The Paramountcy Principle

The Paramountcy Principle and 50-50 Shared Parenting

Intro

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

Definitions

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

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

Conflict or Harmony?

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

UKAP argue this as well.

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

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

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

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

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

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

Let’s have 50 – 50 parenting now.

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

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

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

Hear, hear!

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

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

OK, that’s simple, surely.

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

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

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

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.

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.

Judges and Accountability

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

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?

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?!

The Judge’s Conflicts of Interests and Loyalties

Judges and Conflicts…

Judges are independent.  Of everything and everybody.  They cannot be influenced by the legislative.  They are above all that.

Hmm…

Is this actually true?

Judges find themselves in a position that is unique.  They are employees of the State.  Presumably, like all other employees, they have to do what they are told.  On the one hand.  On the other hand, they must be fiercely independent, and not be intimidated.

How does the average judge discharge this somewhat onerous burden?

http://www.telegraph.co.uk/news/uknews/law-and-order/10485276/Judge-Sir-Paul-Coleridge-quit-because-of-lack-of-support-over-marriage-stance.html

Cash and Kids – What’s Wrong with Family Justice?

Cash, Kids and Correspondence – What’s wrong with Family Justice?

Consider two married couples – the Alphas and the Betas.

Mr Alpha is an older guy, driven and hard-working – ruthless, cupiditous, avaricious.  Not too rich yet, but it is clear to all that he’s going to be.  Mrs Alpha is a very beautiful model.  She is also ruthless.  She wants cash.  He wants sex and power/control.  Both are narcissists.

They enter into an agreement.  The agreement runs roughly as follows (whether expressed or implied).  He says to her: “I want sex on demand.  I want you to raise my kids.  The house, our cars, and everything about our lives must be perfect, as must you.  You must laugh at all of my jokes.  I can also have sex with other women whenever I feel like it, and you will be fine with that – I want a Stepford wife”

She says “OK, I can do that.  What I want is your cash”

She is, in essence, a prostitute.  He is a client.  But they are both realists.  Both grown-ups.  They have made a deal.

Now we have the Betas.  They meet at university.  He is studying accountancy.  She is studying law.  They fall in love.  They marry and have kids.  Their deal is that there is no deal.  They simply love each other.  When they have their kids, they agree that Mrs Beta will stay at home and raise the kids, and Mr B will go out and bring home the bacon.  She foregoes her career. 

Fast forward 25 years.  Both couples divorce.  The reasons are unimportant.  Both women say “I want half the cash”.  Both men say “I want 50-50 co-parenting and shared residence”. 

These aspirations all sound fair enough, don’t they?

But let’s see what actually happens.

Mrs Alpha does not get 50% of the cash.  She is seen as greedy for wanting half.  After all, Mr A is now worth £250 million.  It’s interesting how societal prejudices kick in here.  Interesting how we blame a trade union for causing disruption to commuters when their members strike, rather than blaming the employer for unreasonable practises.  Interesting how we think of Mrs A as being a gold-digger for wanting half the cash, but we don’t vilify Mr A for being greedy in wanting to keep 90% of it (I am assuming that Mrs A has been a good and dutiful Stepford wife, pace their agreement). She simply says “You wanted a whore and you got one.  Now it’s time to pay”.  That seems reasonable, does it not?  But the courts balk at giving her half.  Seeing, after four years of litigation, the ‘lie of the land’, she settles for £15 million.  Now, this is a lot of money for most of us, but that is not the point.  The point is that it ain’t half.  An injustice has been done.

But she gets the kids.

Now let’s look at Mrs B’s case.  The Beta communal dosh is modest, at £500,000.  She ends up with less than half because Mr B has squirrelled some away abroad, and doesn’t say too much about his pension.  She doesn’t push it because, again, she has seen how the court is looking at it…  She settles for the house (perhaps with a charge over it in favour of Mr B) and monthly maintenance.  It’s just not worth the aggro of pursuing things further – the costs are out of all proportion to the potential gains.  As the French say, “Ca vaut pas la peine”.  Or you could, amusingly, change the gender of the noun, add a small spelling change, and it still makes sense: “Ca vaut pas le pain”…  Again, an injustice has been done.

But she gets the kids.

Conclusion

The “system” favours men in financial matters, and women in children matters. 

Why?

Well, how about blaming men?  Or, perhaps more accurately, paternalism.  The whole system is predicated on the notion that girls and women are ‘sugar and spice, and all things nice’.  That’s why they get the kids.  Pretty patronising to women, no?  And it does men no favours either.  If the family court system favours women in child-related matters, it is the fault, ultimately, of paternalism – as a lawyer might say “volenti non fit injuria” (roughly “no injury can be done to a consenting party”).  Men made the crappy system, men suffer from its injustices, child-contact-wise.

But, rather than looking at matters in this political kind of way, we could see them in a more anthropological kind of way.  It’s not anyone’s “fault” that men get the bacon and women get the kids.  It’s just how it was always meant to be, since we first dropped out of the trees onto the Savannah.  Men went out and hunted stuff to eat, whilst women stayed in the cave and looked after the kids.  It’s simply that nature has designed us for particular tasks according to our respective physiologies. That sounds like common sense, doesn’t it?

But now?

Having said all of this, we now live in the 21st century.  Could we not evolve a bit?!  The relevance of ‘muscle’ has long-since outlived its usefulness.  Cash is the new muscle (Sorry, Robert Winston, not brain).  And women are just as good at getting it now as men.

Equally, men have learned to co-parent, and many men make better caring parents than many women. 

Women have become more like men, and men more like women.

It’s time to give women half the cash and men half the kids.  And for there to be correspondence between the two things.

What is ‘Significant Psychological Harm?’

Domestic Abuse, Parental Alienation, and Sorites Paradox – It’s all just semantics…

Introduction

If you have a grain of sand, that is not a ‘heap’.  If you add another, that is still not a heap.  Clearly, the addition of one grain of sand is going to make no difference to whether or not you have a heap.  The problem is that, on this basis, you will never have a heap.  But we know that, at some point, you WILL have a heap…but when?  That’s Sorites Paradox.

This kind of problem arises all the time in law.   For example, it is not legal to have sex if you are 15 years and 364 days old, but perfectly legal 24 hours later.  Where do you draw the line, and on what basis?  Who decides, and why?

The answer seems to be that ‘you have to draw the line somewhere’.

The UK Government has just released some guidance about domestic abuse.  Help is available from the Department of Work and Pensions (?!).  Who is this help available for?  Well…

“The cross-government definition of domestic violence and abuse is:

any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:

  • psychological
  • physical
  • sexual
  • financial
  • emotional”

There are two things to note here.  The first is that domestic abuse does include ‘psychological and emotional’ abuse.  The second is that this help is available to persons ‘aged 16 or over’. 

Victims of psychological and emotional abuse aged 16 or over

Well, what reasonable person would argue that these victims deserve support?  Nobody.  That much is, surely, uncontroversial.

Victims of psychological and emotional abuse aged under 16

The problem with this initiative for STOPPA is that there appears to be an assumption that people under 16 are already adequately catered for.   We know that this is not true.  Not in practice.

The Psychological and Emotional Abuse of Children

  1. Theory

The law provides plenty of remedies for the punishment of persons that abuse children.

Let’s start with S 66 of the Serious Crimes Act 2015, which amends Section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), to add psychological injury to the offences listed.  Simply put, it is an offence to abuse a child psychologically.

Next, we have S37 of the Children Act 1989, which empowers the court to make a care or supervision order in respect to any child where, to do so, benefits the child’s welfare.  This can be read, for our purposes, in conjunction with S43 of the Act, which says

“Child assessment orders.

(1)          On the application of a local authority or authorised person for an order to be made under this section with respect to a child, the court may make the order if, but only if, it is satisfied that—

(a)          the applicant has reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm;

(b)          an assessment of the state of the child’s health or development, or of the way in which he has been treated, is required to enable the applicant to determine whether or not the child is suffering, or is likely to suffer, significant harm”

So, this is all very simple.

It is a criminal offence to abuse a child psychologically, and (separately, or in conjunction with this sanction) the court can order an investigation and, if necessary, order that the child be taken into the care of a Local Authority if it is of the view that there is a risk of ‘significant’ harm to the child.

So far, so good.  Good theory.  What about in the real world?

  • Practice

In practice, as so often with the law, we come down to semantics.  And this is where Sorites rears his ugly head.  Legal books are filled with cases that address the issue of semantics.  What does ‘reasonable’ mean?  What does ‘subjective’ mean?  What does ‘objective’ mean?  What does ‘semi-objective’ mean?  What does ‘country’ mean, and so on.  The rest of the world seems to know instinctively what ordinary words mean, but the law must be precise.  So countless cases are heard in courts all the time that attempt to define terms that most of the rest of us take for granted.

This is right and proper.  For your idea of ‘green’ might be different to mine.  Your idea of what constitutes a ‘table’ might be different to mine and so on.  The law is there, amongst other reasons, to define terms.

In this context, we have to decide the meaning of two common English words – “psychological” and “significant”. 

And, again, we are faced with the age-old problem that we all have different ideas about what these words mean.  This is where the law is exposed as a somewhat clumsy interpretative and definitional tool.  Because you might ask 100 judges what “significant” means on any set of facts, and get 100 different answers.  You might ask 100 different experts what set of facts would amount to “psychological” harm and get 100 different answers.  It all depends on the facts of the case.

But surely there are some cases where everyone would agree that the child has suffered, or is suffering, “significant” harm.  And there are.  But there is also a whole truckload of cases where, as laymen, we would say “surely this harm is significant” and judges seem to go quiet on the issue. 

There will also be cases where ordinary people would regard harm as psychological or emotional where a judge might say “well, yes, that might be some kind of harm, but it is not serious enough to be classified as psychological.”

Is the harm caused by PA “significant” and can it really be described as “psychological”?

If the answer to both of these questions is “yes” then, logically, there should presumably be a large number of prosecutions under the Serious Crimes Act, and a large number of children taken into care following the psychological abuse caused by PA, right?

But there is not.

So, it follows that somebody somewhere does not feel that PA causes psychological harm, and/or that any harm so caused is not “significant”.   

Who are these people?

Well, those that determine whether there is a possible breach of the criminal law are the police and the CPS (Crown Prosecution Service).  Whether there is an actual breach, and a criminal offence, is decided by judges, juries and magistrates.

Those that determine whether children need to be protected under the Children Act are judges guided, crucially, by social workers.

Case Study

A good place to start is the case of re W [2014] EWCA Civ 772.  

This is a case where Lord Justice Ryder gave the leading judgment.  He thought that, on the facts of this case, the harm suffered by the child was “significant”.  Lords Justices Underhill and Laws agreed.

The Facts of the Case

The child in question was an eight-year-old girl.  Judge Cardinal (a County Court Judge sitting as a High Court Judge) had ruled that the girl should be removed immediately from the care of her mother.  The mother asked for permission to appeal.  The child was represented by a Guardian.  The Guardian, the father and the Local Authority all opposed the appeal.

At a finding of fact hearing in December 2010 the court concluded that the child had been sexually abused by her paternal grandfather. There was then a further finding of fact hearing before Judge Cardinal that immediately preceded the child’s removal on 11 November 2013 and which dealt with further serious allegations made by the mother against the father.

Judge Cardinal made the following findings. He held that the mother

1. (i) had wrongly suggested that the child did not want to see her father, and was frightened by him;

2. (ii) had knowingly sought to prevent the child from having a relationship with her father by putting pressure on her about seeing him, and by putting obstacles in the way of contact;

3. (iii) had deliberately and wrongly sought to exclude father from school events and being involved in the child’s life;

4. (iv) believed that the father was involved in the child’s abuse in London (i.e. the abuse perpetrated by the paternal grandfather), and had informed others of her belief;

5. (v) misled the court by saying that it was the child rather than herself who struggled with the grandfather’s abuse;

6. (vi) deliberately put the worst interpretation on events to place obstacles in the way of the father’s contact;

7. (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);

8. (viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;

9. (ix) is out of control, believing her own propaganda and convincing the child of it: creating a situation that is deeply concerning – the child was and is subject to influences which she should not be;

10. (x) is worryingly obsessed by the abuse of the child by her paternal grandfather to the extent that she had unfairly taken an adverse view of the father and worked against his contact at every opportunity, save when she could police it herself. Her reluctance to let him develop a natural relationship with his daughter was plain for all to see; and

11. (xi) had encouraged the child to have an unhealthy attitude towards her father, to make untrue allegations, to know more about sexual matters and about the case than was good for her with the consequence that her emotional and psychological progress had been damaged.

The judge concluded that the child had suffered significant emotional harm in her mother’s care within the meaning of section 38 CA 1989 and that her psychological safety required her immediate removal from that care.

The mother argued that there was no risk to the child that necessitated immediate separation, that removal of the child was disproportionate, that the mother’s care was better than ‘good enough’ and that she had had insufficient notice of the possibility of the child’s removal.

Lord Justice Ryder held that there was no procedural unfairness.  He further held that

“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.”

He said “I ask the question rhetorically: given the court’s findings, how could the judge leave the child with the mother?”

The mother’s appeal was dismissed.

Questions Arising

The reason that this case is such a good starting point for our purposes, is that, given Judge Cardinal’s findings of fact, this child was clearly suffering significant harm at the hands of her mother.  STOPPA argues that there can be no serious argument about that.

The question that arises, then, is this:

Are the facts in this case so much more serious than other cases that have not been regarded as involving serious emotional/psychological harm?

If not, then we must ask why more cases are not moved into the public law arena, moving children to local authority care.  (We will leave aside, for the moment, whether such a move does actually serve the best interests of the child).

If this case is really serious and so much more serious than other cases, what is it about this case that ‘tips the balance’?

What if the damage in this case were just a bit less serious?

We see above that there were 11 findings made by the judge that, collectively/cumulatively ‘tipped the balance’.  Here comes Sorites again…  What if one of these were removed?  Or two?  Or five?  See the problem?

This is why cases have to be decided on their own facts, some would argue.

However, we could also argue, just as effectively, that the balance should be tipped, and the harm regarded as “significant” if just some of the key findings were replicated in other cases.  In other words, we could and should use cases like this to provide, at the very least, guidelines as to what might constitute “significant” harm for the purpose of the Act.   Our telos should be certainty.  Certainty is a worthy goal.  Not always easy to achieve, of course, but children need it in their daily lives, and litigants need it in their dealings with the courts.

Let’s look at finding 7 – to remind ourselves:

“7. (vii) encouraged the child to make false allegations against her father because of her own fear of contact (which the child did at her mother’s behest despite being a daughter who delights in seeing her father);”

Let’s suppose that this were the only finding of fact – that the other 10 findings were just not there.

Could it be said that encouraging a child to make false allegations of sexual abuse against her father (or anyone else) amounts to “significant” harm to the child?  To emotional/psychological abuse?  STOPPA intends this question to be rhetorical.  Is it possible that such encouragement could NOT be abusive?  Is it possible that, being abusive, it could not be regarded as “significantly” so?

What about finding 8?

“8. (viii) had told the child about alleged domestic violence on the parties’ separation to influence the child against her father and to cause her to make similar allegations;”

Same applies.

We could go on.  The point is that every time a judge makes a finding like finding 7 or 8 it should not be difficult to conclude that there is significant emotional/psychological harm to the child.

So – are there other cases where such findings were made, and, if so, was an order under SSs 37 – 43 of the Act then triggered?  And if not, why not?  And, crucially what do we do if such harm is found to have occurred?  Well, get the child outta there for a start!  Moved to Local Authority care?  Maybe, if there is some kind of risk to the child at the other parent’s house.  Moved to the other parent, if there is no risk and safeguarding procedures have been conducted?  Of course!

Are there other cases involving false allegations against the TP?

You bettcha!  According to Families Need Fathers, false allegations are made somewhere between 48% and 63% of the time.  Looking at the case law, you might think this figure to be higher.  At all events, false allegations are very, very commonplace in PA cases.  This is not open to serious doubt.