Legal Aid, and Public Law vs Private Law
What have these ostensibly
disparate subjects got to do with each other, and why do we care? Well, the common factor is justice.
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
(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:
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
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) 
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
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:
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
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.
Court Journal Volume 2 | No 1 | 2011