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.

PA Cases are Simple!

ARE PARENTAL ALIENATION CASES SIMPLE?

Right at the beginning of my case, I suggested to the judge that my case was simple. He agreed. Either my ex was turning my child against me and trying to destroy his relationship with me, or she was not. Either she was a malignant narcissist trying her utmost to hurt me, not caring about hurting our child in the process, or I was a paranoid fantasist and possibly a dangerous individual from whom my child needed protecting. For me, it would be a ‘simple’ matter of putting her in the witness box. Her lies would be easily exposed.
Two years have passed, and still I have not seen my son…And my ex has still been nowhere near a witness box.

Introduction
There are some cases where the alienation is justified, because the TP has done something wrong. BUT these are excluded, by our definition of PA:

“A process, and the result of, the psychological manipulation of a child into showing unwarranted [STOPPA’s emphasis] fear, disrespect or hostility towards a parent or other members of the family”

Then, there are cases where the AP is doing the alienation negligently or accidentally. This, seemingly, may involve the AP just being a bit thick, or perhaps deluded. Somehow, this person does not realise that more subtle methods of alienation have an effect too – rolling their eyes at the mention of the TP, talking in a derogatory way about TP within the child’s earshot, asking the child to phone the AP as soon as the child gets to the TP’s house, asking the child if he will be ‘alright’ going to the TP’s house etc etc. Does anyone really believe that this is all ‘innocent?’ And, even if someone does believe this, it is still behaviour that has to stop, isn’t it? The AP needs educating. Or maybe somehow the AP has become genuinely worried (albeit with no rational basis) that TP is someone from whom the child should be protected (in which case the AP, again, needs educating). STOPPA doubts that many APs who do this are genuinely deluded or insensitive to their results of their acts and omissions. That is woolly-headed nonsense.
We can get rid of these types of case.
The PA cases we are talking about here are those where the TP has done nothing (substantially) wrong, and where AP knows exactly what he or she is doing. Let us call these ‘pure’ cases, or ‘type 1 cases’. Some experts feel that all PA cases are like this. Other experts think that type 1 cases comprise only a proportion of all PA cases. STOPPA does not care. Experts can argue about this – it’s not for us.
For our purposes, here, we are talking only about type 1 cases and asking why the courts cannot get even these ‘simple’ cases right.

So, if PA cases are simple WHO has an incentive to tell us differently?
CAFCASS
Well, CAFCASS for a start.
If PA cases are simple and CAFCASS still cannot spot them (despite having a specific tool for the job), that makes CAFCASS utterly incompetent, does it not?
So, of course PA cases MUST be complicated, right?!
EXPERTS
Well, if PA cases were simple, you wouldn’t need to spend £5k on an expert’s report, would you?
LAWYERS
Same rule as experts, but with more £s.
JUDGES
Judges…hmm…this is an interesting one. If you listen to some judges, like HH Judge Stephen Wildblood, you would be forgiven for thinking that judges ‘get’ PA. Well, either they do, or they do not.
Possibility A – Judges do not get PA
STOPPA thinks that this possibility can be discounted without too much difficulty, and STOPPA is inclined to accept Judge Wildblood’s assertions here. The simple fact is that judges are very experienced – they see these cases all day, every day, across the length and breadth of the UK. One needs only a very cursory glance at the decided cases, to come to this view.
Further, PA can be explained in about 5 minutes to an intelligent ignoramus. Judges are much better-placed than that.
Possibility B – Judges get PA
OK, so judges understand PA. Yet, look at the cases. With or without lawyers, McKenzie friends or LIPs, these cases drag on for years.
Why?

Who has the power? Who has control of the cases? Who manages the cases?

JUDGES

So, our initial conclusion is this:
Judges have the power to manage PA cases properly, swiftly and effectively. Yet they do not do so.

SO:
Why do judges handle cases so badly?
Your comments and theories are invited…Are judges just weak? Overly permissive to hostile-aggressive parenting? Feeble windbags? Or are their brains infected with a world-view that is outmoded and out-of-touch with the realities of PA ‘on the ground’? Are there/should there be different rules according to the age of the child?

The Scandal of Court Fees

Courts Rake in Huge Profits from Court Fees – The Implications for Access to Justice

It seems that, following a huge hike in court fees last year, the Courts Service have made a very nice profit of just over £100 million, according to figures released in December 2017.

The family courts raked in £186 million…

Read the full report here

So, the family courts are responsible for the profits!  And then some…

Well, that’s one way to look at it.  You could take the view that if court fees were a little higher elsewhere, family courts could provide help to our children and us, for free…And, given that our children are surely the most important recipients of English justice, that would not be unreasonable, would it?  Particularly given that Legal Aid is not available.  And companies that want to sue each other could pay a bit more…

And then I woke up…

So, what does it all mean?

Well, if you add together the facts that Legal Aid is not available for us, and that court fees are so high, there will be a large number of TPs that are going to struggle getting access to justice, surely a pretty fundamental right in an advanced society.

Now, to be fair, you can get exemptions from court fees.  The eligibility criteria are

Savings

You need to have less than £3,000 in savings and investments if you’re under 61.

You can have up to £16,000 in savings if your fee is between £1,000 and £10,000, or if you or your partner are 61 and over.

Benefits

You need to be on a low income, or on one of the following benefits:

  • income-based Jobseeker’s Allowance (JSA)
  • income-related Employment and Support Allowance (ESA)
  • Income Support
  • Universal Credit (and you earn less than £6,000 a year)
  • Pension Credit (Guarantee Credit)
  • Scottish Civil Legal Aid (not Advice and Assistance, or Advice by Way of Representation)

Income

If you’re not on any of those benefits, you need to earn less than £1,085 a month before tax if you’re single, or £1,245 if you have a partner.

You can earn an extra £245 on top of that for each child you have.

For example, if you have a partner and 2 children you have to earn less than £1,735 to be eligible for help with court fees.

So, really, this will help some people, but there will remain a massive tranche of litigants that are too rich to qualify for exemptions, but too poor to fund the fees.  Hiked fees + no legal aid = a double whammy for us, and for justice. 

But the issue of access to justice is being looked into. The Bach Commission will explore establishing access to justice as a fundamental public entitlement.  Their interim report can be seen here.

On Legal Aid, the Commission says:

“In their submission to the Commission, the Law Society wrote that: “We re-affirm the philosophy behind THE CRISIS IN THE JUSTICE SYSTEM IN ENGLAND AND WALES | 19 the Legal Aid and Advice Act 1949 that nobody should be unable to enforce or defend a right for want of the advice and representation they need to do so effectively.” The Commission agrees. Legal aid plays an integral role in our justice system, enabling those who cannot afford to pursue claims and defend themselves privately to access legal help. The narrower scope of legal aid has seriously damaged the ability of the legal system to uphold the principle of equality under the law, and thus the rule of law itself.”

UKAP will keep you posted…

Disadvantaged Fathers

STOPPA Blog # 4

New Research shows Fathers to be Disadvantaged in the world of ‘the family’

13-12-17

New research from the Fatherhood Institute, funded by the Nuffield Foundation, shows that men are disadvantaged in family life, in a number of respects.

The report claims that

The wider British culture is not, in the main, supportive of couples who want to ‘do things differently’ by sharing earning and caring more equally.

It says that the media portray fathers as not being engaged in intimate care-giving, or that, when they are, they are portrayed as bungling and incompetent, even though only 13% of Britons think that it’s the man’s job to work and the woman’s to raise the children.

How much of this though is engendered by men themselves?  It is, feminists might argue, the fault of men that they ‘system’ is set up as it is, in favour of women, because it is patriarchy, ultimately, that has given birth to the idea that women are better parents – girls are, after all, ‘sugar and spice and all things nice’ where boys are ‘slugs and snails and puppy-dogs’ tails’.  According to the report itself, for example fathers are still

“more likely than mothers to say very young children need their mother above anyone else”

And

“British mothers are more likely than fathers to say they should be the parent to stay at home, even if they earn more than their child’s father”

It seems that we Brits are pretty old-fashioned.

The problem seems to be that the workplace is set up to inhibit mens’ attempts at achieving equality:

“Legislative frameworks and institutional practices also impact on the ‘choices’ mothers and fathers make in terms of earning and caring. For example, employed fathers are almost twice as likely as mothers to have requests for flexible working turned down (Olchawski, 2016), and to fear that asking to work flexibly will damage their careers (Working Families, 2017).”

But perhaps British men prefer their women to stay at home.  Many might think that clearly-defined roles like this make for a happier more harmonious relationship.  That seems to be wrong:

“Fathers with full-time ‘at home’ partners actually experience more stress than men whose partners are in paid work (Crompton & Lyonette, 2008), possibly because these families tend Executive Summary 3 December 2017 Contemporary Fathers in the UK Fatherhood Institute to be poorer. Nor is involved fatherhood a middle-class pastime: lower earning fathers undertake more childcare than managerial/ professional dads (Hook & Wolfe, 2012).”

STOPPA concludes from this study that there are many surprises to be discovered about home life, once one takes the trouble to look.  Certainly more can and should be done to empower men in family life and to give both men and women more flexibility when sharing their work-life balance.

Legal Aid, Public and Private Law

BLOG #3

Legal Aid, and Public Law vs Private Law

12-12-17

What have these ostensibly disparate subjects got to do with each other, and why do we care?  Well, the common factor is justice.

Introduction

Legal Aid is not available in family cases apart from where there is domestic abuse (‘DA’).  This, I argue, means, for all practical purposes, ‘DV’ (Domestic Violence).

For a case to be treated as a public law case, there needs to be a risk of significant harm.

Section 31 (2) of the Act reads:

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant [my emphasis] harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i)  the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.

So, we start from the premise that, whether applying for Legal Aid, or attempting to move a case over from private to public law, we need to show significant harm.

What is Public Law, as opposed to Private Law?

Public law is law that involves the State.  So, criminal law is public law because the State is the prosecutor.  In the same way, when Social Services become involved under S 31, the State is trying to protect the child, but although criminal sanctions are sought against the abuser, the main objective is to protect the child.

Private law means the law that governs relationships between citizens, individuals.  So, when A sues B for negligence or defamation for example, this does not concern the State.

Our cases, as TPs usually mean that we are involved in private law.  We have commenced proceedings against our ex, seeking contact with our child, or for residence to be transferred to us, or some other similar remedy.   We are not looking for the AP to be punished, or for the children to be taken into care.  PA is (usually) private law.

Social workers look at these cases differently, and have differing levels of expertise and experience in both.  Public law cases are in many ways easier to deal with, in the sense that the abuse is obvious to all concerned.  If a social worker visits a residence and sees used condoms on the communal stairs, discarded syringes and empty beer cans, she will spot a problem.  Hopefully we all would.  When she goes inside and sees multiple children in soiled nappies, and mess everywhere with nary an adult in sight, she might well conclude that her initial impressions of abuse/neglect have been confirmed.   So, this situation is easy.  Not easy to deal with, of course, but pretty easy to diagnose.  Clearly though, there are other cases that are much less obvious than this, and discretion and experience will come ever more into play.

The problem with private law PA cases, is that they are much harder to spot.  The differences have been highlighted by Dr Kirk Weir, who says:

“In care cases one tends to see people whose limited parenting capabilities are overwhelmed by accumulating disadvantages. By contrast one might characterise private law cases as occurring between individuals who have no serious background of disadvantage and who may be employed and socially successful. The children in the two groups tend to be very different. In care cases the children tend to beset by disadvantages, behavioural problems and learning difficulties which set them apart from their peers. In private law cases teachers often comment that were it not for knowledge of the extreme conflict between the parents they would not have regarded the children involved as having particular difficulties.

Fear and Loathing When I began to see private law cases I was not expecting to see nice respectable parents who were profoundly dishonest and devious. I was caught off guard by the intensity of hatred and emotion, the extremes of denigration of an ex-spouse and the total resistance to the idea that the non-resident parent had anything positive to contribute to their child’s future development. I met nice children who were filled with fear and loathing for a parent they may have loved at one stage in the past. These children were totally resistant to the idea of any form of contact be it direct or indirect[i]

It is clear then that public and private law cases are very different.

But are they?

You may feel, reading Dr Weir’s views, that public law problems arise in socially-disadvantaged families, and that PA cases happen in ‘nice’ middle-class families, and that would probably be a fair interpretation of what he says. 

But what about private law PA cases that are so serious in nature that the PA amounts to ‘significant harm’ for the purpose of the Act?  If a PA case were that bad, surely it would then be right to treat it as a public law matter, to be dealt with under S 31, by the Local Authority.

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.

So, it all depends, as we have said, on the meaning of the word “significant”

In the case sited above, there were false allegations against TP that he had abused his children.  The children were so traumatised by these allegations that they could not move directly to F’s home.  This was a very serious PA case.  On the facts of this particular case, the threshold criterion of ‘significant’ harm was made out, and the child was moved to Local Authority care.

So, it IS possible for PA cases to be so serious that the harm it causes to the child amounts to ‘significant’ harm.  To be noted, though, is that the judge stressed that this applied on the facts of this particular case.  The harm has to be really serious to trigger Local Authority intervention.

One of the problems with the law is that it is seen in different ways by different judges – what one judge thinks is significant harm, another might see as ‘concerning’ or ‘worrying’ or something like that, but falling short of ‘significant’.  Judge Stephen Wildblood has commented that it is very hard to move cases over from private to public law, because it is hard to ‘cross the threshold’ into ‘significant’ harm.

But, what if it did?  Would we want our children moved into Local Authority care?  Well, maybe, maybe not.  The problem is that, even if they are moved, the social workers assigned to ‘de-brainwash’ the child are just not qualified to do it.

Social Workers and Rehabilitation of the Child

The problem here is that Social Workers simply do not understand the dynamics.  Some words from Karen Woodall:

“What many practitioners in this landscape do not understand is that parental alienation is made manifest by the use of power and control behaviours in a parent.  This parent may be psychologically unwell but high functioning and may at the same time appear to be utterly compliant in most scenarios.  The parent is likely to rely upon the child’s refusing behaviour as evidence of the rejected parent’s historical poor relationship skills and is additionally seen to be very capable in a practical parenting capacity.  It is not until this parent is asked to do something that they really do not want to do, (make the child see the rejected parent for example), that the underlying dysfunctional behaviours are seen.  Encountering such a parent can be difficult for naive practitioners who are unaware of their own subjective material because the parent is powerfully manipulative and as such is capable of extreme manipulation.  Which is why so many social workers in the UK, who are brought in at the point where the welfare threshold is crossed in alienation cases, fail the child they are being asked to rescue, becoming instead, aligned with the alienating parent.[ii]

So – have we then moved our child from the frying pan into the fire?  It doesn’t look promising, does it?  A life with a narcissistic hostile-aggressive AP, or with a Local Authority that may well simply compound the harm.  Until social workers are better-educated in PA it is likely that they are going to do more harm than good.

Why do Social Workers not ‘get it’ and is there hope?

Woodall talks about Social Workers seeing themselves as ‘rescuers’ – that is, they feel that the child needs to be rescued from both parents, but

“Because resolving parental alienation requires an exchange of power and in the space around the welfare threshold, this power could be used responsibly to swiftly and permanently liberate the child from the problem.   Interlock the power held by the state which is invested in social workers, with the mental health interventions known to work for alienated children and the child abuse scandal from the post separation landscape of the past five decades, can be readily and swiftly dealt with in the UK.”

The conclusion must be that, until Social Workers are better educated in PA, transfer to a Local Authority’s care is not the right way to go.  Social Workers are not equipped, at this point, to undo the damage of PA.

So, this leaves PA in the hands of the private law system.  A system that has let our children down, shamefully, for decades.  And private law means NO LEGAL AID.


[i] Family Court Journal Volume 2 | No 1 | 2011

[ii] https://karenwoodall.blog/2017/12/09/the-drama-of-being-a-social-worker-counter-transference-in-the-post-separation-landscape/

The Meaning of ‘Significant Harm’

Section 31 (2) Children Act 1989, and the meaning of ‘Significant harm

S 31 of the Children Act 1989 says this:

“31                Care and Supervision

(1) On the application of any local authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority . . ..

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child’s being beyond parental control.”

Firstly, why is this provision of interest to TPs? 

Well, if we can show that the harm our child is suffering from PA is “significant”, the local authority could take our child into care.  Obviously (to us at least) our child is suffering this harm, and it is significant.  But, how significant would that harm have to be for us to be prepared to allow our children to go into local authority care?  In the care of a narcissist or in the care of a local authority…not a great choice…perhaps we could call it ‘the evil of two lessers’.

But, maybe if we could get the child moved to local authority care, that could be used as a stepping stone to moving the child into our care.  It’s not a great solution, but at least the child would be removed from the AP.  And courts have used this kind of device where a child was so alienated (by the time the courts had got to grips with the case) that he would not move directly into the TPs home, so was moved into local authority care as a temporary measure. (Re M (Intractable Contact Dispute) [2003] 2 FLR 636)

In: W (A Child) [2014] EWCA Civ 772

Lord Justice Ryder noted that

“The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child [STOPPA  comments: So, the AP must be censured, whether ‘mad’ or ‘bad’]. The judge’s finding that the mother was “bent on manipulation [STOPPA comments: this shows a ‘guilty mind – a positive intention] and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court. [Our emphasis][STOPPA comments:  Surely this means that psychological abuse of this severity should be regarded as “significant” for the purpose of S 31(2) and can and should be seen as equivalent harm to that caused by sexual or violent abuse, and can and should trigger intervention by the Local Authority]

Indeed, Ryder LJ goes on to say:

“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 [STOPPA’S emphasis]. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order.

So…It is possible for PA to trigger transfer of care of a child to a Local Authority.  In theory.  In practice, we as TPs are going to have a lengthy uphill battle to get this done…

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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