There are many ways this failing system can and should be reformed. Some of my suggestions appear below:
Make PA a Criminal Offence
If PA were a criminal offence, as it is in some countries, there would, I’m sure be less of it (as long as it were enforced, of course)
Make PA a Tort
A ‘tort’ is a ‘wrong’. If someone is guilty of having committed a tort, you can sue them. Common examples might be suing a car driver for running you over, suing a newspaper for defamation, suing a business partner for breach of contract and so on. In an action to remedy a tortious act, the court usually awards compensation.
Currently there is no tort of PA. If there were, we could classify it in the same way as we classify actions for False Imprisonment, or wrongful arrest/detention. This is important, because those kinds of cases can attract American-style damages – not just to compensate you, but we are also looking at possible exemplary damages and punitive damages (respectively to make an example of the other party, and to punish him/her). Would parents alienate if they knew they might be sued for £millions?
Adjustments to the Children Act 1989
Let’s start off by saying that the Children Act 1989 is an excellent piece of legislation. Helpfully, it pulls together all other Statutes that affect children, so we really need only to look in one place.
There are, however, some problems – things that could be improved…
I advocate a rebuttable presumption that when couples separate, children’s time should be split 50-50 between the parents.
The Conservative party had an opportunity to effect this, with the passing of the Children and Families Act 2014 which amended S1 (2(2b) of the Act. The ’50-50’ rule could have been inserted into the Act, but instead we got a watered down version, saying that absent parents should have “involvement of some kind.. either direct or indirect, but not any particular division of a child’s time”.
The argument, it seems, is that this is not a matter of parents’ rights, but of the child’s welfare.
Of course, the Paramountcy Principle (that a child’s welfare needs ‘trump’ all other considerations) should remain to the fore – even to the detriment of equality between parents.
But the key word here is REBUTTABLE.
Rebuttable simply means that parenting should be 50-50 as a default situation. That can, of course, be overridden if doing so would be in the child’s best interests, and that is a matter for the judge.
Perhaps we should follow Finland’s example…
The big point here is that the Paramountcy Principle has nothing to fear.
In financial matters, the Supreme Court introduced, in effect, a ‘rebuttable presumption’ that each party gets half of the matrimonial assets, although the Court was at pains to point out that its decision was about avoiding gender-bias as to the roles of men and women in marriage, rather than the issue of equal division of assets as such (White vs White).
Nonetheless, if we value our children as much as we value our cash, a rebuttable presumption of equal-time parenting must be a starting point.
A 50-50 approach is gaining ground in the US too. The State of Kentucky has introduced it with resounding success.
Delay and the ‘No Order’ Principle
Take a look at these two bits of the Act:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay[My emphasis] in determining the question is likely to prejudice the welfare of the child.” (S1(2))
And, the second bit:
“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.[My emphasis]” (S1(5))
There is an obvious tension here isn’t there?
Whilst S 1(2) tells a judge to ‘get on with it’, S 1(5) tells him/her ‘if in doubt, do now’t’.
The problem, in my view is with S 1(5). I am not concerned with general matters involving children, but only with cases involving PA. What needs to be recognised is that
PA CASES ARE DIFFERENT TO NORMAL CASES INVOLVING CHILDREN
The reason for this is that, whilst it may be the case (and I am not convinced here) that doing nothing is the right default approach in some cases involving children, it is certainly not the right approach in dealing with PA cases.
This is for the simple reason that delay gives the alienation a chance to establish itself and for the estrangement of a child from a parent to become permanent.
Delay is inimical to justice in all legal cases, I argue, but for PA cases delay is particularly pernicious, because, in PA cases the victims of this delay are children.
What strikes me forcefully is that it is possible to explain PA to any reasonably intelligent layperson in about 10 minutes, yet it takes our courts 10 years to sort it out, if they sort it out at all. The ‘no order’ principle is a chief cause of that delay. It simply gives judges an excuse to sit on their hands.
I call for the scrapping of the ‘no order’ principle.
It goes without saying that training in PA will be helpful for everyone, but my view is that it is not as much of an issue as you might think.
Training for Judges
UKAP is of the view that UK judges are well-familiar with the idea of PA. They see it all the time. They probably don’t like labels and psychological terminology, and feel that they are perfectly able to spot PA without any help (as long as they don’t have to use the term ‘PA’).
The problem is not with judges being ignorant. The problem is with judges being effective.
As far as training is concerned, most judges could do with reading, and re-reading Mrs Justice Parker’s judgement in re H. The simple point is that judges do not have to follow slavishly what CAFCASS say. Judges are, or should be, the ones with the power, not CAFCASS, particularly when CAFCASS is burdened with the problems it currently has.
UKAP feels, too, that the tension in the Act between S 1(2) and S1(5) should be pointed out. A judge should be looking to do something as required by S 1(2), not sit on his hands, as seems to be recommended by S1(5). Also, all of the cases indicate that a judge should get on with it, and not sit idly by whilst the relationship between a child and a parent disintegrates.
In conclusion, judges don’t need much training on the pathology.
They need training on how to judge! Perhaps Mrs Justice Parker could host a few seminars..
Training for CAFCASS
Training courses for CAFCASS are already available. It’s just that (unlike the courses telling them how to claim their expenses!) only 2% of CAFCASS officers go! Training in PA must be mandatory.
It is clear from Anthony Douglas’s talk at FNF this year that there are plentiful resources for CAFCASS officers. They have a huge library. Perhaps their officers could read a few books!
The problem, though, with CAFCASS is not so much ignorance (though this is rife) but with attitude. CAFCASS officers simply do not believe that there is such a thing as PA. It looked like they might be getting there earlier this year, but within a few weeks they were obviously back to their old ways.
Most CAFCASS officers believe that a child is always better off with its mother. It would not be difficult to make a case that CAFCASS are institutionally gender-biased using, for example, the fact that they consult only women’s groups on some important issues.
In the 21st century, in a modern western democracy, surely we can re-jig the paradigm. Fathers are just as good at looking after children as mothers, and, in many cases, better. Some of this problem could be addressed with a presumption of co-parenting.
It would help if CAFCASS divided their officers into those specialising in public law and those specialising in private law cases. Public law cases (where the state intervenes to protect a child that has been physically or sexually abused) give social workers a particular slant on the world – they see some terrible things – which does not help an assessment of a private law case. Although PA is just as serious as these other kinds of abuse, it is simply not seen that way – in essence, CAFCASS are not trained to see emotional/psychological scars and bruises.
Training for Lawyers
Lawyers here means solicitors, barristers and Legal Executives. We have already highlighted the appalling level of ignorance amongst lawyers about PA. As with CAFCASS officers, UKAP recommends a compulsory PA training module in the CPD (Continuing Professional Development) of all family lawyers. Use our questionnaire when talking to lawyers.
Training for McKenzie Friends
McKenzie friends are not lawyers and are not obliged to undertake Continuing Professional Development. Maybe they should be.
The use of McKenzie friends has increased sharply over recent years, as has representation ‘pro se’ (an American (well, Latin)) term meaning Litigant in Person (‘LIP’). Both phenomena are due to the cutbacks in Legal Aid, introduced by the Tories, but continued under Labour, Coalition and Tory administrations since. So, because we can’t get Legal Aid to pay for lawyers (and that is not going to change with any political party probably) we have to go DIY (being a LIP) or use a McKenzie friend.
McKenzie friends do not represent us. They are there merely to help us present our own cases and offer suggestions and advice. The court can, though, allow McKenzie friends to speak on our behalf, but tend not to.
UKAP has no experience with, or affiliations to, any McKenzie friends. All we can say is the obvious thing, that there will doubtless be good and bad McKenzie friends, and you should take care, and make your own enquires. But, as with lawyers, ask the hard questions.