Family Justice Narratives : No. 6

This is the sixth of the Family Justice Narratives. You can find out what the Family Justice Narratives are all about and how to get involved here. This narrative is in the format of an email addressed to me, and comes from Brian, a social worker.

NARRATIVE NO 5 : SOCIAL WORK PERSPECTIVE

Familoo,

Started reading your blog with interest and admire the way you seem to find incredible amounts of time and patience to debate with and answer contributors, especially the distressed and unhappy fathers who can be abusive and emotional. Dialogue is important but sometimes attitudes are so entrenched dialogue gets us nowhere. I’d just like to share my experience of working with children and families in the family court setting. I’ve no axe to grind other than a professional interest in truth and objectivity in so far as it can be achieved and in balancing some of what sometimes appears in your blog with my own perspective.

I’ve been in social work practice in the family courts for over 30 years as a practitioner, manager and also an experienced mediator.  Some believe that people who do my work are not properly trained. I don’t know what training they believe is appropriate, but to hopefully satisfy them, I’m a registered social worker, have a degree in social work, also hold the professional qualification in social work, another qualification in psychotherapy, another in management, a MSc in conflict resolution and mediation and was trained in mediation at the Institute of Family Therapy. During my time I’ve worked with people abusing drugs and alcohol, victims and perpetrators of domestic violence and had some responsibility for a sex offender treatment programme in a prison, as well as working with possibly thousands of families passing through the family courts.

There is no doubt in my mind that fathers and mothers are equally important to their children and that parents are the right people to make decisions about their children. When a family breaks up, most parents sort parenting matters out themselves, though of course it must often be a sad business. Those who can’t do this, a relatively small proportion, turn to the family courts for help. When they do so, they are typically encouraged to either seek mediation or utilise the services of a family court adviser at first directions who will assist them in trying to reach agreement. Approximately 75% of those attending court take advantage of this and the matter often ends on that day with a consent order for the majority. These parents are not forced into an agreement but appreciate that they should be the decision-makers, sometimes see that their options are somewhat limited by their circumstances and may need to compromise to reach an agreement that is workable for them and their children. This is not a perfect service, time is short so meetings can be rushed, the views of children often cannot be taken into account (though there are schemes that involve children) and referral to out of court mediation involves some delay and will involve costs that some parents can’t afford. But it’s a largely successful attempt to deflect parents from damaging adversarial litigation to make their own decisions for their children. You could call it a satisfactory quick fix. There is of course the option of further mediation should they so choose later on.

Broadly, there are two groups not able to go down that dispute resolution/mediation path, some because it is felt their children or one party would be put at risk of harm – they need detailed assessments. The first group includes cases where there is evidence of neglect or abuse of children; domestic violence; substance abuse; psychiatric illness etc. The other group (approximately 10% of applicants in my experience) are mostly highly conflicted and unable to mediate as their hostility is too entrenched. This is the group that courts and organisations like Cafcass have most difficulty helping. Each party is highly emotional, cannot appreciate the perspective of the other and appear incapable of negotiating. This is what some researchers have referred to as ‘the selfishness of conflict’. Although parents in this group may love their children, they are preoccupied with hatred, hurt, desire for revenge and their rights. One parent may be more resistant and entrenched than the other, but usually both contribute to the level of hostility they are experiencing. Children almost always love both their parents, even when they are abused and are very resilient and loyal. But great emotional damage can be done to them by the long-standing and intense conflict of such parents (courts sometimes call it ‘implacable hostility’).  These are the families where for various reasons, including the deliberate programming of the children by one parent to turn them against the other (by the mother or the father), children can align themselves with one parent to varying degrees or can be completely irrationally alienated from one parent and even from all the extended relatives on that side of their family (parental alienation).  When this has been done it is hard to undo and experts do not always agree on the best way to do it, but wherever possible, continuing contact with the ‘target’ parent is essential.

There is no doubt in my mind that a child’s relationship with each parent is precious and should be maintained as much as possible after parents separate.  I believe in shared parenting (though like you, I put a qualitative interpretation on that rather than a quantitative one – though I do take the point that a degree of quantity is necessary to allow quality, though quantity alone does not mean contact is of any qualitative benefit to the child) and I believe absolutely that a child thrives best when positive and caring relationships are maintained with both parents after family breakup. I am also in favour of shared residence where that is possible and workable and have recommended it to courts when giving advice.

I have met individual mothers and representatives of mother’s groups and domestic violence workers, who believe absolutely that the courts are biased heavily in favour of fathers and thereby put many children at risk; I have also met fathers and representatives of father’s groups, who equally, though rather more loudly, believe that courts always favour mothers and automatically accept any allegation mothers may make without evidence. My experience is that each of these perspectives is partial. I have not found any widespread bias against parents of either gender or courts that blindly accept allegations without evidence. It seems to me this is also supported by the research. That is not to say there can’t be individual cases of bias and some injustice. The biggest faults in the family justice system that I experience are: delay, which is appalling and abusive of children (and unfair to parents); lack of judicial continuity; the loss of legal aid for family proceedings, because many parents do not understand procedures and have difficulty presenting their case and asking questions – thus they may lose their right to a fair hearing, it also slows proceedings down adding to delay; changes in Cafcass practice which has moved away from actually working with children and parents to resolve their conflicts towards the production of written risk assessments, partly based on brief telephone discussions, which I regard as inadequate and sometimes unfair to parents (I think fathers groups could rightly and justly attack this practice and the reduction of dispute resolution opportunities at court which can only lead to more unresolved conflict, increased risk of litigation and longer gaps in contact). I share some of the criticisms of Cafcass made by others and want to see a new service set up that has learnt from past mistakes.

In terms of outcomes, I won’t quote statistics, but most applications by fathers are seeking contact, or increased contact with their children and they mostly get what they are asking for, or an arrangement close to it. A small but growing number apply for shared residence. Research and I think common sense, suggests that a 50/50 or thereabouts type of parenting arrangement needs a lot of cooperation between parents as well as: the availability of two homes with suitable accommodation for children within a reasonable distance of each other; parents with working arrangements that allow for the collection and delivery of children; and of sufficient means to afford or provide the necessary transport etc. Many do not have these resources and for practical reasons can’t provide such an arrangement for their children. Others are in such high levels of conflict that they’d never be able to cooperate sufficiently and it could be a living hell for their children.  Most do not seek this kind of arrangement. One leading British researcher said to me that in her view, shared residence is unsuitable for most parents who go to court because their conflict levels are too high. These are the reasons, in my view, why shared residence is not more common.

In my experience of those families who go to court, the main cause of children not being able to spend the optimum time with each parent after family breakdown is the level of hostility and conflict between their parents and the various difficulties concerning violence and substance abuse etc. However painful it is for them to accept, parents are responsible for these situations, not courts. I meet so many children who are weary and embarrassed by their parents’ arguments and ask for my help in begging their parents to stop fighting and so many parents who will not listen to their own children who so often have reasonable and helpful views about the decisions that will affect them. The courts and social workers and psychiatric/psychological experts can only do so much to try and help, parents have to do the rest.

Brian
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44 thoughts on “Family Justice Narratives : No. 6

  1. Northern Lights

    My experience of Social Workers is borne out by comments in your post; that they appear to be pathologically incapable of distinguishing between the concept of shared care and an order for Shared Residence. You do not appear to even understand what a SRO is; that it has nothing to do with 50/50; that it may be appropriate where the parents live in different countries; that a high level of conflict may even be grounds for making the order.
    I could, as I’ve frequently done with any number of your equally ignorant and misinformed colleagues, point you to the relevant case law but I suspect it would be a waste of time.
    If people like you insist on making recommendations to the court as to residence, try and get to grips with the basic principles, at least. The fact that you have been involved in the system for so many years without even attempting to understand (or wilfully ignoring)
    simple principles is shocking.
    They aren’t rocket science- even for a Social Worker.

    • Northern Lights – can you help us with where the two concepts have been confused? I don’t see it myself – there is self-evidently a lot of overlap between shared residence orders and shared care, notwithstanding the distinctions between them. I don’t see the comments as necessarily equating SROs with 50:50 only, although that is often the context in which they are sought.
      Lucy

  2. Northern Lights

    Then I must apologise to you for my ignorance and look forward to my enlightenment as I try to keep an open mind and am willing to learn. But, excuse me for pointing out that you show an obviously strong prejudice against social workers. When asked to make any kind of judgement in my work, I try not to do it until I’ve met the children, parents (ideally together and apart), discussed the contested issues with them and considered any external evidence from independent organisations or experts. This also helps me be more circumspect about judging people in my private life. It seems unwise, unhelpful and not very objective to judge someone by their job title (admittedly I’ve no friends who are bankers just now) and a sentence or two they may have written. Given your feelings, I advise you to avoid social workers like the plague. And if it helps, I’d personally shudder at the thought of putting the future of any children of mine in the hands of a court, social worker or lawyer, if I could possibly avoid it, however skilled, well-intentioned and however knowledgeable on case law they might be (and many are all these things). But, I have other, perhaps less offensive titles – is mediator or journalist any better – I try to be versatile?

    However, there’s no need to refer me to case law, I’m aware of the case law on this issue and have a filing cabinet of case law and research. My role is not to go quoting case law at people, there are lawyers, judges and the well-informed such as yourself, to do that, my bit is to help parents sort matters out themselves or failing that advise the court on what may be in the best interests of their children, given the parents’ circumstances, the wishes of the children (allowing for age, maturity, alignment/alienation etc etc) and given what one or both parents are actually proposing. It’s not an exact science (unlike rocket science) so I try to be sensible rather than clever, I want the parents to be clever for their children. If they can find a positive way forward then what I know or don’t know really doesn’t matter at all.

    Of course shared residence does not relate directly to 50/50 parenting – did I say it did? But as Familoo says, that is how many parents view it and why I mentioned it. Technically it may be feasible (though rather unlikely) for parents in different countries to make shared residence work, if you have an example of this from case law, please refer me to it, I’d be genuinely interested. Generally, my view is that each case for SR should be viewed on its merits. And yes, courts have made shared residence orders in high conflict cases, but I think if you know anything at all about the subject, you will know that because the court makes an order, that does not mean the order will actually work – that essentially is down to the parents (and not simply down to enforcement). It seems to me and there is some support for it in the research on both sides of the Atlantic, that when parents are sufficiently cooperative and reinforcing of each other’s roles, SR involving significant amounts of time can work really well, but when they don’t, as said before, it can be a terrible burden for the children. Successful SR is generally contraindicated by high conflict. And my experience suggests that if parents want to fight, they will fight whatever type of court order is made and no kind of order will stop them. You really can’t remove ‘parental responsibility’ from these issues and blame courts and social workers for everything. Ahhh… but that’s another concept that you might like to clarify!

    I’m sorry, but for me this whole subject is more about humanity and parenthood than about rules, orders and case law.

  3. Northern Lights

    Lucy,

    This is the paragraph below where the two issues are clearly being conflated and where the lack of the obvious co-operation for effective co-parenting is being cited as a reason against a SRO being made.
    I’d also like to see these statistics and why the senior judiciary have got it wrong while this anonymous researcher has got it right.
    You know the canon of case law on SR without me quoting it and every one of these spurious reasons for not making the order has been refuted in the COA- time and time again.

    “A small but growing number apply for shared residence. Research and I think common sense, suggests that a 50/50 or thereabouts type of parenting arrangement needs a lot of cooperation between parents as well as: the availability of two homes with suitable accommodation for children within a reasonable distance of each other; parents with working arrangements that allow for the collection and delivery of children; and of sufficient means to afford or provide the necessary transport etc. Many do not have these resources and for practical reasons can’t provide such an arrangement for their children. Others are in such high levels of conflict that they’d never be able to cooperate sufficiently and it could be a living hell for their children. Most do not seek this kind of arrangement. One leading British researcher said to me that in her view, shared residence is unsuitable for most parents who go to court because their conflict levels are too high. These are the reasons, in my view, why shared residence is not more common.”

    • Northern Lights,
      A lack of cooperation may not be a bar to a shared residence order being made but it doesn’t necessarily help – it depends on the case doesn’t it? In some cases it will (in accordance with authority) send the message that both parents are of equal importance and each must play ball, but in others it will be unlikely to have that effect and may make things worse. It’s fact sensitive isn’t it?

  4. If there were an order for Shared Residence, there would have to be an element of shared care involved in that. I should know as I have one.

    However the distinction is that in a Residence/Contact arrangement currently the RP has alot of power and can wield it to the detriment of the child’ relationship with the NRP and consequently to the welfare of the child. There are also certain decisions RP can make without having to have consent of NRP, e.g. travel – not to mention RP can potentially abusively ignore even the things she has to get NRP’s consent about with little legal ramification.

    At first I felt northern lights was a bit harsh in his response but I can see how he would get so upset because this is a very silly thing to get confused about. Shared Residence does balance the power and if RP habitually behaves unilaterally she can lose residence as the child has another perfectly capable primary carer.

    The article above looks good, its well presented, author tries to appear to also try to achieve some balance – except for a few bits here an there referring to research. Ah. A common little trick that the SS and Cafcass like to use…failing to cite said research but does nicely bolster their own opinions since people like it when there is “research”. In reference to education/qualifications – well thats just the problem. A degree in social work is not really any form of expert degree at all. In fact I was quite bemused to see SS attempting to compare to the other experts in my case – and literally having her reports thrown out of court after lying, making false allegations and revealing her true colours. They were even conflicted with previous SS reports filed before the separation – she disagreed with her own department now that the matter was in court. She was as it happens a single mum of an 11 year old boy, who called her during our interview to let her know he was hungry and she told him to sort himself out with something as she was at work. Coincidence much that she sided with the mother?

    SS and Cafcass are not impartial. They are not experts of anything really. Yet they wield power as experts in court…its a bit shocking…especially when I was doing a better job of parenting our son than the SS lady was herself.

    I am not angry at her any more than I am angry at an annoying fly, as I had decent representation. But many men cant afford it and I feel for them. Make a social work degree something other than a drop out degree and perhaps it might have some weight in court against a seasoned barrister. Have it as a branch specialisation as part of a psychology degree – last i checked psychotherapists still work for the NHS? why not get real experts more involved with the system and fewer people who probably do need therapy themselves actually conducting assessments?

    Oh and i love the – its the parents who need to take responsibility – sooo few of them go to court – do we need to bother about them? – these high conflict cases? Any thought that the reason so many men dont go to court is because they dont have the money to file applications which wont get them a decent relationship with their child and so they just give up? I guess we should discard them as well. Parents do need to take responsibility – but SS need to realise when someone is committing psychological, financial and child abuse to prevent a relationship with the other parent – is perhaps not the best person to have residence? As opposed to someone fighting tooth and nail to avoid the outcome of such abuse being that they have no relationship with their child. This is what the laws are written for – for such a case. If there was no conflict – why would we need SS, CAFCASS and the courts??? SRO’s can prevent abusive situations because of the protective dynamics involved. It can seriously prevent parental alienation and manipulation to a great degree – it gives BOTH PARENTS A RIGHT TO PROTECT THEIR CHILD FROM HARM and does not give potentially abusive powers to one of them. Maybe then the conflicts would not perpetuate so.

    Its SS’s and CAFCASS’s fault that the system does not work. Its SS and CAFCASS filing false, impartial and purely unintelligent drivel as evidence and hurting so many children. Do you know what happened to the SS who lied in my case? um…nothing. What recourse did i have legally? nothing. She just floated away onwards to abuse another child.

    Apologies for getting emotional. But I really dont like people blaming others for their own failures. Northern Lights is absolutely spot on. Pathetic is an apt description.

    • I take the point that Northern Lights makes about the slight slippage at the end of the section he quotes, but that does rather take it out of context. Earlier on in the piece Brian says that: “I believe in shared parenting (though like you, I put a qualitative interpretation on that rather than a quantitative one – though I do take the point that a degree of quantity is necessary to allow quality, though quantity alone does not mean contact is of any qualitative benefit to the child) and I believe absolutely that a child thrives best when positive and caring relationships are maintained with both parents after family breakup. I am also in favour of shared residence where that is possible and workable and have recommended it to courts when giving advice.”

      In that passage he clearly treats shared parenting and shared residence separately and identifies them as distinct. I don’t read the article as being anti shared parenting OR shared residence, although it is not mad keen on the 50:50 type of shared residence that in my experience is quite commonly sought – and in those cases it can become more like a trophy showing a parent has “won” than the equalising or levelling instrument it ought to be (status wise not time wise I mean).

      I don’t view SROs as the panacea and cure all that singledad1 suggests they are – sadly a determined alienating parent will not be stopped by an SRO. A court order is a blunt tool with which to change behaviour and belief. A court order cannot make a crap parent a good parent.

      I take on board singledad1′s point about the difficulties for many parents in accessing the court / representation – he says dads, I say parents, because whatever the position may have been it will be parents of both sexes who are disadvantaged by the forthcoming removal of legal aid.

      And singledad1, your case may not have been a case where both parents were busy cranking up conflict – but there are many such cases, where both parents are significantly invested in the conflict and cannot see the wood for the trees, even though they are sure they are acting in the best interests of the child (notwithstanding that one is often worse than the other). There are cases where one parent is simply doing their best in the face of an unreasonable or immovable other parent (and I get VERY frustrated when CAFCASS officers tell me my client is responsible for conflict just like the other parent when it is plain they are simply placed in an impossible position and unable to do right or to resolve the situation because the other parent is so intransigent), but they aren’t the whole picture.

  5. PS I realise I used “she” for RP above – this was not my intention – i meant “they” – there is gender bias towards mothers in the courts (no doubt about that)but both abusers and good parents come in both genders.

    And those that argue against the prevalence of gender bias – case law has been relying on tender years doctrine and Poel (from the 70s) and Payne almost exclusively until very recently – the combination of which demonstrates a legal bias against men. I mean the chidren’s act is 23 years old! Could do with some updating! Society has moved on since then!

    • Tender years doctrine? Really? Never relied on in any hearing I’ve done in ten years. Of course society is full of gender bias and we are all responsible for pigeonholing either consciously or subconsciously. I wouldn’t expect the judiciary / legal system to be an island of perfection in an imperfect society, but I do think that the approach to men / women is reasonably even handed, excepting odd instances of inappropriateness – which of course occur in many spheres of life. Part of the responsibility of those involved in the system is to challenge lazy gender based perceptions or assumptions and I think more of us do that more often as time goes on. I would also note that there are ways in which social norms around gender disadvantage women in family cases – mothers who are seen to have “abandoned” their children or who have been unfit to care for them through drink or drugs can sometimes get a terribly hard time from both ex partners and professionals way out of sync with the reverse scenario of so-called absent / deadbeat dads (note that – men are merely absent, women abandon).

  6. Shared parenting and conflict
    I’ve often heard social workers and others employed by the court process say that shared care doesn’t work if there is conflict.
    However in my experience it’s the parent who doesn’t want shared care to happen who uses this ‘reasoning’ and also often creates conflict or issues as a way to prevent shared care.
    The right sort of parenting plan that enables parents to ‘parallel’ parent without interaction can be very successful.
    I’ve suggested several times in mediation when the mother’s side has pushed this view that if conflict should keep being apparent after a shared care plan has been put in place then full care could go to the father.

  7. My case involved parental kidnapping of a child, a history of abuse against me, police records against her, documented mental health problems, wrongful removal, a leave to remove application, 3 psychologists and a pathetic social worker – and because of the enormous fear of “payne” and the social workers initial reports – i was told the best I could expect was shared residence. Social worker was abysmal – previous social worker and GP listed me as the primary carer. Since then, other parent has constantly invested in trying to break the SRO and make it look like my fault, refuses to work, gets legal aid, continues to conduct unilateral acts and persistently continues false allegations. Continues legal action as well – attempts to control – but i dont bitch about it because parenting is not easy. I really really try to think up new ways to reach agreements, I compromise massively, I am even helpful whenever she asks for favours. But she is ever determined to leave this country with my child. You are right – the law is a blunt instrument.

    I have navigated the world outside of the law in trying to find someone to help me from preventing a case being built against me – that I am a bad parent. And people do help. School, doctors, dentists – they help make agreements happen. I did not believe it would/could work – but it does! I have made myself calm down – and my son seems happy for now. I believe if I work at it enough there can be no “acceptable” reason for ex to disagree – but just because 2 people dont agree about which school – there are applications one can file about major things. Its not a reason SRO should NOT stand. If anything it should evolve depending on the parents behaviour. And it does – with variations.

    I was called angry by the Social worker when I was constantly being accused of being a child abuser. I know how bad the system can be. What I am saying is that an SRO is a starting point to negotiate. It needs more teeth – more enforcement – people rarely breach SROs because they are too scared. Even extremely high conflict people. It forces parents to face up and start negotiating or risk what they have worked so hard to achieve. Let another 50 transfer of residences to the non abusive /co operative parent happen in case law – document it – and you will have a change in attitude. You do need to scare some people into acting like adults. Giving them what they want is always bad for the child in the long run.

    I know its a personal account – but hopefully it can show you the inner workings rather than the “theory” behind it. In time – when ex has exhausted ALL avenues that are legal – which she will do as she is very intelligent and well funded – she is left with committing an illegal act or to co-operate. Then perhaps she will make a decision that is actually in our child’s best interest (hopefully)

    If the courts worked then why did this case have to go to appeal?

    http://www.telegraph.co.uk/news/uknews/law-and-order/9424060/Fathers-rights-breached-by-mother-too-upset-to-let-him-see-children.html

    What did the social workers and psychologist do in this case? This is how to deal with implacably hostile parents. They need to grow up and if they dont they should be made to. Stealing is a childish act. People who get caught get punished. They learn not to do it again (mostly) or get pushed out of society.

    • Thanks for your account singledad1. Sounds tough. I can see why you would want and benefit from an SRO in those circumstances.

      As for the appeal you link to – self evidently it had to go to appeal because the judge was plainly wrong. That’s what the system is for – individual judges are not perfect and the appellate system is designed to correct things when they go wrong.

      Part of the difficulty for judges is that they are tasked with making a decision which is in the best interests of THIS CHILD – whilst I agree that there needs to be a culture shift, and understand why you advocate that a firmer judicial approach could be part of a push in that direction, the court has to put social change secondary to what will be better for this child in this case. There is a real tension there. Which is not to say they shouldn’t do it. Just that its tough.

  8. Northern Lights

    Brian the social worker,

    You want an example of a SRO where the parents live in different jurisdictions? It’s Re F (Hampshire and Edinburgh) There is also Re. D where Hedley J made a SRO between the UK and USA.
    I’m surprised that neither made it into that apparently extensive collection of case law you claim to have.
    Your willing to learn, are you? We’ve had the CA for some 23 years and you haven’t even grasped the basics of it so I see little point in trying to enlighten you.
    Don’t apologise for your ignorance; stop presuming to make recommendations to the court until you’ve addressed it.

  9. Singledad1

    You describe a bad situation and seem like a good parent who needs the teeth a SRO can give you. All credit to you. Yes, punishment and enforcement has its place, but sadly, people aren’t always logical or reasonable. Some simply won’t grow up. Punishment doesn’t change some folk and might make things worse for the child, but where feasible I’d support a transfer of residence.

    My views on shared parenting and shared residence aren’t as black and white as they’re being seen. Preconceived views on anything don’t help and we have to struggle with our own biases. Entrenched conflict is a factor that suggests shared residence may not be in a child’s interests, it’s not the only factor in the melting pot and each situation should be judged on its merits. Not all involve the kind of power struggle that might be eased with a SRO, but some do. Other kinds of conflict could be worsened by it. It really is about what order in a particular situation is most likely to reduce the aggro and help a child get or maintain a healthy, decent relationship with both parents. Sometimes the answer is fairly obvious, other times it’s not and there’s disagreement – it’s not an exact science. Those who need to make the decision or give advice can only do their best and sadly mistakes can be made, hence appeals.

    Parents do get angry and frustrated with each other and with the system. Anger’s a healthy and reasonable response to a crap situation. I wouldn’t take against someone because they’re angry. But it can get out of hand. I guess the rule should be don’t let the anger get in the way of sorting out the problem as best you can and getting what help you need. Easily said, but as you say, not easy being a parent.

    I don’t like to quote case law or research much in discussion with people – actually they tend to do it with me and I’m open-minded about it. But if I quote research in a written court assessment, I always give the references and take the research paper or whatever with me if I’m giving evidence. If a parent wants a copy of my source in advance I’ll send it to them. They have a right to it.

    Look out for this book, it might be of use to you: ‘Divorce Poison. How to Protect Your Family from Bad-mouthing and Brainwashing’ Dr Richard Warshak (2010)

  10. Northern Lights

    And for the record, I am not prejudiced against S.W’s; I have nothing but admiration for the brave souls who work on the front line, protecting the most vulnerable children in society.
    What I am thoroughly weary of is those who make recommendations as to court orders in private law proceedings based on their own prejudiced view of parenting.
    How many times do judges and lawyers have to point out the obvious to you in relation to SRO’s: “Yes I know they can’t agree; if they could they wouldn’t be here in the first place, would they?” How many times have less robust judges been persuaded by you to try and settle contact/residence disputes by making orders that confer a sense of control and ownership on one parent and second class status on the other?

    Lucy,

    I don’t regard SRO’s as a panacea of any sort; I’m just of the view that they should be the starting point if an order has to be made on residence. Nick Mostyn may have been accused of “going too far” in his comments in Re AR but he was bang on the money in my view.

  11. Brian seems to be talking about a select number of cases here, where, yes, parents are responsible for their predicament.

    In the majority of cases I have seen, however, it is not the parents in the plural who are the problem, but one parent (usually the “abusive and emotional” mother) plus the courts that are run by aging men who are not only so thoroughly patriarchal in their attitudes that they cannot fathom the idea of employing punitive measures against any woman, but also recognizing that litigation is very profitable indeed.

  12. Brian is correct that punishment of the sort offered to offenders is usually quite unimaginative and ineffective. It’s a sorry situation.

    However, a mother jailed by a judge for 2 weeks for a breach of contact order or knowingly deceiving the court about a father’s character would work wonders, and would likely put the fear into her to the point where she might actually begin to cooperate and stop wasting taxpayers’ money and public servants’ time.

    The reason the latter does not happen is because letting litigation go on ad infinitum is more profitable for those with private vested interests in it. If the state only knew!!!

    • I’m pretty sure that those of us with “private vested interests” could make more money pursuing enforcement to the nth degree, without necessarily resulting in better outcomes. Most of us dealing with intractable contact disputes want to find a way of progressing and resolving cases so we can move on to something that isn’t so sapping of energy and positivity. Whilst its nothing compared to the experience of the families going through it, working with these kinds of cases is no fun for anyone – there is other work we would all rather be doing. Where enforcement applications are likely to be productive we make and pursue them. Your profit based explanation for everything is over simplistic.

  13. Northern Lights

    At least we agree on our admiration for child protection social workers, but didn’t you know that for the last 11 years they have been the main recruitment source for Cafcass? They then are those who ‘presume’ to write those ‘rubbish’ Cafcass reports. Do you just admire them while they work for local authorities but then despise them when they join Cafcass? A mite inconsistent?

    Thanks for your SRO references I’ll read and add to the pile of case law I ‘claim’ to have. But please note, I don’t ‘presume’ or ‘insist’ on making recommendations to courts. I report when a court asks me to, generally advise parents only when they want it and mediate when they privately commission me to. Children don’t have to speak to me either, but they usually want to. And to set you straight on how often judges have pointed out the ‘obvious’ to me about parental conflict and SROs – never! They appear not to feel the need. I’ve worked a lot at the RCJ with High Court Judges who are certainly robust and sharp enough to withstand my savage attacks.

    Your posts certainly seem to me to smack of hostility and contempt for (most, if not all?) social workers (I should have been cautious about posting under the derogatory label in the first place). And you’re certainly eager to find fault. Lucy kindly pointed out to you that my comments were clear enough in my original posting, though the piece wasn’t about distinguishing between types of orders for the pedantic. But you’re entitled to your views – so am I.

    Family courts primarily deal with child welfare and as you say, it is rather obvious that parental conflict goes with the territory in private law. But I stand by my comments about the need for a degree of parental cooperation. Can you really not see it’s well nigh impossible for two parents to properly raise and care for children without some element of basic cooperation and mutual role respect and in the absence of that, that children can be significantly abused? The law is indeed a blunt instrument. It can usefully make decisions in family cases, sometimes stop a battle, try to ensure children have at least some contact with each parent, or intervene when one or both parents are totally beyond the pale. But it can’t stop mutual hatred, fear or desire for vengeance and it can’t easily end parental wars. And it’s in the nature of such conflict for truth to get distorted and perspectives to get polarised. I’m more concerned with childcare and parental responsibilities than parental rights and case law. My role with parents is to help them focus on their responsibilities and listen to their children (credit to most, for they manage to do that); in court it’s to advise on the welfare needs of children and on child protection in the context of parental conflict. Recipients don’t have to take that advice and can ask me to justify it under oath.

    And where you get the idea from that I’m opposed to SROs. I don’t want to see any rights or responsibilities taken from parents (if it can be avoided) – quite the reverse – I want to see them meeting their responsibilities. What I’m basically saying is that children whose parents have split up need both of them just as much, if not more than they did before, but they need parents who are safe to be with and who respect each other and their children enough to allow their kids to see and love each of them. If one or other can’t or won’t fit that bill, then children are the losers and courts and advisers have to do the best they can to sort out the mess. In the worst scenarios children might need protecting from one or both parents. And sure, no-one is infallible and no system is perfect.

  14. Ken

    I wouldn’t want to argue at all with what you say.

  15. Dear Brian, thanks, i already have the book. And numerous others on the subject. I am doing my best because that is all i can do. I am glad to see that you are slowly establishing that there are hostile situations where SROs can be beneficial, even as a step towards transfer of sole residence. They are a starting point for deciding which parent really does have the overriding issues causing them to be abusive and conflicting. In my experience both have emotive reactions but one is always the initiator and it is not your common “we cant get along story.” It is mainly because one parent has worse issues than the other. You must have observed in practice that the worst abusers almost always portray themselves as victims. You have observed coercive control, manipulation, etc. The problem is – demonstrating all this in a court of law, in a process where people are actually paid to persuade and manipulate to represent their clients, in a black and white environment….and the more money you have the better you can do it (not always but most of the time).

    …could you see perhaps how powerful a recommendation from a person who is just not intelligent enough to detach themselves from prejudice or just plain ill advised – which is unfortunately all too common with social workers reporting in these cases…could be used as a tool to do great damage? I agree with northern lights that social workers protecting children from harm are extremely helpful and supportive, though prone to errors as well – but have a genuine intention for child welfare. In private proceedings they literally take sides which does disgust me. How much easier for them is it to say both should share care?

    You say that punishments are there but some people just dont grow up….punishing a person who breaches the law not only demonstrates that the law works, making other people feel safer, but not punishing it will literally encourage people to behave badly! Have you noticed that people cannot punish other people (legally) but the law can?

    An SRO is a starting point that you and your research consider is not ideal for a child. Compared to the loss of a good parent which is akin to that parent dying? You are aware a child goes through a grief cycle? And if conflict is so high that it breaks an SRO, and residence is transferred to the abuser, do you not think alienation is a logical expectation?

    We need solutions. Try everything till we find something that works because the status quo is terrible. People who cant afford good representation are killing themselves due to loss of their child…that should just not be a situation happening in the UK. Its barbaric. Especially when another person is literally encouraged not to work, because the amount of benefits she (usually) gets is more than if she worked!

    Yes, each situation is different but Nick Mostyn said it clearly – we have a responsibility as parents. If someone is not behaving responsibly as a parent when there is a responsible parent present – there is no argument not to transfer residence. No matter how comfortable the child is. Its about the long terms psychological damage the child suffers from this kind of mother (or parent) and the future has one more potentially mentally ill person in it. Much worse than if said child grew up in shared residence.

    Finally SRO gives both parents a chance before using the status quo argument. Both of them need a fair shot at demonstrating their abilities. It should be there for anyone who wants it – the barrier being that neither parent is a welfare risk to the child.

  16. Northern Lights

    I’m not sure what these vested interests are because the only people making any real money from family law are the experts who report to the court- and posh divorce lawyers with wealthy clients.
    For everyone else, particularly those doing legal aid work, it’s no gravy train.
    I actually agree that prison should be a much more realistic threat for those who blatantly breach orders. It wouldn’t need to be used too often to effect a change in the disgraceful culture of non-compliance in this country.

  17. Guy Tearful

    I agree that jailing a parent (not necessarily a mother) for defying an order can get compliance with an order. There are a few examples. But it can also be counterproductive and alienate the child from the other parent. A 13 year old girl I met who was living with her dad and refusing to see her mother told me the final straw was when her mother sent the police round to her home to arrest her father for breaching an order (they called at the house but wouldn’t have arrested him & he wasn’t in breach). She said to me, “how can she care for me if she wanted to send my dad to prison?” She wasn’t a deliberately manipulated child, the mother had misunderstood the situation, was angry & wanted to harass the father. She hadn’t meant to upset her daughter. No amount of discussion could get the girl past the police incident – she’d been frightened by it and regarded her mother as evil for causing it & absolutely refused to have more contact with her mother. The mother was very distressed and the situation was tragic but court orders can’t make a girl of that age see her mother. Imagine how it might have been if her father had gone to prison.

    Lucy is right, some of the cases we get involved in are totally exhausting and none of us relish being involved for long. There’s no financial incentive for social workers to deliberately lengthen their involvement in a case. They’re overloaded with work and employers are concerned with throughput and getting work done quickly.

  18. Singledad1

    The loss of a good parent is a childhood tragedy and I don’t say SROs are not good for children. They are in the right situations. Sure, one parent can be malicious, instigate much that is wrong in a situation so the other is a victim – for e.g. domestic violence/substance abuse cases – and sometimes a transfer of residence can be the right thing. I’ve recommended it & seen it happen. But it has to be done with caution & isn’t always feasible.

    Not sure I agree that social workers routinely take sides. It’s quite difficult to feel much sympathy for parents who are fighting (most are ordinary, decent people, but who are at their very worst in these situations); much easier to feel for the children, as SWs are supposed to do. Like any other kind of work or profession, there are good and bad. Their work is supervised by senior caseworkers or managers – there are appalling layers of bureaucracy geared to ensuring they don’t discriminate on grounds of gender, race, religion, age etc. There are also incessant inspections of their work, internal & external. Personally I think such systems are over-the-top, ineffective & waste resources. They force SWs to sit in front of computers form-filling instead of working with families. But the point is that their organisations go to enormous lengths to ensure impartiality and professionalism – even their spelling and grammar is checked. On top of that, they’re answerable to the courts for their work in a case & can be asked to defend their reports & views under oath & to answer questions from the father, the mother & the judge before any decisions are made. You may not be happy with their work but in terms of checks on them not much more could be done.

    • I gotta say Brian, for all the bureaucracy I’ve not noticed much in the way of consistency – some social workers are fab, some dire. Same with CAFCASS. And for both CAFCASS and Local Authority social workers decision making is increasingly vested with managers / the holders of purse strings rather than the social worker on the ground who is often disempowered and whose judgment is sometimes disregarded or challenged by superiors. As you rightly say, one of the layers of checks is cross examination by parents lawyers – that will remain in public law cases but will go in private law cases. So that aspect of quality control will go. Who will challenge the over-ready acceptance of a report from “the very experienced CAFCASS Officer Mrs Blah” by a bench or judge? Fine when they’ve got it pegged, but inevitably they haven’t always.

  19. I think we need to stop trivializing and downplaying the crimes that are committed against children by implacably hostile parents who use the expertise of solicitors to abuse the system and dupe family court judges.

  20. Familoo

    Cafcass has enormous problems with dwindling budgets and overloaded staff, but does appear an authoritarian organisation where many staff feel unable to utilise their professional skills and the budget seems to take priority over working for children. New staff can be very aware of child protection issues but seem neither experienced nor trained in understanding family conflict and dispute resolution. Some newcomers say how surprised & bowled over they are by the intense emotion & hostility of parents in private law. The whole approach has shifted from the former specialist kind of service (which had its faults) towards a local authority children’s services approach – more to do with pre-court risk assessment than being pro-active at court or actually helping families. I’m not the only manager who’s left Cafcass to be contacted by staff asking for advice on basic skills and procedures that they say they aren’t getting from their organisation. Private law is now more the poor relation of public law than it’s ever been, despite having a much larger number of needy children. The Munroe report told us much of what’s wrong with social work, so has Select Committees concerned with public accounts and family justice, but Norgrove seemed to skirt around the issues. Someone needs to examine & learn from what’s gone wrong & finally put together the kind of service that’s needed. This kind of work faces a worrying and uncertain future. In the meantime there’ll be inconsistencies & poor practice. Not all will agree with my views but many do feel much the same. However, social work organisations aren’t unique in having their faults.

  21. inflagrantedilecto

    This mirrors my experiences with Cafcass….when I first joined them there was some rivallry between some private Law practitioners and CG’s….which should have been evened out by converging the 2 disciplines. New recruits who came from L.A. social work wanted the CG role and status….and because of demand were forced to undertake private law work. Even though they were experienced in child protection work they weren’t allowed to undertake CG work until they had further Cafcass training….whilst they were allowed to get on with Private Law work which they had no experience of….without any additional training whatsoever…..oh and it involved proper social work where actual interactions and direct work with service users offered the opportunity to, “sort it….don’t report it”, mantra which lasted about 10 minutes in Cafcass,before being consigned to the bin.

  22. Brian,

    In the case you describe, the mother was clearly using the police to harass the father, and the daughter will no doubt have seen this as a pattern on her part. It serves her right. It is indeed tragic, but some mothers just are not fit to be parents – believe it or not…

    In most cases, however, it would be the judge sending the parent to prison, not the parent – and only after a long history of abuse, perjury, contempt, breach of orders, etc.. And that will (or could) be made clear to the child, if not by what they have seen, then by the court order. Yes, in some very exceptional circumstances, and when of age, children should be party to such things, and be told the truth about their circumstances. It may pain them, but it is better to know the truth about one of their parents than to repeat their parent’s mistakes. Knowing something about who made you is a form of protection.

    Prison is pretty unimaginative, but people go to prison for far far far lesser crimes, as we saw during the riots. Until more imaginative punitive measures replace it, it ought to be used when the case merits it. And so many cases in this country do merit it.

  23. Brian,

    Why does there have to be the “right situation” for an SRO. It should be pretty automatic, actually, if common sense is anything to go by. Children have two parents at birth (usually); it follows that they ought to have two after separation (unless mom or dad is unfit and that can be proven beyond all doubt).

    Parents who say they do not want their children to be parcels passed to and fro ought to have thought about that before separating. Don’t commit a further form of abuse toward the child by robbing him/her of one parent after separation.

  24. Guy Tearful

    I prefer arguing for what’s best for the child than arguing against automatic shared residence in any particular case. It’s a difference in emphasis. But if the court has to make an order at all, then shared residence should be high on the list of priorities. I agree with you that children shouldn’t be ‘divorced’ from their parents & parents shouldn’t lose out in relation to their children without a very good reason.

    Family courts work on the ‘balance of probabilities’ though. It can sometimes be difficult to prove conclusively what has been going on between two people, but risks shouldn’t be taken with children.

    Children tend to feel more like parcels when parents are more concerned with their own rights than with caring for their children in situations where parenting arrangements involve substantial periods of time in each household (i.e. 40/60 splits of time & above). In the worst situations the experience of moving between households can be a form of abuse in itself – like crossing no man’s land moving between lines of enemies.

    But family courts shouldn’t be about winners & losers. The govt is planning to do away with the concepts of residence & contact, let’s see what comes & hope it better meets the needs of the modern family.

  25. I don’t agree that risks shouldn’t be taken with children. All decisions based on unknowns entail risk of some kind, by definition almost. What you may consider erring on the side of caution may actually, and often is, erring on the side of harm. We see this all the time in social services assessments where fathers are prejudged as potentially ‘risky’ and the mother, though denying paternal contact, is deemed as being ‘appropraitely protective’ when she is nothing of the kind.

    I write as someone made the subject of S.47 police/social services enquiries where this precise phraseology was used by social workers in their perverse investigation. I speak from experience, therefore. It took an acknowledged child expert to undo this madness and I now hold shared residence.

    No thanks to social services who couldn’t tell an alienated child from a sparrow.

  26. Dear Brian

    I have to disagree with this notion of 2 homes being a form of abuse. This was instigated because some university student made a comment about how she felt and that getting to university was the only time she felt like she had a home. Does that mean all children in boarding schools are being abused? Are you aware that the split for boarding school and living at home would be about 35/75?

    It is this kind of research which no one questions and is just widely accepted as social norm. I understand that where 2 parents are being hostile that it could be difficult but you must distinguish that the act of moving between 2 homes is not the abuse – it is the implacably hostile parent – the trouble maker – who is abusing the child. It is invariably the party who does not want shared care, wants to control the other parent, and deny the relationship to the child. It does not follow that someone would ask for shared residence and then try to get sole residence. What does follow is that the person opposed to shared residence invariably wants sole residence. That is why they are in court.

    What i am saying is that where SROs appear not to be working – it should be looked into in more depth which parent is strategically trying to destroy it (pretty easy to discover this over a period of 1 year) and which parent is busy reacting to the abuse they are undergoing. I am just talking about cases where hostility does not reduce but rather appears to perpetuate.

    If said girl who liked her university room did not have a father, i wonder if she would even have attended university – I imagine her fate would be substantially worse. Why does no one have the intelligence to ask these questions?

    The worst form of harm is the loss of a parent unless said parent is a proven risk to the child. Proven beyond reasonable doubt – not on a balance of probabilities.

    Familoo- i agree with alot of your points and thank you for considering some of mine. I know i grossly oversimplified the financial aspect – i just wanted to sight an example of something which can in a particular circumstance – perpetuate hostility. People on benefits with shared care have more time to be hostile that the parent who chooses to work and look after children. Though the jist of what i am saying is to look at the virtues of SROs – rather than critique the benefits system – that is a completely different conversation.

    I do want to also state that I am really really glad and grateful to see people taking the time to discuss this. It does let me know there are decent people out there who are looking for solutions and we need more of those. I also thank you for giving me a platform to put some humble points across for consideration – and give me the benefits of your experience. I do learn from it. I did not intend to offend anyone here and I am sorry if I have inadvertently done that.

  27. Brian,

    Good to see that you feel that it should no longer be about winners and losers, residency and non-residency, and “rights” (whatever that means – I don’t know anyone who speaks about parents’ rights).

    When the day comes that child welfare is truly put above all else (and that SROs are automatic), that will be a victory for all. Women will no longer be enslaved to the home and their former partners (via child maintenance), and children will benefit from the father figure that they would otherwise have been robbed of.

    As you say, in the worst scenarios, compelling the child to move between homes can be a form of abuse. I think we have to examine why and how those scenarios come to be the worst. It is usually because one parent is unhappy with that scenario, and seeks to undermine it.

    Shall we agree that the parent unhappy with the shared parenting arrangement just not have any contact at all? Because if you cannot make it work for the child, then you are part of the problem rather than the solution,aren’t you?

  28. interesting discussion
    speaking as an complete outsider.
    What about step parents, and any step siblings? Surely they need some consideration.
    Speaking as one whose parents broke up when I was fairly young, I survived without too much trauma. But I was allowed to get over it by not having father turning up every few weeks.

  29. Only social workers and family law professionals bleat on about parents or fathers claiming ‘rights’. Us parents claim no such thing. We simply want to bring our children up and enjoy being with them.

    • YOU might not bleat on about parental rights Paul Gilson, but sadly a fair few of the parents I meet do. It’s not entirely urban myth, even if it’s not a reflection of your own experience.

  30. Brianjack, the events that are most traumatic in your early childhood are the ones that you usually don’t know about, things that you’ve ingeniously managed to repress for the sake of survival, until something triggers and brings them back to you. That is essentially the definition of trauma. As for the point you are seeking to make about step-parents, I don’t quite follow. These can be very positive (or negative) influences on children, but never replace a child’s desire to know and be loved by his/her maker, so to speak. That’s why children are comparatively much less likely to seek out or want to have anything to do with estranged step-parents.

  31. Familoo, Paul is making a very important point. The point is that separated fathers are represented, or shall we say mis-represented, as only caring about their rights. If some fathers speak of rights, it is only to expose Britain’s blatant and abusive disregard for the UN convention clauses on the rights of the child and the right to family life. Deep down though, the majority of them could not care less about rights, but only about participating and being there for them. This becomes very apparent when you are working with separated dads on the ground, rather than being concerned with whether they can afford legal representation or not.

  32. Great post. Interesting that such an experienced practitioner still identifies himself as a social worker. When I started reading it I assumed it would be by someone employed by a local authority.

  33. Julie,
    I think it was a good post too, but I worry slightlyu at your surprise that he `still’, identifies himself as a social worker. Socil work is a registered profession. As a Guardian, I still identify myself as a social worker. I encounter through work numerous extremely experienced social workers, some of which work for local Authority, some who don’t.
    I think it is sad that as a profession, it is too often regarded externally, and within the profession as a `starting’ position, to work for Local Authorities. As you acquire experience and variety in your career of specialist posts, or climb the management ladder you are expected to identify yourself as something `more’ than a social worker.

  34. I agree with all you say Willo, but I found practitioners (both public & private law) who had gone into court work stopped calling themselves social workers. It may be a long time before social work reclaims its good name, especially as the media continue to disparage it. The positive public response to the TV programme about Bristol social workers seems to have been excceptional.

  35. Julie – I think the media disparages it for valid reasons. Social work is generally sloppy, uninformed about the latest research, and sexually discriminatory or at least prejudiced against the value of dads’ involvement. Social workers are like all workers under late capitalism. They are like those who go around saying “I’m just doing my job,” as if that were an excuse to cut corners in the name of efficiency, at the expense of common sense and ethics.

    • Guy I recognise much of what you say as a characteristic of SOME social workers, but it’s both unfair and inaccurate to characterise all social workers this way. There are many dedicated child focussed and even handed social workers working in both CAFCASS and local authorities, for all the institutional and cultural difficulties of the environments in which they work.

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