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 21^st 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.

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.

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?