Working to change the family law system of justice
You will see elsewhere that I advocate making PA a criminal offence, as well as a distinct tort. Well, I have found a lawyer that ‘gets it’ – and these are rare. The lawyer is June Venters QC, and her article is here.
I have to say that it is refreshing to find a lawyer that seems to understand this area of law.
Here is the case to which she was referring. What I am not clear about is what Order HH Judge Bellamy actually made. Perhaps I am missing something?
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!’
The Problem with Parental Alienation
As an alienated parent, I think about PA a lot. The thing I find hardest to understand is this:
How come I get it, and can explain it to anyone in 5 minutes, yet judges and CAFCASS workers don’t get it? Courts sometimes take ten years to work this stuff out, if they work it out at all. After a lot of contemplation, I think I have finally found the answer.
It’s not that they don’t get it. It’s not that they can’t get it. It’s that they WON’T get it. They REFUSE to get it, because it shakes their world view. THEY ARE AFRAID. I think the penny finally dropped with me when I read the results of our survey, when one respondent said that he got a report from an expert – he said:
“Amazing report that was dead on accurate: took 19 hours of interviewing and 8 psychometric tests of both parents, child and grandparents on each side. Diagnosis V995.51 (child abuse) and v61.29. Alienator showed in test to get MAXIMUM score on narcissism test. 220 page report from the psychiatrist and….Judge said PA was an American thing and the report was waffle!”
It reminded me of an example quoted by Dr Ludwig Lowenstein, where he tells of a case where he was involved as an expert. This was ‘back in the day’ when each side instructed their own expert. He was the expert for one side (it doesn’t matter which) and there was an expert for the other side. BOTH experts agreed that one parent was alienating the child from the other parent. But the judge still left the child with that parent…
Temporal Relativism
You know, I heard Judge Stephen Wildblood talking on FNF (Families Need Fathers) about this last year. He made the observation that, when he started out as a lawyer 37 years ago, the prevailing view was that you never, as a judge, ordered that a child live with a same-sex couple unless there was literally no alternative. He asks how we will look, in 37 years’ time, at the way we are dealing with PA cases now.
Alan Turing is often called the father of modern computing. He was a brilliant mathematician and logician. He developed the idea of the modern computer and artificial intelligence. During the Second World War he worked for the government breaking the enemy’s codes and Churchill said he shortened the war by two years. He was also a homosexual. In 1952 he was convicted of ‘gross indecency’ and chemically castrated. Two years later he committed suicide.
There was a time when, if a man criticised his friend for owning slaves, that he would be thought a fool, and would be derided for it. There was a time when a person would be thought a fool to argue in favour of universal suffrage.
I could go on, but you get the point. Now, homosexuality, universal suffrage, same-sex marriage, and the abhorrence of owning slaves are all “mainstream”.
There will come a time when future generations will be astounded that we treated alienated parents as we do, and that we allowed our children to suffer at the hands of narcissistic-toxic abusers.
At UKAP, our job is to hurry that process along. Let’s not wait 37 years – PLEASE!
How? EDUCATION, education, education! Judges and CAFCASS need to be educated, and become enlightened, exactly as society needed to be enlightened about slavery, homosexuality and universal suffrage.
Parental Alienation is WRONG.
The Paramountcy Principle and 50-50 Shared Parenting
Intro
The principle of 50 – 50 shared parenting is gaining ground across the world. But how does this affect the Paramountcy Principle, and what effect will 50 -50 parenting have on our children?
Definitions
The Paramountcy Principle is the principle highlighted by the Children Act 1989. Essentially, it says simply that, whatever other considerations are in play, the welfare of the child shall be the court’s paramount consideration. Further, the case law makes it clear that the longer-term welfare of the child ‘trumps’ short-term considerations so that it is, for example, profitable (for the child) to enforce contact or change residence if these improve its longer-term outlook, even if there will be short-term difficulties.
50 – 50 Parenting usually means there being a rebuttable presumption that, on separation, the child spend 50% of its time with each parent. The point is that the presumption is rebuttable – that is, that where 50-50 parenting is not the best solution for a particular child (perhaps one of its parents works on an oil rig) the court can make another order. Also, 50 – 50 parenting will usually be off the table if one of the parents has been violent or abusive.
Conflict or Harmony?
One question that arises immediately here is how these two ideas ‘fit’. Some people have said that the Paramountcy Principle must remain paramount and that the court’s hands should not be tied by a 50 – 50 Order. Others might argue that the idea of the ‘child’s best interests’ is too loose of a concept, leaving judges and social workers too much leeway in make recommendations and Orders.
UKAP argue this as well.
We feel that these two principles ought to be able to co-exist quite happily. The simple reason is that, if the ‘best interests of the child’ is too loose a concept, then 50 – 50 parenting helps ‘tighten up’ the definition.
The Conservative party had an opportunity to introduce 50 – 50 parenting with the Children and Families Act 2014 (helpfully subsumed into the Children Act). They backed away from this, when push came to shove, and we got, instead, a meaningless, watered down amendment to S2 of the Children Act, which says
“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.
So, we have a rebuttable presumption that SOME contact from both parents will benefit the child, BUT that contact can be minimal, even ‘indirect’ – meaning that you can send your kids a couple of emails a week, or, if you’re really good, a Skype call. So you go from seeing your child every day, hugging and kissing them, taking them to school and after-school classes, football practice, doing their homework with them (for them?!) and all the rest of it, to two emails a week…
Is that justice? Is that in the best interests of a child that loves and wants to see both of its parents as much as possible?
Let’s have 50 – 50 parenting now.
Now…there is a small rift here between England and America – a possible disagreement about where the emphasis of our focus should be. Some in England feel that America has a very ‘rights-based’ culture, and that this is a bad thing. It is a bad thing because perhaps it distorts and skews society – because ‘rights’ is often a zero-sum game – that is, if you give rights to one group, you run the risk of necessarily taking rights away from another. Further, this kind of idea misses the point – the point being the best interests of the child, not the rights of either parent.
But 50 – 50 parenting is not about the rights of the absent parent (typically, but not always the father). Here is an observation from Annika Saarikko, Finland’s minister of family affairs and social services. In Finland fathers spend more time with school-aged children than mothers, to the tune of eight minutes a day…
“This is a question of gender equality, but it’s more a question of the rights of the child,” says Annika Saarikko, Finland’s minister of family affairs and social services, one of six female ministers out of a cabinet of eleven. “This is not about the mother’s right or the father’s right – but the child’s right to spend time with both parents.”
Hear, hear!
This simple observation gives us the way forward. Far from conflicting with the paramountcy principle, 50 – 50 parenting helps define it.
But let’s suppose we ignore the child for the moment. We agree, don’t we all these days, that women and men should have equal rights in the workplace. You don’t need to be a feminist to believe this, merely an egalitarian. And, if you are an egalitarian, you would presumably agree that men and women should have equal rights with regard to the upbringing of children.
OK, that’s simple, surely.
Now, let’s re-introduce the child into the equation. Let us consider all of the ways that 50 – 50 parenting (which we have already established is fair between the parents) might harm a child. It is hard to imagine a lot of situations where the fact of a child seeing both of its parents equally is going to harm the child, isn’t it?
The only obvious one really is if one of the parents is abusive, and here we have to consider the position pre-separation. Did the parents have roughly equal, and plentiful contact with the child pre-separation? It is difficult to imagine then, that one of these parents developed these abusive tendencies at the precise time of the separation, absent some kind of psychotic breakdown. One look at the case law shows us that false allegations against absent parents are made as a matter of routine, by narcissistic-toxic parents that are seeking to exclude the other parent from the child’s life. Further, we know that judges hardly ever seem interested in these allegations, precisely because of this fact.
UKAP is of the view that ‘the child’s best interests’ is too woolly a concept and leaves far too much interpretation in the hands of a system that simply will not got the message that both parents matter. A rebuttable presumption of 50 – 50 parenting will give ‘the system’ a big, much-needed clue about what exactly the child’s best interests ought to look like ‘on the ground’.
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:
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.
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.
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.
Judges and Accountability
The judges of England and Wales are in quite a unique position. This is for a number of reasons – the full constitutional position is explained here. But, for these purposes, we do not need to know too much about the distinctions between the legislature (Parliament), the Executive (Government) and the Judiciary (Judges). One small anomaly worth a mention is the office of Lord Chancellor. Until as recently as 2003, he was simultaneously a judge, a cabinet minister and the Speaker of the House of Lords. The judicial role is now gone, as is the House of Lords role.
At the moment we are interested in exploring a tension that exists between judges qua judges, and judges qua employees of the State.
Let us consider other professions for a moment. A teacher has to do what she is told by her employer. So does a surveyor. So do all employees (doctors, to be fair do have some leeway but we’ll ignore that for a moment). In general, employees must do what they are told.
The ‘problem’ with judges is that they must, in a democracy, be independent. Fiercely independent. Judges quite often judge cases where the State, in one guise or another, is a party to those proceedings. Cases, perhaps, where the State has over-stepped its authority. Cases against councils, the NHS and so on. If judges were not independent, they would always find in favour of the state, and we would be living under a totalitarian regime!
Can we think of any other trade or profession where a humble employee can regularly tell his employer off or make decisions that cost the employer £millions?! Anyone else would be sacked!
And so we come to the first necessary quality for a judge. Judges must be BRAVE. They must resist pressure from the government. On the other hand, they will be disciplined if they stray into matters that are political, or they might choose to resign.
I hope we can all accept that there are bad lawyers, bad doctors, bad teachers, bad surveyors and so on. What happens to these guys? They get sacked, sued, or both. They are vilified, and their reputations ruined. Rightly so.
What about judges?
If a judge is negligent, incompetent, cowardly, lazy, incoherent or, perhaps, asleep, we have no recourse other than to appeal…to another judge. A High Court Judge can be sacked for bad or ‘unjudicial’ behaviour, but this has never actually been done. Probably because to do so requires a Petition from both Houses of Parliament…
Hell hath no fury…?
It has been mooted that one of the reasons people alienate their kids from the other parent is that the alienator has been scorned – rejected for another woman/man. However, our survey results do not support this claim. Many of our alienated parents were the ones scorned…
Nevertheless, alienators are angry. So angry that they hate you more than they love their own child. Their need is to hurt you. They want to cause you pain. And what better way than to alienate you from the one person you love most in the world?
But what kind of emotion is required for a parent to hate their child’s other parent so much? I read recently that the most powerful of all the emotions is humiliation. But we are, demonstrably, not talking about the humiliation of rejection in favour of another woman/man. I think that what we are talking about is the alienating parent punishing the child and you because the child always preferred you to the alienator. Yes, they’re jealous, but not of you and another adult – of you and your child.
I came to this conclusion whilst talking to another alienated parent. He was always the preferred parent. To the alienator, unstable and insecure themselves, this is a profound rejection and simply confirms that they are not worthy of love – what they always suspected. One alienator put it like this: “My mother told me once ‘I’m sorry but I always preferred your sister to you’”. This alienator was herself mangled psychologically by her mother. Little wonder that she should lash out as soon as that rejection is confirmed, yet again, this time by her own child. Additionally, it is worth noting that this alienator was also alienated from her father.
So, the idea that alienation is a “trans-generational mutagen” seems persuasive. Any thoughts?
Also, see this excellent analysis
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?!
