frustrates contact and makes life difficult, it’s not just your old man who’s affected.  You will miss these relationships too…

You might be a grandmother whose child is going through a messy divorce, and contact is being frustrated or denied.  Again, it’s not just your son or daughter that’s missing out.  You are not getting to see the grandchild you love.   When a child is alienated, the child rejects everything to do with the ‘target parent’, including grandparents, aunts and uncles, even the target parent’s football team!

But probably the most painful way to experience PA is directly, as the target parent.   Can you imagine the horror, the pain, the anguish of not seeing your child for weeks, or months, sometime years?

No?  The alienator can.  That’s why he’s done it.  He knows that the best way to hurt you is through your child – to take away the one thing in the world that you love more than anything else.   Alienators are invariably narcissists.

False Allegations

When the alienating parent is a man, allegations usually relate to the mother’s mental health, alcohol or drug abuse, or imagined promiscuity.  Allegations against fathers usually involve violence or sexual abuse.  Either way, false allegations are pretty much routine in PA cases.   And always devastating.

Domestic Violence

One thing that mothers will be particularly interested in is an allegation of domestic violence.  As mentioned already, false allegations of ‘DV’ are commonplace.   There are problems with this.  Firstly, false allegations hurt the claims of women who have actually been victims of DV (see below).   Secondly, it is not unknown for abusive men to claim ‘parental alienation’ when they are accused of violence. 

So, what the courts need to do is simply (?) to sort the wheat from the chaff.  If the allegations are true, the court should be prepared to make an order for non-molestation (an injunction, or restraining order).  If the allegations are false, the accuser should be punished.   Judges are, or at least should be, experts at detecting lies.   After all, that’s what a judge does all day – works out who is telling the truth, and who is lying.  These determinations can only be made after a ‘fact-finding’ hearing, so this is something that should be pursued vigorously.  In my opinion, the judge cannot decide anything until facts have been determined.  Firstly, finding facts is important in its own right, but mostly this kind of hearing gives the judge a chance to weigh up each parent and see who is telling the truth.

The reality, on the ground, is that not much tends to happen in either case.  At UKAP, we conducted a survey on this topic, and the overwhelming majority of respondents indicated that the judge just wasn’t interested in these allegations.  The reason, I argue, is simply that such allegations are made every time – judges just become ‘case-hardened’.   False allegations usually involve the target parent somehow, miraculously turning into a monster the day after the separation!  Before that, curiously, they were just a normal parent – child caring/rearing was shared in the normal way…

We can see from this that one reason courts might be slow to grant injunctions is that judges are used to false allegations.  So false allegations hurt not only the target parent and the child, but also the cause of every woman that makes true allegations of DV.

So for the sake of victims of the horrendous crime of domestic violence, we must do all we can to discourage false allegations.

Paul Massey 22-10-2019

The author is an alienated parent, and founder of www.ukap.one a website dedicated to the problem of parental alienation.

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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.

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Looking for Dad?

God, the Missing Link, and Why Dads Matter

I am reminded of an interesting experiment outline by Robert Winston in his “Human Instinct” involving T shirts. Ten babies were washed and all given clean, identical T shirts. They then wore the T shirts for several days and the parents were instructed not to bathe the children. The T shirts were then put into unmarked vacuum sealed containers, and all of the mums and all of the dads were asked to try to identify their baby from the smell! All of the mothers picked the same T shirt – the one that smelled the cleanest. But the dads could all picked out their own child…interesting. Why would nature want to do that? Presumably there is an evolutionary advantage to men having a close bond with their children – in that way, perhaps, men would be more likely to stick around…

Reading, as I was the other day, about the ‘missing link’ between man and our ape ancestors and brothers, a thought occurred to me.  A big part of the human endeavour is ‘searching for dad’.

We are fascinated by this ‘missing link’ (more formally known as the ‘Last Common Ancestor’ or ‘LCA’).   It seems crazy that we should be related to animals at all.  I mean, we are qualitatively different to even the most advanced primates.  When was the last time you saw a chimp driving a Bentley or using a mobile phone?  Animals are pretty basic things.  They reproduce, defecate, sleep, eat and sometimes play hide and seek.  I am not really sure that elephants hope.  I am not convinced that monkeys are really that bothered about epistemology.  Humans are fab.

So, are we really related to primates?  Well, science tells us that we are, and, as we deify science, so we privilege the conclusions that science arrives at, notwithstanding that Darwin himself was pretty sketchy about the link between us and apes… Now, of course, we have to take into account that these changes (from ape to man) didn’t happen overnight, and did happen a long time ago.  The LCA turned up between 4 million and 13 million years ago (scientists like to give themselves a nice big margin of error…).  The LCA produced us and our brother apes.  There is some debate now between molecular biologists and palaeontologists as to whether our brother apes were swinging, knuckle-walkers like chimps and gorillas, or the type of monkey that walks along branches high in the trees.  But, whether they were ‘swingers’ or ‘walkers’, we seem wedded to the idea that we do have brother apes, all emanating from the LCA. 

But – who is the LCA?  Our dad. 

We have created God as a big bloke with a nice comforting beard, sitting on a welcoming, fluffy, comforting cloud.  Why did we do that?

Who is God?  Our dad.

We are all looking to be protected and guided and provided for.  That’s what dads do.

We need to make a case for dads.  The case for mums is pretty straight-forward it seems.  They give birth to us, carry us in their wombs, feed us, and comfort us.  Yes, some are better at it than others, but the prima facia case for mums seems unarguable.

Men are a different kettle of fish,  because, apart from having the ability to be dads (great or lousy), men also commit crimes.  Men are violent.  Men are competitive.  Men are, in essence, slugs and snails and puppy dogs’ tails’ (not sure what’s so bad about the tails of puppies, but..) Yes, women can be too but it’s rarer.

Non-human animal males are not that praiseworthy really.  A male lion will kill the offspring of a competitor.  Human males just take on the kids from previous marriages.  We are better than animals.  Now, this is a big claim, and some will argue that there are some great non-human animal dads out there, and some lousy human dads, and this is undoubtedly true, but let me get away with this for a moment.  The point is that humans are capable of much more sophisticated interaction with other humans than animals are with other animals.  We are capable of being much better dads than male animals because we are more evolved, cleverer.

So, it follows then that we ought to be shifting the paradigm.  Men are not merely competitive, feckless, violent thugs that go around shagging or fighting anything with a pulse.  We are not animals.   Yes, maybe we were 10 million years ago, but we have moved on just a bit.  Now we are carers.  Our governments give us Paternity Leave.  The times they are a changin’. 

Men are becoming like women…Women are becoming more like men.  That’s just how it is now, isn’t it?  Let us not debate here whether this is a good thing or not.  It is, from simple observation, a plain fact.

And, given that plain fact, it is about time that family law caught up. If, as a society we are happy for women to have the opportunity to work, we ought, by the same token, be happy to let men have the opportunity to be care-givers. If not that, then ‘normal’ dads. And if not THAT, can we at least see our kids?!

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Who’s in Charge?

Well… One thing everybody in ‘the system’ knows – it ain’t you, the targeted parent (‘TP’)!

The child is not in charge, because the authentic voice of the child is not heard.  In PA cases, the child simply is a conduit for the words of the alienating parent (‘AP’), a view parroted, more often than not by CAFCASS, which is why ‘wishes and feelings’ reports are completely useless and should be abolished.

Many judges will then parrot what CAFCASS say, and refer to CAFCASS as the ‘eyes and ears’ of the court – bad enough that we have the blind leading the blind…we seem to have the deaf leading the deaf as well!  It is a very disturbing thing to witness your child repeating the AP’s words, then CAFCASS doing it, and finally the judge…is there an echo in here?!

Now, there is the odd judge who will be robust.  Who will know the failings of CAFCASS and Guardians ad Litem, and not be afraid to say so.  And will ignore silly reports and recommendations from woolly-headed social workers.   Mrs Justice Parker is the obvious candidate, in re H:

“I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation …”

In my opinion, these words could legitimately be repeated in a majority of PA cases.

So, if the authentic voice of the child is not heard, if CAFCASS and the judge merely parrot the child’s expressed wishes and feelings, and if those are the wishes and feelings of the AP…

The Alienating Parent is in charge.

It’s like the AP is the bully in the playground, and the judge and CAFCASS are the cowardly kids that follow the bully around like a pale shadow, repeating the bully’s threats, saying at every turn “yeah”.

We must call for judges to be the supervising teacher in the playground, and to pull the bullies up and discipline them!  But of course, this does not happen. Judges at all levels simply do not enforce court orders, and APs just get away with ignoring the authority of the court, and encourage our children to do so…Mrs Justice Parker again…

“I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional”

Clearly, we need to get together and raise some funds to clone Mrs Justice Parker and put her clones in every family court in the land.  A radical solution, yes, but it’s got something going for it, no?

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Sexual Identity and the Mind/Body Problem

Intro

We are all aware these days of people that wish to change gender.  Such people feel, in essence, that, although they have a woman’s body, they ‘feel’ like a man (or visa versa).  That is, that, although they appear to be female, they ‘identify’ as male.  In essence, they have the wrong body.  Or the wrong brain.

Discussion

Let us start out by identifying the different kinds of individual one might encounter.  The first is genuine ‘non-binaries’ – these are individuals that are born with genuinely ambivalent genitalia – you literally cannot tell whether they are male or female – from infancy.  These individuals make up only a tiny percentage of the population.  What invariably happens is that doctors tend to choose the gender of the child, and the child then is treated, from that point forward as a male or a female.

Non-binaries are a special case – it is not that they have the wrong body or brain, but that they do not know which gender the body is, or which gender the brain is.

But most transgender people are certain that they have the wrong body.  So they change it, at enormous risk and expense.

Options

Well, it just occurred to me that, if you feel there to be a mis-match between the gender of your body and the gender of your brain, it might be easier, cheaper and less risky to change your brain, rather than your body.  If, for example you have a woman’s brain, but a man’s body, why not elect hormone therapy (androgens?) to ‘re-sex’ your brain?  Now your brain is masculine, to match the body you were born with…

Advantages

There must be many advantages to changing the way you think, versus changing your body.  For a start, brain treatments will probably be reversible.  If, after changing your brain from female to male, you change your mind (pun intended), then possibly the whole process can be reversed by prescribing oestrogen and progesterone and dialling back on testosterone.  Changing your body, on the other hand, will usually involve treatments that are not easily reversible (like having various bits amputated).

Next, we must consider the financial aspect.  I have no idea of the costs involved but a quick Google search tells me that I can expect a bill of at least £50k.   Who pays that?  Who should pay that?  In America you would have to find this money yourself.  In the UK, this surgery is available on the NHS.  Should it be? 

But, whoever foots the bill, it’s expensive.  Drugs would be relatively cheap by comparison.

And presumably there would be less pain and suffering – no painful, unpleasant operations.  None of the risks associated with general anaesthetics.

And then there is the cosmetic consideration.  I have no data on this and have gone out of my way not to find any, but I cannot imagine that a body that has had a sex-change operation is going to look as good as a natural body.

Problems

Well, the first problem I can foresee is that people will object that the essence of themselves is in their brain, not their body.  So, the existing personality needs to be preserved, and the brain should remain unaltered.

Thought Experiment:  If we remove your brain and my brain, and then put your brain in my skull and visa-versa, where are you?   Have you had a brain transplant, as conventional wisdom has it, or is it not the case that you have, in fact, had a body transplant?   Most people would say that ‘you’ are now in my skull with my body (poor you!).  You have had a body transplant.  For surely the essence of an individual is to be found in the brain, not the body.

And, if that is right, is it not ethically problematic to advocate the use of drugs (or any other therapy) to change a person’s brain?  Then again, if the decision to take drugs that changes the gender of a patient’s brain is the patient’s own decision, that is a matter for the patient, isn’t it?  And, one could argue, this patient has been remarkably unselfish, agreeing to change the way they think, rather than what their body looks like, saving, along the way £thousands.

Also, we routinely prescribe drugs to patients that are mentally unwell.  Those drugs change the way their brain works.  Why would this be any different?   I mean to say, could it not be argued that someone who believes they have the ‘wrong’ body is mentally unwell too?  If we prescribe Ritalin and Benzodiazepines to patients, what is so different about prescribing drugs that change the way we think about our gender?  

If I believed myself to be a brick, or a bird (something I demonstrably am not) presumably it’s ok to give me drugs that help me change the way I see myself.  Or should I change my body to that of a brick – or a bird?

‘Identifying as’

There is much talk these days of ‘identifying as’ something.  I look like a man, but I ‘identify’ as a woman.  I take this to mean that ‘I see myself’ as a woman.  That seems fine.  If one wishes to identify as a member of another gender, why not?  Indeed, if one wishes to identify as a brick, or a wooden fence, all power to you.  One can see oneself precisely how one wishes.

But what ‘I identify as’ actually means, in practice, is “I see myself as a woman, and I expect to be treated as such, by you and by society at large.”   And there is the problem.  Here, you are imposing your wishes on others. 

Is this really so different to the situation where a white man says ‘I identify as a black man’.  One can ‘identify’ as anything one wishes – that does not make it so.  Michael Jackson spent his entire life seemingly wanting to change form being a black man to being a white woman.  But this did not alter the fact that he remained black, and male.

Conclusion

One can ‘identify as’ anything.  If you identified as a brick but were in fact a man, this would be treated as a mental illness.  If a white person ‘identified as’ a black person, they would, again, be seen as having some kind of mental problem.  Are there no white people who identify as black, or visa versa?  And, if there were, should they have expensive and risky surgeries or other treatments to change their skin colour?  Presumably there’s a lot more to being white, or black, than merely the colour of one’s skin.  Likewise, presumably there’s a bit more to gender than merely the nature of the dangly bits with which one is currently endowed.  But where one identifies as a different gender special rules apply.

That seems wrong.