Reply to Child Arrangements Programme Review (Private Law)
It could be argued that the causes of injustice in the family court are many and varied, that there is a very complex ‘symptom picture’ and that the arguments are finely-grained.
We have to look at judges, CAFCASS, societal and cultural norms and world views, the role of Legal Aid (or the lack of it), Litigants in Person, and so forth.
My claim is that, whilst this may be so, the single most obvious and ‘fixable’ cause of injustice in the ‘Family Law System’ is weak, unenlightened judges.
I am an estranged father and former Litigant in Person. My own case was high-conflict and I ran a website for some time that collected data from other users that had been involved in high-conflict cases, so the comments I make in this document are based not only on my experience but on the experiences of about 50 or so survey-responders. My comments below refer only to high-conflict cases.
Weak and Unenlightened Judges
If one reads high-conflict cases, they are all more-or-less the same. The ‘template’ runs much like this:
- Mother (usually) denies contact;
- Father applies to the court;
- Court orders contact;
- Mother ignores order;
- This process is repeated over a number of years until the child becomes so estranged from the father and indoctrinated by the mother, and so much time has passed that the child refuses contact;
- If the father has sufficient will and resources, he might get his case to the Court of Appeal, where the judges acknowledge the reality that the father-child relationship is by now beyond repair, and the father leaves the court as just another “tearful and wholly-deserving father”, a phrase that has been used, shamefully, more than once;
- The above process goes on for several years – in several cases a decade or more – all because the judges have failed to get to grips with the issue of contact, and make robust orders that are actually enforced.
Judges are well-familiar with such cases, and the broad concept of a child being deprived of contact with one of its parents, by the other parent – see Mrs Justice Bracewell in V vs V:
“This is neither a unique nor even unusual [my emphasis] case to come before the courts. Unfortunately, the courts at all levels are well accustomed to intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children.”
So, Judges have seen it all before, and are not ignorant, of course, about the issues in these cases, but most are unenlightened and out of touch with issues like ‘parental alienation’ (which although having been described as ‘mainstream’ in the superior courts is routinely dismissed in the lower courts as ‘American twaddle’).
This is what one of my survey respondents said about his expert’s report:
“Amazing report that was dead on accurate: took 19 hours of interviewing and 8 psychometric tests of both parents, child and grandparents on each side. Diagnosis V995.51 (child abuse) and v61.29. Alienator showed in test to get MAXIMUM score on narcissism test. 220 page report from the psychiatrist and….Judge said Parental Alienation was an American thing and the report was waffle!
Lack of Funding and Support for judges
Judges would probably appreciate more bailiffs, tipstaffs and court officers. Perhaps more judges would be more robust if they had a ‘flying squad’ of tipstaffs who could enforce Orders and protect them from angry litigants (regrettably an increasingly common phenomenon, but which is perhaps not completely surprising if – as I argue – judges have lost the respect and confidence of the public).
The Criminal Burden of Proof being required to make committal orders
We already know that 98.8% of the time, judges do not put punish defaulting litigants at all. Perhaps jail is not considered, because the criminal standard of proof is needed.
But I doubt this, for one compelling reason: Punishments like community service require only a civil standard of proof – and these punishments are not used either!
Next, though, we could introduce other punishments that require only the civil standard of proof, like confiscating a parent’s driving licence or passport, as proposed by Suella Braverman MP. But I cannot see that this will help. If judges are already failing to punish with other measures that require only a civil standard of proof, why should they start doing it with new measures?
Suella Braverman has mooted a ‘three strikes’ option – that is, the defaulting party is given two opportunities (generous, I think) to comply before being punished in some way…Perhaps there is something to this. If this party breaches an order, the judge reprimands them. Then, if the parent defaults again, the judge might say ‘look, I really, really mean it this time’. So, the parent is well and truly on notice, and is going to have trouble pleading no mens rea presumably. But this happens already and still recalcitrant parents ignore court orders.
Judges have become a laughing stock, so we arrive at the final possibility…
Judges are weak, feeble windbags
This is an allegation that I feel has some traction. A very cursory examination of the evidence reveals this:
Judges consistently make ineffectual orders, seeking review after review (“I’ll order this and see how it goes in 3 months or 6 months’ time”), or endless adjournments, as HH Judge Wildblood points out, and which we see many times, for example at para 7 of D vs H 2011] EWHC 3521 (Fam) where Hedley J notes:
“There were a considerable number of factual disputes between the parties, and, indeed, criminal proceedings had occurred at one stage, and accordingly, Her Honour Judge Harris, who endeavoured to provide judicial continuity at Watford, fixed a fact-finding hearing for 17th October 2008. For many different reasons, but as a matter of fact, that hearing was adjourned on no less than seven occasions before ultimately being considered by the learned judge on 25th March of 2009 and, in respect that, the judgment which she gave on 24th April 2009. I will say more about that in due course.”
- Certainly, adjournments and delays for ‘review’ are OK once, maybe a couple of times, with short reviews – a month at a time maybe. But time and time and time again? That harms our children. Delay is inimical to justice. That is not only obvious, but is spelt out in the Act;
- When making such orders, judges can affect a ‘monitoring order’, where CAFCASS could report back as to whether the order has been followed by the parties. Judges will routinely express a ‘hope’ that a recalcitrant parent will see sense and facilitate contact and stop hurting their child. They then seem surprised when there is no compliance with their order;
- Judges do not enforce their own orders as already mentioned. This is a very common complaint – a ‘flabby’ judicial response, that sends out a disturbing message to the parties, that it is OK to defy court orders and suborn children into doing so. Only 1.2% of court orders are enforced.
- Judges do not follow precedent.
‘Flabby’ Judicial Responses to Breaches of Court Orders
Sir James Munby, recently-retired President of the Family Division, said this, 15 years ago:
“Other things being equal, swift, efficient, enforcement of existing court orders is surely called for at the first sign of trouble. A flabby judicial response sends a very damaging message to the defaulting parent, who is encouraged to believe that court orders can be ignored with impunity, and potentially also to the child.”
Mrs Justice Parker says this, in re H:
“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.”
Committal to Prison – Why not Jail?
Well, the traditional wisdom has been that putting a recalcitrant parent (usually mother) in jail is not going to help the child.
But putting a murdering mother in prison is not going to help her children. Putting a violent mother in jail is not going to help the children. Perhaps we cannot put any mother in prison for any criminal offence, lest she cries “but what about my kids?!” Mothers are put in jail all the time for all sorts of criminal offences, as are fathers.
Why should there be an exception for breaking court orders that relate to the welfare of children, unless judges consider contempt of court in a child-related matter a somewhat trivial offence?
In addition, putting an offending parent in jail will actually help. This parent is a bully. They are bullying the other parent and they are bullying the child. They are even bossing the judge. Teaching them a lesson is desirable, and necessary. I am not saying that they should go to prison forever and the key thrown away – 24 hours in a cell is a very sobering experience. Like all bullies, parents like this will not stop without a metaphorical punch on the nose.
And if the court is squeamish about committing the offender, there is a range of other options.
The court can order the disobedient parent to pay the other parent compensation for financial losses (S. 11 (O) of the Act):
“If the court is satisfied that—
(a)an individual has failed to comply with [a provision of the child arrangements] order, and
(b)a person falling within subsection (6) has suffered financial loss by reason of the breach,
it may make an order requiring the individual in breach to pay the person compensation in respect of his financial loss.”
This can be ordered for parties that breach court orders, and can be used in conjunction with other orders. (Section 11 (J) of the Act)
The court can order a disobedient litigant to pay a fine.
Normally, in family matters, each side pays its own costs. In high-conflict cases, I would argue that if there is a level of intent from the (usually) mother to ignore orders, a deliberate attempt to disrupt contact and so on, a costs order would be appropriate – that is, that the defaulting parent pays the legal costs ‘thrown away’.
The court can compound punishments – for example, the judge may order a period of imprisonment and a fine, and community service, and compensation, or any permutation of these.
Judges have a range of powers. They simply do not use them.
There is a strong feeling amongst survey-responders that CAFCASS officers are incompetent and do not understand these cases at all. The words of Mrs Justice Parker in re H (2014) ring true (the initial words here are from McFarlane LJ when the case was appealed by the mother):
“Neither the social worker nor the Children’s Guardian supported an immediate change of residence. In justifying her conclusion in favour of an immediate change of residence, the judge explained her reasons for disagreeing with these two professionals as follows:
“72. The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.
73. The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”
One can almost feel Mrs Justice Parker’s frustration bubbling off the page. It seems clear that she considers the officers involved, in that case at least, to be rather unintelligent.
CAFCASS officers need to be educated, but they do know about parental alienation. Their library on the subject is vast, according to former president, Anthony Douglas, but only 2% of CAFCASS officers attend the non-mandatory course on the subject.
The problem in my view is not that CAFCASS officers do not understand the concept of parental alienation, it’s that they do not accept the existence of it – that is, that they believe, like judges, that it is ‘American twaddle’.
So, whilst judges tend to be super-conservative and, I argue, totally out of touch, social workers are woolly-headed liberals who believe that the child’s expressed wishes trump, and should trump, all other considerations. Mrs Justice Parker points out that it is the child’s ascertainable feelings that carry the day, but social workers are ill-equipped to do the ascertaining, and politically hostile to the idea that ‘grown-ups know best’. Strange bedfellows indeed.
Most family lawyers have switched from private law cases to public law cases (where funding is still available).
So, maybe what parents should do is to try and move high-conflict cases from the private to the public arena (S.37 of the Act). It seems, however, that social workers do not recognise abuse unless it is egregious physical abuse, so judges are unlikely to persuade a local authority to take the case on – see HH Judge Stephen Wildblood on this, but perhaps we can take heart from cases like W (A Child)  EWCA Civ 772 where Ryder LJ judged emotional harm as significant and equivalent to other kinds of abuse, but only…on the facts of that particular case.
But Legal Aid is a sideshow and a political football. All of the injustices we see today were present long before Legal Aid was abolished. Certainly, it would not do any harm at all for it to be reinstated, but that bell has been rung and is not going to be ‘unrung’ any time soon.
Are parties really better off when represented by lawyers? There is scant evidence of that in the case law.
Three cases stick out in my mind, having reviewed the case law. Three cases where the judge was decisive, robust, effective. They are V vs V (Mrs Justice Bracewell, now deceased), re H (Mrs Justice Parker) and re B (2017) adjudicated by HH Judge Gorden-Saker. All three judges were women.
This speaks to a point I have already made about outmoded paradigms. A female judge is, by definition, successful. It is therefore more likely that a judge like this will not accept a ‘1950’s paradigm that women belong in the home, with children. A relatively liberal-progressive approach might also be more likely to be shared by judges from different ethnic backgrounds, and by younger judges.
But our judges are almost all white, middle-class men. This type of individual is always going to be more likely to conserve existing hierarchies and indeed quite likely to hanker after days gone by, when the world made sense to them. But not only can one not wind the clock back, one cannot stand still either.
Transparency and Precedent
More transparency is needed. Every family court decision must be reported. This will keep the judges honest and will help restore confidence in the legal system.
Of course, lower-court judges must follow the rulings of the Court of Appeal. Now, it will be argued that “well, all children cases are unique – you cannot have a one-size fits all type of family justice”. This response is both glib and wrong.
Obviously in order to be bound by a precedent, one’s case has to be on ‘all fours’ with the previous case. But although all children are different, all high-conflict cases are, in essence, the same, as set out in my template at the beginning of this response.
There is an old saying: “If you can’t argue the facts, argue the law. And if you can’t do that, shout louder than your opponent!” Of course, the law is the same in all cases. Everything is governed by the Children Act 1989, and all subsequent Acts that have added to or amended the law have been (rather usefully) subsumed into the main body of the Act.
And, I would argue, the facts of these cases, whilst different are not so different. They all involve recalcitrant, contumacious, disobedient litigants who simply ignore orders and fail to turn up for hearings – with nary a (meaningful) murmur from the judge. All high-conflict cases involve false allegations against the party applying for contact. So much so, indeed, that my survey reveals that judges are not interested in such allegations precisely because they know them to be false. Those allegations are invariably that the father has physically or sexually abused the child, or, if a mother, that she is promiscuous or mentally unstable. It’s as if there is a high-conflict ‘playbook’ that everyone has read except the parent who is denied contact. He learns the rules a decade later, though, sure enough.
Transparency is the key. If all lower-court cases (most especially District Judge cases and Magistrates court decisions) were publicised, there would, I am confident, be an outcry. Why, we would ask, are these case mishandled time and time again? It’s not because the judiciary don’t ‘get it’ – it seems to be simply that they do not want to get it. Lower-court justice is pretty much ‘make it up as you go’. Our children deserve consistency and predictability.
Separation of Powers
As I understand the position, the Minister for Justice is now the same person as the Lord Chancellor. I don’t remember there being a big fuss about this. But surely this strikes at the heart of our judicial system. Judges must be, and be seen to be, crow-bar-separated from the Executive and the Legislature, assuming that we wish to avoid a charge of running a totalitarian regime.
High-Conflict -vs- Low-Conflict Cases
Whilst there are certain common areas between these types of case, high-conflict cases need a completely different approach.
The reason is simple. In low-conflict cases, there is still a chance that matters can be resolved relatively amicably, which, to be trite, is in everyone’s best interests. So perhaps ‘gently does it’ is the right approach.
In high-conflict cases, however, there is no chance of that. None at all. So ‘kitchen table’ methods like mediation are a waste of everyone’s time (this is clear from our survey results).
How do we tell the difference? Well, I am advocating that all cases involving children be triaged by an experienced family judge and that they then take different judicial paths as a result of this triaging procedure. The low-conflict cases can be referred to mediation, freeing up judicial time for high-conflict cases, which must be dealt with energetically, and with robustness and exactitude, as I have already argued.
Conclusion and Recommendations
- Judges must be guided (others may know the means for so doing) to be robust, and to enforce their own orders;
- All children cases to be triaged;
- All children cases to be reported and available for scrutiny;
- Judges, CAFCASS and society at large to be educated as to changing societo-cultural gender paradigms;
- More judicial diversity;
Of these, number 1 is the most important. If cases are dealt with robustly, they will not keep popping up to haunt the judiciary, Banquo-like, time and again. In essence, ‘a stitch in time saves nine’. So, judicial robustness not only costs nothing, it will save money.
July 5th 2019