An Intractable Conflict?

I’m despondent. Not because of my recent first hand experience of cyber nastiness, but because the prospects of having any real debate, and of finding new ways to improve the lot of children and parents caught up in the family justice system are receding ever further into the distance. Or so it seems. There are moments when it seems as if we are communicating, learning, listening. But they always seem to be fleeting. And almost in the same breath that something sensible is said somebody gets ornery.

 

i hate you cake, thanks to kayepants

i hate you cake, thanks to kayepants

There is a lot wrong with the system, notwithstanding the efforts of those who work within it to make the best of limited resources in the face of hostility from government, press and large chunks of the public. It is right that the system should be criticized and it is right that those within the system should hear that criticism. We can learn from it.

 

But we can’t do that by shouting at one another and by engaging in endless circular “discussions” about how “I’m right” and “you’re wrong”. That’s a waste of everyone’s energy and a source of yet more frustration – for practitioners who feel under fire, and for fathers (and mothers) who feel they have been ignored and done over by a failing system.

 

No, what we NEED is dialogue, not a playing out of competing cases in adversarial style. It’s like an intractable contact dispute. Neither side really wants to engage. It’s all about their issues and not a lot about seeing it from the perspective of the other. It’s all about blaming the mendacious, malicious other side. Neither can conceive that the other could be motivated by anything but selfishness. Sound familiar?

 

And so. There are two separate conversations going on – the one amongst professionals: how can we make things work better, cut delay, focus on the needs of children, divert cases from court etc? And the one amongst the disgruntled public, mainly fathers: how can we make them listen? How can we expose the system for what it is?

 

But actually, what we desperately need is to pool our knowledge, skill and experience.

 

The blame does not lie with one side. It lies with both.

The professionals for their part largely pretend that the other conversation is not happening – avoid fathers rights groups and members at all costs: “Don’t engage, it’s pointless, dangerous even”. They pretend that the public debate about the injustice in the secret family courts is not raging across the internet. “Don’t read the rants. They are deluding themselves and nobody is really listening”. But it is out there, and it is massive and it is corroding public confidence in the justice system, and not just on the margins either. And this is happening because we let it. Because we do not redress the balance by telling our own story. Because we do not challenge the obvious fallacies and false logic. Because we do not listen to the voice of the activist and of the disillusioned for long enough to try to sift out the grains of truth in the badly expressed complaints. There is a sort of prejudice against those who aggressively pursue their points outside the established legal pathways, a prejudice that allows us to consign them all to the “loony” category.

 

And the critics, who wage their campaigns on facebook and blogs and by direct action? They are also to blame. For expecting their viewpoint to be accepted without question and for seeing conspiracy in everything. Good points obscured, opportunities to change minds wasted by point scoring, personal attacks and a poor use of evidence. Too much anti-lawyer, anti-female prejudice. And a lack of realism about what can be achieved with limited resources and a tide of new cases and an upsurge in family breakdown. And sadly, a few far too vocal loonies, who the sensible majority seem powerless to tackle.

 

There is a lack of respect and paranoia on both sides, an inability to deal with criticism – it’s met by a combination of denial, ridicule and aggression. But you know what? If you ignore it it’s still there.

 

There have been a number of comments on the blog recently from lawyers fed up with the unconstructive attacks on lawyers that characterize the father’s rights movement’s approach. They are almost all anonymous. Not because they are cowardly, but because they are fearful or at least just don’t want the hassle. It comes to something when a lawyer is not prepared to express a view. The state of communications between professional and lay stakeholders in the family justice system is critically dysfunctional.

 

And it’s not just dads versus lawyers. CAFCASS too are under perpetual heavy fire (sometimes from me but more often from parents of both sexes) and they appear sometimes to adopt a bunker mentality. There are many reports that CAFCASS staff feel unable to express their own strongly held views about the direction in which CAFCASS is travelling, which is another problem in itself.

 

I don’t know how to fix this dysfunciton. I wish that a critical mass of professionals were prepared to stand up and be counted, to publicly explain what their job is really all about, what they are trying to do and the obstacles they face. To try to redress the balance. Because at the moment the professionals are talking to themselves. I join in those discussions and then I step into the internet and it’s like another dimension.

 

And I wish that a critical mass of those who are agitating for change could keep a lid on the urge to blame for long enough to make constructive suggestions.

 

It’s chicken and egg. I don’t blame any lawyer for observing silently or for commenting anonymously. Or for just getting on with the day job and letting someone else deal with the big picture. As a result of being verbally attacked by Matt O’Connor I am now being approached at court by worried colleagues asking if I am “keeping safe” who themselves have had bad experiences with activists. We aren’t in this for the money, but by God we aren’t paid enough to count as danger money. There is enough mud slinging and agro in the job already without inviting more of it. It’s easier to leave it to someone else. For my part, having already attracted the ire of the dads, I feel I might as well continue. I’ve been under attack for pretty much the whole time I’ve run this blog, although much of that has not been public until recently. It hasn’t stopped me so far and it’s not likely to do so now. I’ve never been able to keep my gob shut for long. And I’m a bit bloody minded.

 

The problem is bad enough now. But what happens when LASPO goes through and everyone but the Djanogly family is unable to afford legal representation? They’ll be seeking information and guidance from the internet. And they’ll have plenty of time to find that guidance whilst the court service sinks under the weight of its own caseload. We will not only have a tide of litigants in person, we will have a tsunami of litigants in person who view the system as not just imperfect but corrupt, and who are fully expecting the system to fail them (and they may be right). It’s not the kind of public legal education that we need.

 

We can turn away from the conversation, but we will be forced to confront it one day.

 

Part of the reason for the delay in posting this is because I’ve been pondering for some time whether there is another way to address this issue. There may be better ways, but I’d like to start by inviting those who work in the system to give their accounts, anonymously if it encourages frankness. Not as some kind of propaganda exercise, but as an exercise in helping people to understand what motivates those people, what practical and ethical difficulties they face, what they really think about the strengths and weaknesses of the system and how we can sustain and improve it and how we can better engage with stakeholders. There are lots of accounts out there of the poor experience of parents going through the system, but few accounts of the other side of the coin. So maybe it will be a small first step if those accounts could be made available through Pink Tape.

 

Any professional reading this blog who wishes to participate can email me using the email address given on the About page, or by tweeting me (DM me or email me if you wish to remain anonymous). Whilst I wait for the probably underwhelming response I will ponder on a list of broad questions that each respondent might use as a framework for their post.

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111 thoughts on “An Intractable Conflict?

  1. After seeing the infamous post with its many comments and now this, I am reminded of the Oasis song, “Let’s all make believe” – especially the bit at the end where Liam sings “…that in the end, we’ll all grow up”.

    Oh, and friends, it’s not the lawyers who need to be growing up. It’s their punters.

    And I could be really, really mistaken – but I can’t help but wonder if legal aid enables childish parental behaviour.

    Mind you, without legal aid, judges would be held hostage to the self-centred bleatings of guys who care only what’s best for their egos – and not for their own children.

    I used to work with some family solicitors. At Christmas time, one had loads of wrapped presents next to her desk. I told her that her kids were lucky. She told me her client dropped them off to her to pass on to his children.

    Sorry Matt, but I felt bad for the children who needed to be protected from their father (and don’t give me any BS about DV only affecting mum) rather than for “hero” dad who’s dressed up like batman up on Tower Bridge.

    Family lawyers, I could not do your job. You are like King Kanute trying to hold back the tide of dysfunction.

  2. Thank you Lucy for this. I read all the 220 + comments in the mega post the other day. It took me half a Sunday and my husband kept badgering me to get his computer back.

    I alternated between fear/ dispair/hopefulness/brain overload/ shock/ outrage so on and so forth whilst reading the comments.

    I wanted to let you know I will try and engage in this, because I believe in logic and that anecdotal evidence does not give a statistically relevant picture.

    I will need time to think about the issues…

    Please do not lose heart; there must be a better way of dealing with the astonishing shift in cultural acceptance, that now around 50% of children can look forward to serial losses by way of parental separation compounded by insensitive and cruel slagging off wars.

    Matt O’Connors post about you simply makes F4J look rude, agressive, abusive and loopy. I hope he does not behave like that at home.

    I cannot understand his points when they are obscured by his passion; so someone else is going to have to make the points for him. It appears he needs an advocate…

  3. Lucy,

    I sat in committee room 16 at the Palace of Westminster and in the room were barristers, psychiatrists (as audience members, not to treat us), MPs and representatives of the third sector.

    There was a remarkable consensus in the room, and I do not accept the view that some professionals do not voice criticisms as strongly as ‘fathers’, nor that what fathers groups say is unreasonable (you’ll find quite a number of mothers in these groups as well now). At that meeting in November 2010, it was Ann Thomas who actually came out with the greatest indictment of the legal system. Certain members of the judiciary have been just as vocal in their criticism. I believe Munby called the courts impotent, and Mostyn savaged the courts’ reasoning in how it handled leave to remove cases within 6 weeks of being made a High Court Judge (I do like the Honourable Mr Justice Mostyn).

    What I think some find frustrating is that a gloss is often put on the failings in the system, by those who really do know better. A few of their colleagues take an honest and more courageous stance, in pointing out what’s wrong, and if more did, then change would be more rapid. Sadly, inaction and silence perpetuates a system which doesn’t best serve child welfare.

    I haven’t been rude. I have disagreed with some of what you say. I don’t hate solicitors. I respect a fair number of them, but conversely, am quite willing to be critical of the poor practice we observe. I’m not anti the judiciary. There are a fair number of judges who I have deep respect for. That said, judicial discretion and the lack of guidance means the standards in the judiciary range from the exemplary to the shoddy and bigoted, which makes outcomes in the court a lottery.

    So… we propose more detailed statute, a less adversarial system, a more inquisitorial system, a system based more on knowledge of child psychology than technical knowledge of complex law…simplification. We base our opinions on research, and are able argue our points, even if some find those arguments uncomfortable.

    I ran the Relocation Campaign… and sadly, we’d have got nowhere (Sir Mark Potter and Lord Justice Thorpe refused to see any need for change) had Sir Bob Geldof not written a forward to a report I had written which grabbed headlines and caused embarrasment. It made politicians sit up, gave Harriet Harman indigestion (according to a Guardian journalist), and raised the profile of an issue which others had been complaining about without success since the Poel Group (pre-Payne). The courts started to talk of criticism… not due to my reasoned arguments (which finally got heard after), but because they were Geldofed.

    Personally, I’d have preferred to just sit with a Minister, and a more open minded President of the Family Courts and discuss how this broken system can be fixed. Yes we can tinker at the edges, or we can rebuild it from the ground up. I don’t think we’ll fix the system and secure a more uniform method of safeguarding Article 6 and 8 rights by tinkering at the edges.

    Ryder’s speech (it was in 2008), at the Twenty Fifth Anniversary of the Butterworth’s Family Law Service is well worth reading.

    http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mrj_ryder_25th_ann_butterworth.pdf

    His concluding statement was this “We need a new family court if we are to survive the many pronged attacks on our existing system. The public deserves such a court and before we lose them to financial ruin or retirement now is the time to engage the professions to provide a model for the future. Our existing system of FPCs – constituted by the self selecting great and good and a professional judiciary is not in tune with the society we live in. We need to be brave enough to say so and say that family justice is more important than the structures we have inherited.”

    I can only hope that now he has been appointed to a position where he can influence modernisation of the judiciary and courts, peers will support him in doing so.

    On one final point, I don’t agree with rudeness or bad language that’s been directed at you. That said, I find more objectionable the defence of a system which fails children and families, and the emotional, psychological and financial harm that our system of law causes.

    Michael

    • Michael I have not suggested that every father or every person speaking for fathers is rude or unreasonable, simply that there are sufficient who are to obscure or dampen any debate. And I hope I have been fairly even handed in suggesting that no one group is without fault or blame.

      Really interesting speech by Ryder thanks – not seen it before.

  4. The Family Justice Review was hijacked by self-interest groups, and reforms focused largely on money saving process tweaks rather than a real reform of the system to better safeguard child welfare.

    The praise for the Family Justice Review by a few… solicitors groups, the President of the Family Courts, Ken Clark, shows just how at odds they are with the public, press and Government who rightly called it a betrayal (and one due to protectionism rather than having a genuine regard for child welfare). It is harder to be viewed as a professional when self interest is put before duty to children. Some view it as shameful.

    Michael

  5. Good sentiments familoo but unfortunately it will only be legislation brought about by public demand that will change things for the better for children.

    This article today in the Mail sums up for many users what is wrong with the family law system.

    http://www.dailymail.co.uk/debate/article-2112905/The-law-doesnt-damn-fathers.html#ixzz1oi6V7ebd

    • Chambers, the article by Louis de Bernieres is an opinion piece based on his personal experience (which I don’t question), but which is then extrapolated into sweeping generalisations. So we end up with a system of “judges of both sexes [who] are the kind of people who have never had to change a nappy in their lives, and don’t see why any man would want to” and a nation of mothers who “commonly employ [..] dirty tricks”. And solicitors who are driven by the desire to wage war and to acquire another male head as a trophy for their wall than in acting on instructions from their client. I don’t doubt that there are both judges, mothers and solicitors that fit these descriptions but it’s hardly a neutral evaluation of the more general picture.

      One might question whether or not the court has sanctioned national publication of the details of this case, but no doubt the Daily Mail will have ensured this is so before publishing.

  6. A message of support from Discombobulated Lawyer

    You make some excellent points Lucy and have articulated the problem and possible “solution” superbly.

    I am really sorry to hear about cyber-nastyness. I have been a victim of it myself and so don’t use my name, because it’s frightening. I like to think that I refuse to be intimidated, but that sometimes seems inevitable when you express your views, especially if you’re a lawyer.

    You do a terrific job on this blog and some of the issues you raise have really made me think. I do hope that you will continue; please don’t be put off. We need more lawyers like you who really care to be out there putting intelligent points across, for all sides!

    X

  7. I’m not sure an unpleasant post from an ego run wild need depress you. Making you angry is a different matter. I tried to leave a comment on the site, to find that the brave O’Connor had turned them off. That is shabby obviously – but it does suggest a well-founded fear that the only way to look good is to ensure that no one else can speak. That’s pretty well what one would expect from someone whose blog for the “cause’ talks drearily about the importance of the man behind it.

    In the end, the threats and the screeching will be disregarded by most people who know about them – and the vast majority of people will not know about them. Those who are capable of debating will meanwhile continue to move the matter forward. Those incapable of debate will ultimately exclude themselves; the progress made will be more secure because of it, and fools who think that the way to deal with sensitive family issues is to posture and threaten will be left with another tedious conspiracy theory.

    I think your post was brave and necessary. On any issue there are always groups of people whose take is determined by viewing things through the prism of their own demands and self-regard. They inevitably believe silly things and equally inevitably exclude themselves from serious debate. That isn’t depressing. A constructive resolution to anything demands TWO lots of people willing to listen and, in the end, that will happen. It won’t be the current self-promoters unless they have the wit to alter their approach, and it may take time. But that isn’t down to the lawyers, but to the parties. We can represent them: it isn’t our job to make them do things. Chin up.

  8. Discombobulated Lawyer

    Ursula & Kris

    You make great points and I feel a bit better about this whole matter now.

  9. Lucy

    The Family Courts by and large are corrupt Lucy, though not all those that participate are. When I say corrupt I know this from experience and having seen the documentation of many others (mothers and fathers) who have experienced corruption. I dont like to personalise comments Lucy but I will share some specific elements of corruption I have experienced:

    [edited]

    This is just a few examples Lucy, all confirmed independently that happened in Family Courts of England. I broadcast a Radio Show on Family Court experiences and speak to many people who have had identical experiences to me, sometimes with the same Judge/lawyer/barrister/expert. The correlations are too high for this to be a statistical annomally Lucy, whether you want to call this corruption are an imperfect system that fails families really comes down to:

    1. Why are hum drum cases held in secret?

    2. Why are the same Judges/Lawyers/Barristers/Experts becoming well known over the social networks for being unprofessional (euphemism)?

    3. Why do are Judges stop cases from being appealled by denying access to Judgements?

    4. Why are Judges using draconian orders to deny LIPs from access to the Courts?

    5. Why are Public bodies repeatedly breaking the DPA, HRA?

    Again a truncated listed that still highlights why Courts which are under pressure are being seen as corrupt. Lucy I do not imagine for a second you are corrupt, I can confirm that you are a barrister who people have confirmed to me is very capable and professional. Yout book as well gets plugged on our broadcasts based on real LIP positive feedback. I am sure that lawyers who therefore associate with you on here, will most likely share your professional standards and moral responsibility. I would therefore encourage them to keep commenting and engaging.

    A Leveson style enquiry will soon be looking at the way Family Courts have operated Lucy because there is a tsunami of public outcry building up at the minute. Those lawyers and barristers that were on your blog and trying to engage with victims will be the ones most likely to be on the right side of the tsunami when it hits.

    Alan (Formerly Dadzarmy)

    • Alan,

      I’ve edited the details of your own case, which are quite precise, for the usual reasons.

      I agree that there may be bad practice and dishonesty, and lots of things that don’t work well about the system – but I genuinely don’t think there is systemic corruption. Every system will have isolated incidents of corruption and we must act to stamp that out. However, lawyers acting (quite properly) on their clients instructions is often categorised as corruption when those lies are later exposed, but actually it’s just a lawyer doing her job (and the lawyer may well have advised the client that the way they may be disbelieved by the court).

  10. Found the research you were questioning in support of why the historic alternate weekend preference of a good many courts fails to reflect contemporary society.

    ‘Completing the Revolution: The Leading Indications’, Equal Opportunities Commission 2007, London

    British fathers now undertake approximately nearly half of all childcare. Mothers recorded an average of 2 hours 32 minutes per day looking after their own children, compared with 2 hours 16 minutes by
    fathers.

    4.2 ’Working Fathers, Earning and Caring’, Equal Opportunities Commission 2003, London

    The amount of time that fathers of children under the age of 5 spend with them on child-related activities has gone up from less than a quarter of an hour per day in the mid 1970s to two hours a day by the late 1990s.

    One other finding which may interest you, in relation to the case you discussed where the father was happy with one day a fortnight (note this wasn’t self edited for legal reasons? Your own examples of your experiences seem allowed, whereas mine aren’t?)

    Laumann-Billings L & Emery RE. Distress among young adults from divorced families, Journal of Family Psychology 2002; 14:671-687.

    Fortnightly amusement-park parenting (the old 80:20 formula) contributes little to developing meaningful parent-child relationships.

  11. familoo,
    well the few secondary quotes you have picked out no doubt support your view of his argument and perhaps help you feel you can sideline the arguments as a whole.

    However, the bulk of the article sums up well what many users of the system (and plenty who work within) experiences of adversarial family law is.

    Perhaps its those primary views you should be addressing rather than the minor additional points you have highlighted.

    • Chambers, what is minor about the suggestion that judges are all out of touch, and that mothers and solicitors are all routinely engaged in dirty tricks? They are quite serious allegations and quite specifically not put on the basis of experience but as assertions of broad truth.

      I don’t (and specifically said I did not) doubt the personal experience that LdB has suffered, nor that others go through similar or equally difficult experiences. But it is a big step to go from that to statements of such broad application.

      I think articles like LdB’s are useful to lawyers in reminding us how our actions as lawyers can often be perceived or misinterpreted (for example turning up at court mob handed).

  12. It is rather depressing that the lawyers who comment on this blog nearly always seem to concentrate on the poor presentation of a few of the opposing views, rather than the details of the argument from those such as Michael which are well made and wholly reasonable.

    If there are 9 reasonable posts opposed to the lawyers views and 1 which is unreasonable, then the lawyers on here concentrate on the 1.

    So far on this thread and others all we have seen from the lawyers is moaning about a few impolite posts.

  13. Nick Langford

    I interpreted Lucy’s post as an olive branch, held out from one side of the debate to the other, ‘The blame does not lie with one side. It lies with both.’

    What a shame, therefore, that the first post in response puts a match to the olive branch, ‘it’s not the lawyers who need to be growing up. It’s their punters’. Provocative and confrontational – not really a good start.

    I accept that there has been behaviour on our side – the dads’ side – which has not advanced our cause. There is ranting, there are ‘obvious fallacies and false logic’, the complaints are often badly expressed. As a moderator of various fora I have always forgiven most of this because it comes from fathers maddened with grief and loss, from fathers who are not lawyers or academics but just ordinary men, unaccustomed to the depths of emotion they are suddenly feeling and unequipped to express it in words.

    It is easy to mock, and some legal bloggers (not Lucy) succumb to the temptation. You cannot understand the loss of a child until it happens to you. To anyone else these men in their lycra with their poor spelling and working class accents look absurd. But the bloggers are not without fault themselves, their own spelling, grammar and placement of apostrophes are not above criticism, and their complacency about the system they serve does them no credit.

    Nor do I deny that sometimes separating parents behave appallingly, but do they behave any worse than the lawyers who encourage them to make false allegations, or who advise mothers to spend a spell in a refuge, to make the allegations convincing?

    There is another side to the equal parenting campaign which the lawyers would do well to heed. It is intelligent, it is well informed, it is well read. It may appear, as John Bolch has remarked, obsessed with academic research and data, but that is the corner into which it has been pushed. It is represented in the UK by writers such as Karen Woodall, Michael Robinson, Robert Whiston, Oliver Cyriax, Ivor Catt, and in the US by Glenn Sacks, Sanford Braver and Stephen Baskerville.

    I mention this because this side of the fathers’ rights/equal parenting movement would love a proper debate, our pieces are in position, but the lawyers and other representatives of the family justice industry need to up their game. They need to progress beyond the smilies with which they sometimes answer criticism, and the contempt for their clients which reeks from the legal profession.

    Lucy’s post was obviously not addressed to the parents’ side of the debate; I am merely stating, from my own point of view, that I agree the debate needs to be held, and there are those of us this side of it who will welcome it and listen respectfully, provided the respect is mutual and the arguments hold water. There have been so many warnings over the last decade that the system is in terminal meltdown that it is hard to take them seriously any more, but Lucy is surely correct that a flood of LIPs is not what the system needs. It is also fairly easy to predict that whatever the government does following Norgrove will cause outrage in some, if not all, quarters. I applaud Lucy’s efforts to turn her blog into a serious forum for debate, despite the attempts of both sides to prevent that.

    • Discombobulated Lawyer

      Nick

      You raise some important points very well and I agree with much (although not all), of what you have said. However, false allegations suggested by a solicitor?!

  14. familoo,
    how about the following points made by ldb:

    [Chambers I've edited out the 16 direct quotes you have pasted from the original article - which make the comments thread very unwieldy and were basically the entirety of the article excluding the bits I quoted. Those who want to can go and read it for themselves.]

    http://www.dailymail.co.uk/debate/article-2112905/The-law-doesnt-damn-fathers.html#ixzz1oi6V7ebd

  15. Bob is fine Lucy!

  16. Thanks for your comments Lucy. Ryder J has some good ideas and is one to watch with interest.

    One thing to clarify, The Custody Minefield, does not set out to help parents and their children based on gender, but on need. We’re happy to help parents of either sex who support an ongoing relationship for their children with both parents.

    Where one parent seeks to unreasonably sever contact, we refuse or withdraw assistance. Sometimes that can be where fathers aren’t focused on the children’s needs.

    A point of interest is that according to site demographics anaysis, more women than men use our site and mums are very welcome on our forums.

    That said, we do believe that the application of law still has a bias in favour of mothers which goes counter to child welfare (as was particularly the case in leave to remove related law). We also believe the adversarial nature of proceedings isn’t in either parent’s best interests and certainly not their children’s.

    I would also like to make very clear I am not anti women or anti mothers. I have a mother myself you know, and she’s rather lovely!

    Michael

  17. familoo ref your #17,
    I believe you have misquoted ldb in the Mail article.

    He does not say mothers are all engaged in routine dirty tricks. He says ‘some’ people resort to dirty tricks. He is positive about the bulk of mothers in this country.

    He does not say lawyers are all engaged in routine dirty tricks either. He says ‘some’ of them will clean you out. Ldb is positive about his own lawyer who he says she “was agreeable to the idea of mediation right from the start.”

    He was quite positive about his own judge in Cambridge and not so positive about the judge in London. He did make suggestions that judges are the kind of people who may be out of touch with many family set-ups. Quite right in many peoples experiences.

    I don’t see these as “quite serious allegations” at all, relative to the numerous false allegations made in the family courts to gain advantage such as dv, child abuse etc

    • Chambers, I have directly quoted LdB (comment 12) and comment 17 should be read in that context. He does not say all, I accept but he does say “commonly”. I don’t perceive that as positive about the bulk of mothers in this country.

      He does not say that all lawyers are engaged in dirty tricks. But again you need to read this in context. He also describes “hordes of lawyers who exist to exploit the hurricane of emotions that overtakes you” and talks about them suggesting making false allegations of DV as a “tactic”. The distinct impression, which I am sure is not accidental is that these are endemic problems, notwithstanding his own luck in securing the services of a solicitor cast in a different mould.

      LdB’s own comments about judges are put in broad terms about judges as a group. He does not caveat it with a “some”, although as you say he is oddly then quite positive with one specific judge who was sympathetic to him.

  18. It’s been long known – since the early 90′s at least that a schedule of alternating weekends with the father is generally insufficient to meet most children’s needs, and is likely to result in impaired father-child relationships. Child development experts of the calibre of Warshak, Lamb and others were shouting that long ago. That the system of family justice has conveniently ignored the burgeoning body of child development knowledge indicates just how poorly served the children of separated parents have been. And to think that some fathers don’t even get alternate weekends. It just shows how appalling bad the whole set-up really is. And that includes the solicitors and barristers who shape the expectation in a father’s mind that alternate weekends is all he gets. And only that of course if he’s lucky enough to escape the gulag we quaintly call a contact centre where he’s been confined to see his kids since the mother falsely accused him of child sex abuse or domestic violence.

    The entrenched views in family justice is that post-separation stability necessitates a home with mum and visits to dad, whereas the research conclusively shows that stability of the relationships is far more important than the stability of geographical location. Children do attend school, stay with relatives, friends, go to daycare too. What helps children avoid the negative consequences of being raised by parents who live apart is to create strong, healthy attachments to both parents, the practical realisation of which has been long denied to fathers because of this inability within family justice to truly understand the needs of children.

    And it isn’t rocket science either. It must be self-evident that a father faces immense difficulty in developing a strong parent-child bond when his child only sees him as much as he might see an uncle or grandparent and when he is also having to put up with a recalcitrant and over-controlling mother that dictates this and that as so many do.

    Before people sound off too much about F4J, at least that group helped to bring the attention of the public to this abuse of children. They were far more influential in changing the zeitgeist than say Families Need Fathers who preferred the approach of hobnobbing with judges in the back of taxis and getting precisely nowhere. FNF’s submission to the Justice Review was as pathetic as the review itself.

  19. Can we be certain they are not endemic problems? Any McKenzie will be able to provide a lengthy list of all the tricks and sharp practices which may be used against an LIP. We are all familiar with false allegations used tactically in our own cases and in others with which we deal. I have no idea what percentage of cases this applies to – has anyone investigated?

    LdeB is part of a campaign so it is inevitable he will draw attention to this and less to the more honourable lawyers. I have met lawyers who wouldn’t dream of using these tactics, and others about whom I am not so sure.

    It is interesting that both Nadine O’Connor who now runs Fathers 4 Justice and Kris Titus who ran F4J in Canada both report being encouraged by their lawyers to make false allegations and to use refuges to make the allegations convincing. Those lawyers have a lot to answer for. ;)

    The impression gained by anyone working as a McKenzie or in a campaign group is that dirty tricks by lawyers are a big problem – perhaps this is because we tend to see a certain type of very conflicted case, but if that is true, there is all the more reason not to add to the conflict.

    • Nick, nothing is certain but I’m confident in my own mind that they corruption is not an endemic problem, based on 10 years experience. Again, I think there are a lot of things that are perceived as “tricks” but in fact are no more than a litigant in person feeling the disadvantage of not being represented and not knowing the system as well as the opposing lawyer.

  20. familoo,
    I suppose whatever your, mine and others views of the semantics in the article, as I said in #5 he sums up for many users what is wrong with the family law system.

  21. Thanks Nick Langford (19) – you put it brilliantly. Sadly it’s much the same here in NZ. Our courts are being reviewed but I don’t hold much hope that anything significant will come of it.

  22. Firstly, I agree with Lucy on all of the fundamentals here, that there needs to be some more listening on both sides and trying to hear what the other side are saying, rather than trying to convince them that they are wrong. I also agree with Nick, and that his post merits careful reading and that he talks a great deal of sense here.

    So, this is my attempt to understand what the viewpoint of the USERS of the family justice system in relation to private law disputes might feel.

    I suppose the difficulty here is one inherent in Courts. At least fifty per cent of the clients leave Court unhappy in private law proceedings (and very often both of them, who didn’t get everything they wanted).

    So, if you speak to any individual client about their experiences in family law, their perception will be that they probably didn’t get what they wanted, that it took forever, and that the Courts seemed to be against them. And if you speak to fifty, or a hundred individual clients, you’re probably starting to get a picture that the Courts let all of these people down (and maybe they do)

    The lawyer, on the other hand, who does a lot of these cases, has the perspective that the outcome of the proceedings wasn’t far wide of what was expected and was certainly within the spectrum of judicial discretion, rather than anyone being corrupt, biased, incompetent or hating a particular gender. [Note here, that I am not attempting to say that the lawyer is right and the client is wrong, just outlining the two different perspectives]

    Whilst we have a system where there are ‘winners’ and ‘losers’ in a private law family dispute (as it is without a doubt an adversarial system, and parties go in with a firm idea of what they want and what they expect to get) we’re going to have an awful lot of people who are forced to use the Courts to resolve family law disputes who are bitterly disappointed.

    And hearing from a lawyer that the Judge or CAFCASS weren’t stitching them up, that the decision was not fair from their own perspective but fair from an overall perspective balancing mum, dad and the child – with the child being the most important figure, probably doesn’t help them that much.

    That’s why I think tempers get so inflamed and heated on this, and why I would accept that from the point of view of the user of the service (the parent who wants contact or residence) it can seem like a very flawed, very cumbersome and very unfair process. And if it seems that way for a significant proportion of the people using the process, it probably does need to be addressed. Whilst you’ll never make a service that pleases everyone, making less people unhappy and frustrated is surely a noble aim.

    I don’t have any grand ideas for solving it – I think merely rebranding our adversarial system as inquisitorial (as we’ve done in public law) doesn’t make conflict over the really emotive subject of what happens to your children any less adversarial in practice. Maybe we need to accept that we are dealing with a subject which is one of the most emotionally heated and charged that the Courts deal with, and work on a way to get that emotion recognised and acknowledged before moving on to try to get the child back at the very forefront of it.

    On very practical measures, I think it may be time for a rebuttable presumption of contact to be in the Statute, and for Judges to approach cases on the basis of working swiftly to get to a genuinely meaningful level of contact save in the most exceptional cases; for some proper measures to deal with parents who flout contact orders, and that the Act should say in the welfare checklist at section 1 (3) (f) that when considering how capable each of his parents are, that gender of that parent is not a relevant consideration. [There are things, not inextricably bound up with gender, such as relationship with the child, availability for caring, experience of caring for a child, that are relevant factors, but one can see why some people feel that these are too often bundled-up into the concept of 'mothers are generally better carers for children than fathers' and it may be better to completely remove that bundling-up risk and approach each parent on their own merits]

    I think that some of those things would not make a huge difference in the way that good Courts approach matters anyway, but they might make a significant difference in perception, which is still very important.

    I’m very, very glad I don’t do private law any more.

  23. I hesitated to post this comment for a week or so, but I have decided to post and to offer my thanks for your courage in facilitating this debate ~ thank you Lucy.

    I am writing this freezing to my seat outside courts 39-42 at the Royal Courts of Justice waiting for my turn. I have been here since 9.30am it is now 3.15pm, I am not complaining, I am here as a Lip, trying to hold on to a protection order, I shall not specify which, for myself and my son and I would wait all day and all night too for the chance to plead my case.
    I am the chatty type and have engaged a few other mothers as we sit and wait, a habit I picked up when loitering in the floating pen at the PRFD round the corner. This is, leafing through the bundle, my 26th hearing, so I feel I am just about qualified, as an avid reader of both your book and your blog as I attempt to glean the legal knowledge I need, to add a comment to the list.
    I have to commend you in allowing the Caucus Race to unfold and expose f4j to your readers. I absolutely accept that you would prefer to step back through the looking glass, but please do not underestimate the impact a glimpse into wonderland that these mad ranting comments from f4j afford. You have stimulated a debate which I believe will institute change, I just hope you have the stamina for the long haul that such change may require.

    The inroads the empty vessels of f4j have made into the family courts has given some fathers the opportunity, even after admitting dv and child abuse to evoke the stereotypes f4j bandy about of malicious mothers, knowing they will readily be believed. This is not only causing woman and children to be placed in dangerous situations as protection orders are removed by judges frequently advised by Cafcass officers anxiously wishing to avoid f4j accusations of bias. But are eroding the faith in the courts the domestic violence charities have sought to instil in women turning to them for help.

    Of course not all of this can be laid at the door of f4j, but as it is they that most frequently evoke the spectre of the malicious mother which now stalks the courts, it is hard to avoid drawing the conclusion that f4j bears a large part of the responsibility for the turning of woman away from court process. Women I have spoken to are choosing to flee rather than continue to fight in the family courts, some women are choosing to not even bother much with the law as it is clearly not being upheld and have resigned themselves and their children to living with abuse. Some women firm in the belief that the violence they seek to escape will escalate should they fail to gain protection they seek, are choosing drastic, desperate, lawless solutions, I am no longer certain that they are wrong.
    In the face of this, I ask you to let the comments run, although perhaps without any response and continue to allow f4j to publicly shame themselves in the hope that this may go someway to assisting those they seek to influence, to find a more balanced view.
    As for a healthy public debate about family justice, I am certain this is the way forward, but I fear that for many women and children ~ it may come too late.

  24. 1. The courts are at best sluggish to recognise cases where mothers (and it usually is mothers, though I have to say, not always!) cynically set out to destroy a father’s relationship with his children.
    2. When courts do recognise this, they can be far too slow to take any form of decisive action.
    3. Delay too often is fatal – irremediable harm is done to the children’s perceptions of their father and no reconciliation is possible.
    4. For wholly unexplained reasons, the rather offensive doctrine has grown up that it should always be a last resort to transfer residence from a mother who has impeded contact to a loving and caring father.
    5. The clear public interest in parents obeying court orders, enforced by imprisonment in the face of unreasonable and obstinate disobedience, has been emptied of any meaning by always putting the interests of the children of one family in front of the general interests of society in complying with court orders.
    6. The desire to see parents reach agreement has in some cases meant that courts have simply chickened out of describing some mothers as they truly are – emotional abusers of their children. Child abusers in truth.

    These are legitimate complaints for some fathers and they should be listened to.

    However, it is a massive and utterly untenable jump to go to the sweeping statement that all lawyers and judges are motivated by greed and are content to see injustices like this go without comment. There is NO conspiracy. None at all. There are legions of practitioners who are passionate about children genuinely having a good relationship with both parents. Where pressure groups treat all lawyers as their enemies, they end up forfeiting what might otherwise have been well merited sympathy.

  25. ‘Jonathan & Nick’,
    fair comment indeed imho.

    ‘Andrew’,
    That’s the problem with an adversarial family law system; generally with the parents there is a winner and a loser; plus the children are far more likely to be the biggest losers (a minimised/non-existent relationship with one of their parents).

    A way to redress the children are the biggest losers in the system as present, is to put a presumption of shared parenting in legislation in place. The children are far less likely to miss out on a relationship with both of their parents.

    Your presumption of contact, flouting of contact orders statement and gender declaration in an Act are helpful. But there needs to be again an overriding message that this government, judiciary and the family law system sees shared parenting as the starting point. It certainly won’t suit everybody but for those parents who have circumstances which facilitate shared parenting then it should be promoted at every opportunity by the authorities.

    ‘A Humble LIP’,
    all I hear from your post is me, me, me and an entirely mother only focussed view. Children’s needs are clearly a long way secondary to mothers wants in your view. Fathers are not even on the distant horizon according to your post.

    • Chambers its a bit rich complaining that there is a post from a mum from a mum’s perspective given the amount of material on this and other threads from a dad’s perspective!

      On the topic of the adversarial system focusing on making parents either winner or loser – do you not think that a presumption of shared parenting might just encourage the parental rights based approach which drives so much litigation?

  26. ‘Paul’,
    Your pointless and wholly ignorant attack on Families Need Fathers large part in the campaign for change shows you have little understanding of the interconnectivity between all the equal/shared parenting groups over many years (despite what some of their leaders may want you to believe).

    Please consider concentrating on pushing for change rather than the inter organisation politics which clearly you have little real knowledge of.

  27. Dear Chambers, I’m certainly less averse to there being some concept of ‘shared parenting’ than a lot of people that I know in the profession; but I am under no illusion that a legal concept of ‘shared parenting’ will reduce conflict and litigation.

    Because chiefly what people will disagree about is whether ‘shared’ means a ‘meaningful share’ (and I would not disagree that it doesn’t take a genius to work out that only being allowed to spend 2 of 14 days with your child – if you’re lucky, is not going to result in as meaningful a relationship as the carer who spends 12 of 14 days with their child) or ‘an equal share’.

    And whilst an ‘equal share’ seems to be a tempting prospect, I’m simply not sure how that works in practice, particularly when the child has hit school age. (Is it 3 1/2 days each – in which case one parent is getting weekends and the other is getting some of their ‘share’ whilst the child is at school and not with them? Is it one week on, one week off? What happens when the child has a school trip, or wants to stay with a friend when this would fall in one parents time? What happens if your child wants to do after school activities on a Wednesday, and Wednesdays are always in your block of time?)

    I suspect that the harm to children growing up without a ‘meaningful’ relationship with both parents is worse than the harm in children shuttling between two households and having two homes; but that doesn’t mean that the latter option is one I would race towards.

    I think that there is a legitimate point that ‘half the holidays, every other weekend’ has become effectively an unofficial but widely used ‘rule of thumb’ in private law proceedings as to what a perfectly good father with no valid criticisms being made of him can expect, and that this rule of thumb has emerged through practice and custom and expectation rather than by necessarily it having been determined that this is the right amount of contact for a child to have with a separated parent. And it being a rule of thumb which ends up in a 2 out of 14 versus 12 out of 14 split, this not being a ‘level playing field’ on which the facts of any individual case tend to play out (since even if you’re a flawless dad, you’re only going to get more contact than that if there are compelling grounds for a shared residence arrangement, really)

    I suspect that this rule of thumb has rather a lot to do with the practicalities of private law in the 80s and perhaps 90s that the father would be working, and thus the Court were effectively giving them a significant portion of the block of time they had available to spend with their child. But over years it has settled into an unofficial guidance or starting point from which non-resident parents contact is adjusted slightly upwards or downwards on the circumstances of the case.

    Those all seem to me good points being made on behalf of fathers (and indeed non-resident carers generally), and I would not be averse to some solid research that could be commissioned as to whether that default position of ‘half the holidays, every other weekend’ is really insufficient to meet the child’s need to spend meaningful time with each parent.

    I would not be startled if the outcome of such research concluded that it was insufficient.

    That’s not to say that I agree with a line of ‘equal time’ (as I can see drawbacks to it) but I would agree that it is something that needs to be looked at, and in more detail than it has been at present.

    I was about to be tempted into a ‘scrap any ideological principles about how contact for a family should work, and assess the family on the circumstances of their individual case’ approach, but then I realised that that would just involve 26 week waits for CAFCASS reports, so that probably doesn’t help either.

    Perhaps “When determining issues of residence or contact, the Court must (in the absence of proven child protection or domestic violence risk) approach the determination from the starting point that every child is entitled to a meaningful relationship with both parents and the absences of such relationship is generally detrimental; and the arrangements ought to ensure that the child spends a meaningful period of time with each parent. This does not necessarily mean that an equal share of time will be the right outcome in all cases, but the Court should actively consider whether a relatively (if not precisely) even share of time with both parents would be beneficial for the child before arriving at an arrangement where the child spends substantially more time with one parent than another”

    [Caveat - I suppose there is always a risk that in listening to one side of the debate - that of non-resident parents, one neglects the other side, and that such a form of wording might be perceived to be too much in favour of non-resident parents as opposed to the current system - actually, it probably appears lily-livered and wimpy to the non-resident parent... showing the difficulty of ever arriving at a truly fair form of wording]

  28. familoo,
    I didn’t complain about a post from a mum, the more the better as far as I am concerned. The vast majority of mums as fathers are child focussed and want cooperation for their children’s sake.

    I just pointed out that ‘A Humble LIPs’ post just talked about mothers, it made no mention of BOTH parents being involved with children. The distinct impression was children were an extension of mothers. This stands her apart from the bulk of ordinary mothers.

    The experience from Australia and other Shared Parenting jurisdictions is that litigation drops, as parents know there is little benefit in protracted warfare regarding their children.

    Whereas in England&Wales its generally winner takes all (to put it crudely) so parents are corralled into their respective paddocks for a bloody race to win control.

  29. [...] substantial to be posted I will just report that I’ve had a really encouraging response to my post calling for people to tell their stories – as soon as I am able to find the time I will get this rolling. Category: [...]

  30. I find Andrew Pack’s comments particularly interesting and perceptive. I suspect the ‘traditional’ ‘every other weekend plus half the holidays’ arrangement has indeed become the norm based on an outdated idea of what is appropriate and that it is not necessarily in the child’s best interests. One researcher in this area, Joan Kelly, remarked that the traditional arrangement is ‘based on cultural traditions and beliefs regarding postseparation parenting plans, visitation guidelines adopted within jurisdictions, unsubstantiated theory, and strongly held personal values and professional opinions’.

    The Government likes to present the hallowed 90% of parents who don’t go to court as model parents compared with the dysfunctional 10% (I think it’s more than that) who do end up litigating, but I think it probable that even the least conflicted parents tend to act ‘in the shadow of the law’ and make the sort of arrangements they would expect to be awarded were they to go to court. Further research into these parents would be useful.

    The traditional arrangements ignore the ‘large body of social science and child development research generated over the past three decades’, and are ‘outdated, unnecessarily rigid, and restrictive, and fail in both the short and long term to address [children’s] best interests’.

    Kelly identified that while for most fathers the ideal arrangement is somewhere around equality, or slightly less, ‘a large majority of mothers’ want full physical custody. This means that protracted conflict in these cases is inevitable, and ‘fathers must either negotiate, mediate, or litigate to obtain more than every other weekend contact, and risk being labelled as a high-con?ict or uncooperative parent by the court because of those efforts’.

    (Kelly, J. (2006). Children’s Living Arrangements Following Separation and Divorce: Insights From Empirical and Clinical Research. Family Process, 46(1).)

    • Nick – Yes I’d meant to agree with Andrew about the need for some more research into this. I think it would be really helpful.

  31. I sat on my hands for the best part of two weeks before deciding to post, and then you disappeared! Welcome back, Lucy, I do hope you are feeling better.

    There is already a presumption that children should have a relationship with both parents apart from exceptional circumstances and I think a legal presumption of shared care will just be something else for parents to argue about.. Those families who end up in the courts are mostly conflicted because one (or both) parents lack understanding, empathy and flexibility. Legislation won’t change that. Here in Scotland parents have Parental Responsibility and Rights including the rights to have their children living with them or contact (s2 Children Act (Scotland) 1995) for years but it makes little difference, we still have similar problems as in England & Wales.

    Picking up on Michael’s point about the amount of time fathers spend with children. The EOC research concluded “new fathers want to be more involved at home, taking up more of the caring responsibilities, but their long hours and inflexible workplaces make that difficult. Most mothers want or need to work, but they find they have to trade down to get the flexibility they need.” The reference for the EOC research was the ONS Time Use Survey 2005 where there were problems with the methodology measuring childcare, in that only ‘active’ care picked up was either as primary or secondary activity. Time parents were responsible for their children wasn’t actually recorded.

    Working patterns have not changed that much since 2005. According to ONS employment figures published last year 67% mothers worked in 2010 – 29% full time and 37% part time. That means two thirds of women with dependent children were not working or worked in less well paid jobs part-time or flexible jobs to fit around responsibilities for children. 90-95% of men with dependent children in employment were in full time inflexible jobs and fathers worked longer hours than any other group of men (sorry thinking in numbers is an occupational hazard ;)) LdB said 50:50 shared care was more common in other countries, but countries that have a more equal sharing of child care/work before parents separate tend to have a more equal sharing of child care/work after separation eg Sweden.

    As far a I’m aware there are no large scale UK studies into shared parenting and although there is research from the US there is a problem in that generally psychological studies at least lack validity because they have no relation to an agreed scientific model. So, yes, research is required.

    Matt O’Connor does fathers a disservice with OTT comments that may appeal to his supporters but does nothing constructive to advance the wider debate and undermines the efforts of others. Apparently he is now picking a fight with M&S because it advertises on Mumsnet threatening “Ours is not a campaign that will occupy. Ours is a campaign that will electrify.” Mumsnet and M&S must be quaking in their boots.

  32. The view expressed by some of the posts above that current contact and residence arrangements may stem from an earlier era when fathers only has weekends free, is a valid one. There can be more ‘shared parenting’ now when parents live together so it seems logical to continue this if they separate. Perhaps the current system is based on an old economic model of employment. However in the current economy, the aim for each parent to have a family home is hugely problematic. Often mediators and lawyers are dealing with couples who are sharing out the debts rather than the financial assets of the marriage/partnership. Having two family homes is just so impractical. This leads me to the conclusion that the only answer to your intractable problem is to bring down capitalism :-)

  33. I am an in-house lawyer and have never practised Family law, however I do know something about the rules applying to the judiciary and the legal profession.

    A judge is not, and I cannot emphasise that strongly enough, permitted to refuse access to a judgement. The Office for Judicial Complaints has made this clear on more than one occasion. Any parent who is refused access to a judgement should write a polite letter to the judge pointing out that s/he is not allowed to do that and requesting the immediate provision of the judgement. The parent should make clear that they are reserving their right to make a formal complaint. If the judgement is still not provided write to the OJC giving the case reference details and setting out, politely and concisely, the reason for your complaint.

    As for solicitors or barristers or expert witnesses engaging in corrupt or unprofessional conduct, as Lucy says they may simply by doing their job. However, anyone who genuinely has evidence of behaviour of this kind should not hesitate to go to the relevant professional body and make a formal complaint. The body for solicitors is the Solicitors’ Regulation Authority and for barristers it is the Bar Standards Board. For psychologists it depends on which of the two extant bodies they belong to, and for doctors it is the General Medical Council.

    On the subject of contempt or perversion of justice or perjury, I understand from reading various sources on the Internet that parents who believe this has happened in their case and who have complained to their barrister have been told it is irrelevant. I don’t know how true this is, whether some complaints may simply result from a misunderstanding, but if a witness has genuinely lied on oath no lawyer should be telling their client that that is irrelevant and they certainly should not refuse to raise it either with the witness or with the judge.

    As for local authorities breaching either the Data Protection Act or the Human Rights Act, again this should be raised firstly with the local authority’s Head of Legal Services by way of a formal complaint. If the complaint about breach of the DPA is not properly dealt with a report should be made to the Office of the Information Commissioner with a request that he investigate. Breach of the HRA should be reported to the Local Government Ombudsman by way of a complaint of maladministration. All of these procedures are free to the public, an aggrieved individual can also sue for breach of either of these statutes but that is not free, can be very expensive and drag on for years.

  34. I may be wrong, and often are, but, alternate weekends and half holidays isn’t linked to traditional working hours etc, but I have often heard Judges comment that school nights, full of homework, after school activities, clubs, seeing friends and relaxing after a hard days education don’t count as quality time, therefore all that is left is weekend and holidays. Cut them down the middle and its sorted.

    And, again, I may be wrong, but the concept behind starting off with equality is to show both parents that one of them doesn’t hold all the cards and dictate contact, and it would also show fathers that they are just as important as far as the court are concerned.

    In reality, there cannot be many families where an exact division of time would work, or that the children would benefit from it. One thing missing from all these discussions is that one size does not fit all. I often see NRP’s fighting with everything they have to get more contact ordered, only to realise when they get it that they cant fit it into their working pattern.

    I would also add that being an NRP has its advantages because the child will often look forward to a contact weekend because its special, they will have a better time with the NRP because the NRP will devote their time to the child because its special to them too, and all in all, until something better comes along, its not as dire as it could be. The NRP has to work at their relationship with the child, and when they do put the effort in, the rewards can be quite magnificent.

    And finally, I do find it interesting that whilst Barristers and the legal profession receive such a loathing and hatred from the members of FnF and F4J, it took a Barrister to host the discussion, while FnF stamp out, block and delete any comments they don’t like to hear, and F4J wont even allow comments on their blog.

    Its a funny old world.

    Swiss

  35. Hi Swiss Tony, if any judges think parenting is just about ‘quality time’ and not homework, taxiing children to clubs etc, I’d suggest that’s a rather impractical view. (Not one held by you, I assume)
    Secondly, I agree that it is interesting that this relatively constructive debate has run on a barrister’s blog. Must admit I feared it might not work as intended, so pleased I have not had to avert my eyes.

  36. Julie,

    No, not a view held by me because I quite enjoy doing homework with my son. Admittedly he did get a detention when I assisted with his maths homework, so any Judge trying to keep me away is probably doing a great service to him.

    Swiss

  37. [...] recently I invited you all to share your perspective on things, to tell a story other than mine (original post here). And quite a few of you replied saying you’d like to take part. So here is how I’d [...]

  38. I hear from reliable sources that the censorship at FnF is so extreme that many good members have either left or been banned. So much for Chambers espousal of pushing for change when he won’t even allow contested debate within the organisation he works for.

    Fathers for Justice and their sister groups – and I’m not a member of any of them – pushed the disenfranchisement of fathers into the public eye from whence the possibilities and hope for real change have sprung. The influence of FnF by comparison, has been largely confined to the local courtroom and that’s where the organisation should have focussed its efforts rather then its so-called leaders trying to big themselves up by hob-nobbing with the judiciary and getting nowhere.

    Any self-respecting fathers’ group would never put ‘but only where it’s safe to do so’ in a manifesto for change when that biased Cafcaffesque mantra has been shoved down fathers’ throats for years to the point where many of us are sickened every time we hear those wretched, words mentioned.

  39. Andrew,
    Shared Parenting legislation in Australia reduced litigation as reported by the government commissioned Australian Institute of Family Studies (AIFS) in 2009, 3 years after the reforms were put in place.

    Litigation being reduced by the shared parenting legislation in Australia cannot be disputed, it is a fact as detailed by the government commissioned report.

    As for the details of shared parenting well for many separated families the amount of time did not change and 2 days out 14 during term-time suited their circumstances but for a significant minority children benefited from shared parenting arrangements that shared the care more fairly.

    Equal parenting time in Australia is still for a small minority because simply in many separated families this is not practical due to work commitments and distance etc

    However, the overriding difference is that a message was sent out to all and sundry that both parents matter and are important to children. As a result many parents decided to use alternative services to Courts to make arrangements. The parents knew that the system had changed from a war of winner takes all (as in England&Wales) to a system that for the most part made it futile to fight for overriding control. Parents in Australia are given the opportunity, encouragement and guidance within legislation that both parents matter and children will have substantial time with both parents if practicalities allow.

    No longer in Australia (for the most part) do fathers enter the system believing they are secondary citizens and mothers enter the system believing they have the right to decide and control their children’s relationship with the other parent. Crucially those who work in the system are given the backing and guidance by legislation to treat both parents more fairly for the benefit of children.

    Research shows that shared parenting arrangements work well for children and is the best arrangement for them after separation/divorce. We don’t need to guess, there are studies that show generally it works best for children. Children shuttle (derogatory term) to babysitters, nurseries, grand-parents etc in this country; there is little or no difference moving between 2 homes.

    You make some good points on ‘insufficient’ time. Equal time is only going to happen in the near future in a minority of cases but where it is possible and practical it is a good solution for many children.

    Again, I would say that it is the crucial message to society that both parents matter which is given by shared parenting legislation that will ensure far more children will enjoy a meaningful and strong relationship with both parents. There is no doubt with the overwhelming research detailing this, having children able to have these relationships saves them from substantial (many times debilitating) issues in their lives short-term through to long-term (adult lives).

    Fiona,
    sharing the care and the financial responsibilities of children between both parents before and after any separation greatly helps children and also ensures that both parents and their children have more equal life chance opportunities moving forward.

    Gladiatrix,
    unfortunately what happens in law in general with the checks and balances has little to do with what happens in the family law system. Family law is in the dark ages compared to other areas of law.

    Swiss Tony,
    Again, equal parenting is in the near future for the minority of separated families. Although it will increase as both parents are treated more equally at work, play and at home.

    Starting off with equality means starting off with treating both parents as equally important to their children and then coming to a practical solution for a schedule of care of the children that works for that particular family. It may be what is considered the ‘norm’ today e.g. 2 out 14 nights term-time or it may be equal parenting or somewhere in-between or less time than the ‘norm’. However, it is the practicalities that determine the schedule of care, not the gender of a parent which happens regularly presently.

    Quality time comes with quantity of time. It is very difficult to have quality without quantity.

    Paul Gilson,
    your post again shows that you are ignorant of the big and small picture. I don’t work for FNF either. Please try and focus on changing the system rather than bleating about matters you clearly have no insight on.

  40. Chambers,

    I pity any parent that is unable to spend quality time with their children because they haven’t got the quantity they feel they deserve.

    Quality does not come from quantity. Utter nonsense.

    Many parents, even in secure relationships, and Lucy springs to mind, probably spend far more of their time working and away from the children that she would like, but I bet she manages to extract a quality relationship from what little she has. Its one of the unfortunate parts of life that affects the majority of people.

    It is possible to have a solid, quality and incredible relationship with your child on little time, if little time is all you have. You just need to put in some effort.

    Swiss

  41. Chambers

    I would suggest that the checks and balances do not work properly in the Family Division precisely because people have not made proper and consistent use of them. In addition, complaints that are made are not ruthlessly pursued, viz. the complaint against Munby J which has still not been resolved, and no-one appears to be asking the OJC to explain the delay.

  42. Northern Lights

    Chambers,

    “As for the details of shared parenting well for many separated families the amount of time did not change and 2 days out 14 during term-time suited their circumstances but for a significant minority children benefited from shared parenting arrangements that shared the care more fairly.

    Equal parenting time in Australia is still for a small minority because simply in many separated families this is not practical due to work commitments and distance etc”

    In other words, the Australians who, prior to the current legislation had a much older Family Law Act from the 70′s, now are in the same position as we are with the C.A ’89.
    The arrangements for contact or “shared parenting” are much as we would find here.
    A significant minority share the care of children here too and I regularly see orders made for 5 or 6 overnights out of 14 in our courts where the arrangements are practical.
    A significant factor is the degree of care before the divorce or separation but even where a father starts at no contact, it is generally built up to a satisfactory level. In other words, all your clumsy statistic and selective research quoting and misguided vitriol has been in aid of the emperor’s new clothes.There will always be intractable cases which need to go before the courts and I have to say that if the misguided campaigners from FNF and their ilk had spent more time focussing on making the courts work better,instead of ranting about something as nebulous as “shared parenting” and compulsory mediation, you might have been listened to. There were substantive responses to the FJR from a number of bodies, not least the FLBA which you might have learned from although, I suppose they were just motivated by the unscrupulous, money grabbing lawyers you love to bash.
    If the angry dads brigade really want to promote equal care of children post separation, they could do more to encourage fathers to share care pre separation, rather than just demanding “equality” when it goes wrong. Children are not assets to be divided up like property.
    As for FNF, didn’t they recently come out with a comment to the effect that the only single parents were those where the other parent was dead? I suppose they thought that was a snappy soundbite but aside from the blatant insensitivity to the countless decent single parents struggling to do their best (often with a feckless other half) it gives us an idea of the intellectual calibre of that organisation ( whatever is left of it) Thank God nobody is listening.

  43. Swiss Tony,
    I’ve been a full-time working parent in all of the following; within a relationship, a NRP parent, a Sole Residence parent and a Shared Residence parent.

    Ime the NRP ‘norm’ was insufficient for the children.

    Gladiatrix,
    I think you are probably correct in many respects. The broad area of discretion that Judges have in family law as opposed to other areas of law is a huge problem as well.

    Northern Lights,
    you always seem rather angry and bitter when you post and have an unhealthy obsession with FNF. I suppose its testament to how effective they have been in putting forward the argument for shared parenting.

    Don’t forget NRPs are single parents as well and why would you not have equally as much concern for them as any other parent. Pre-separation the roles of parents is significant but not overriding as on separation parents can and do make changes. Plus these days fathers are caring for their children in similar amounts to mothers and mothers are primary earners or equal earners in many families.

    I think you will find that the coalition are listening and legislation will hopefully happen in the relatively near future that puts children first and foremost by ensuring they have the opportunity to have strong relationships with both parents following separation of their parents.

  44. [...] recently I invited you all to share your perspective on things, to tell a story other than mine (original post here). And quite a few of you replied saying you’d like to take part. So here is how I’d like to do [...]

  45. [...] of the Pink Tape family law blog, Lucy Reed invites readers to share their experiences of working in the family justice [...]

  46. Hello Lucy. Thank you for this excellent post, which I have just stumbled upon. I wholeheartedly agree that personal attacks are despicable and completely unnecessary. However, open debate and rational argument is surely to be welcomed by all those who genuinely wish to see improvements in family law. I, for example, have ardently campaigned for an improvement in relocation law and for an introduction of a legal presumption of shared parenting. In so doing, I, too, have come under personal attack by anonymous posters. One of my open letters features here: http://www.google.co.uk/url?sa=t&rct=j&q=shared+parenting+nicholas+wall&source=web&cd=48&ved=0CIgBEBYwBzgo&url=http%3A%2F%2Fwww.realfathersforjustice.org%2Fnews%2Findex.php%3Fitemid%3D537&ei=XGXcT-LpI4em0AW4y5jcCg&usg=AFQjCNEnPCH_s1O8MUGTgO_bDTgNPbACyA
    Interestingly, just one month later, we had the Court of Appeal decision of MK v CK, in which a review of English relocation law took place. And it took place despite the President of the Family Division, Sir Nicholas Wall, categoricallly stating, just two months earlier, that relocation law could NOT be reviewed by the Court of Appeal! In short, rational and forceful argument can and does have a positive effect on family law, and it should be welcomed. Sincerest best wishes, Bruno D’Itri

    • Thanks Bruno,
      I agree with your points about open debate and rational argument and the value of it.

      I’m not sure I follow the specifics of the relocation example you give however, including the thread of the letter linked to. I think that what Wall LJ had previously said about being unable to review the law in this area was an indication that if there was to be a substantive change in the law on relocation that was a matter for Parliament (which I think is correct), but it remains the case that it is the court’s role to interpret that law as and when it is presented with a particular case with a particular set of facts. The court operates on a doctrine of precedent and can only review a particular legal proposition where necessary to determine an appeal that is before the court. So I’m not sure that I follow the logic. You don’t link to MK v CK but it can be found here. Of course that was not a case that invalidated the Payne approach – what it established was that Payne didn’t apply to cases where there was shared care. The court in that case reviewed the law in the sense of scrutinising whether Payne applied to the facts of that particular case, and determined that Payne did not apply because the factual background i.e. shared care meant it was a different kettle of fish. There has been no change to the law as a result of MK v CK, merely a clarification of it.

  47. Thank you for your kind reply, Lucy.
    The point I was attempting to make was that perhaps our senior judiciary decided to tackle relocation law precisely because of the persuasive arguments being put forward, both within (Mostyn in Re AR) and, particularly, without legal circles.
    With regards to MK v CK, I would argue that it did indeed ‘review’ Payne in the sense that it removed the disproportionate and overriding weight which had hitherto been given to the so-called ‘distress argument’ of the applicant, irrespective of any shared care arrangement that might have been in place. The distress argument is now no longer a ‘trump card’ for applicants.
    Do bear in mind that, in Re D (Children) [2010] EWCA Civ 50, it was the ‘distress argument’ which caused Sir Nicholas Wall to describe the applicant’s case for removal as being ‘powerful’ and therefore unassailable. Furthermore, this judgement was made in spite of the fact that there was in place a ‘shared care arrangement’ of approx 65%/35% (as, incidently, there had been in the case of Payne itself!). Wall reserved judgement in Re D and gave himself three weeks in which to consider the merits of the appeal. And yet, during his long and careful consideration, it did not strike him that the criteria of Re Y should have been applied rather than those of Payne. The LIP father could certainly be forgiven for not being aware of Re Y. Can Wall be similarly forgiven? I would argue not. I would say that Wall – as well as judge Corbett at first instance – failed in their quasi-inquisitorial capacity.
    In summary, I have no doubt that, if a case similar to Re D were now to come before the courts, the arguments for removal would no longer be considered to be ‘powerful’. This is progress.
    It reflects a payne-fully slow and yet inevitable acceptance by the judiciary of the crucial importance of the role of both parents in the successful development of a child.
    Perhaps the interesting question now to be considered is whether – with the expected introduction into law of a presumption of shared parenting – relocation law will undergo even further revision.
    If the future starting point is one in which parents are to share the parenting of their children, post separation/divorce, then, in my view, most, if not all relocation disputes will be assessed using the Re Y rather than the Payne criteria. The factor of ‘shared parenting’ will be elevated to the high status previously held by the ‘distress argument’. Payne will become redundant.
    Bruno D’Itri

  48. It’s all very well to plead for dialogue when you are in a position of power.

    Lucy explains that “both sides” are to blame. This is disingenuous to say the least. Again, it displaces the blame onto parents when the blame lies squarely with a system that allows one party to abuse it so transparently (in spite of the sinister secrecy of the family courts)

    Those fathers and children who have been robbed of their lives (and who will never gain back what has been denied them) have been pleading for dialogue for decades. Nobody was listening.

    And now you ask for dialogue. It’s like Louis XVI trying to reason with his executors. Way too late.

  49. “Michael I have not suggested that every father or every person speaking for fathers is rude or unreasonable, simply that there are sufficient who are to obscure or dampen any debate”

    Lucy, there has been no debate up until recently, and if there is anything approaching what you might call debate now (I rather doubt it myself), then it is all down to those dads who speak up.

    Dads who speak up sharpen the debate, and expose the empty rhetoric of child welfare, and the crimes against children that have been committed by the courts and all those organizations that have sought to keep women tied down to childcare, and to living parasitically off of the state and their former husbands.

    I thought that you, as a self-proclaimed feminist, would have been more sympathetic to the rumblings of fathers, which are simply an after-effect or extension of the rumblings of women in the 60s.

    • Guy I really think that in respect of this and your previous comment on this post you are missing the entire point of the blog post. Can I suggest you go back and read it again? I am not suggesting that the system is faultless, nor that fathers do not have legitimate cause for complaint. And I particularly acknowledge that thus far there has been little constructive debate. I think if you read this and other posts on this blog carefully, rather than skating over it and making assumptions about my mindset you will see that I AM sympathetic to the rumblings of fathers, DO think their contribution is valuable – and not just in terms of sharpening debate – and agree that this is entirely consistent with a feminist worldview. The original post was an express attempt to say : “Look, both “Sides” – professionals and parents – are less than constructive sometimes. Let’s get beyond that.” I still stand by that as an aspiration.

  50. I apologize if I sounded skeptical or critical, but in my opinion saying both sides are to blame is just not fair.

    All too often this cliched language is used to shift the blame off the family justice system and onto the parents (and onto ‘both’ parents rather than the one who irrationally blocks shared parenting and hurts the children irreparably in the process).

    I also think it unfair to represent Matt as someone who un-constructively ‘attacks’ people, and for the media to caricature fathers who wear costumes as lunatics and wife-beaters. That is all myth that is expressly designed to diminish the much-needed undermining of a status quo that hurts fathers and children badly.

    • Guy, I too find it frustrating when assumptions are made that both parents are driving / causing a dispute, when in many cases the dispute is driven by the unreasonable behaviour of one – and the other is left with the hobson’s choice of caving in to something they think will be harmful to their child or of pursuing the matter through the courts. Not all parents relish the dispute.

      As to your comments on Matt, have you read the related post here? You will have to form your own view as to whether or not that constitutes a constructive attack, but I struggle to see the constructive side of it. As for the media caricaturing fathers as wearing costumes – I think that probably derives from fathers…er…wearing costumes and flaunting that to the press! Fathers who are unhappy with that public image should perhaps take it up with the other fathers who have promoted that (and the few who continue to do so).

  51. Just a quick comment on Chambers’ points about ‘shared parenting’ reducing litigation in Australia.

    Australian government put $millions into new Family Relationships Centres which parents seem to find helpful. They are what AIFS suggested were successful, the ‘shared parenting’ legislation was not and is now being reformed.

  52. Matt’s language is unfortunate and impolite, but it is precisely the lack of a possibility for dialogue (and the intractability engineered into the family justice system) that drives the frustration that he and hundreds of thousands of other fathers feel on a daily basis.

    Had he the fortune of your education, he might couch his frustrations in those polite euphemisms that the hypocrites of high society have perfected.

    At any rate, his impoliteness is hardly more inexcusable than the crimes that have been committed against fathers, grandparents and children in this country.

    Matt is like a baby that cries. The question for us is: do we whip him (and go on being animals), or do we try to sort out what’s upsetting him with a bit more compassion?

    Matt is certainly not being constructive here. You are right about that. I hadn’t read that letter you pointed me to. You have to sympathize with him though. For him, “constructive dialogue” effectively amounts to speaking the language of power, and the language that is the spineless politicking of the Fatherhood Institute, which has resulted in no improvement for children.

    You may know of the barrister Jacques Verges’ thoughts on the language of power?

  53. What are the “roots” of the current problems with family law, and how can they be “resolved”???
    Our elected Government plans to bolster the legal right of a child to have a meaningful and on-going relationship with both its parents, post separation/divorce. It recognises that family law, as it currently stands, all too often fails to serve a child’s best interests in this extremely important respect.
    The Children Act (1989) rightly instructed the judiciary to serve the child’s paramount interests. However, the judiciary has singularly failed to understand or accept that a child’s paramount interests are, in the vast majority of cases, actually best served by facilitating and enforcing its meaningful relationship with both its parents. Instead, the judiciary has remained wedded to the archaic ‘single parent’, ‘primary carer’ model; an approach which has, sadly, led to a generation of fatherless children. The judiciary’s approach is out of date and simply does not reflect the modern-day realities of 21st Century shared parenting.
    The aim of our Government’s proposed legislative changes is to make it very explicit to the judiciary that, for most children in litigated cases, ‘best interests’ equates to ‘shared parenting’.
    Let us hope that any amendment to the Children Act (1989) will be robust enough to safeguard a child’s right to be parented by both its parents. Let us also remember that this issue is not about parents’ rights: it is entirely about childrens’ rights.
    Furthermore, let us be absolutely clear that Shared Parenting does NOT, as many critics would have us believe, necessitate a precise 50/50 split of parenting time. This would be highly impractical in most cases. Rather, it is expected to range upwards from 20/80. Another objection from the critics is that it will endanger children. Very plainly, Shared Parenting will only be granted to parents who are not a proven risk to their children. Unsubstantiated allegations made by bitter and disgruntled ex-partners – intent on using ‘their children as weapons’, to coin Sir Nicholas Wall’s expression – should not be enough!
    It is a very great pity that the judiciary has failed to be proactive on Shared Parenting. For example, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas Wall, the President of the Family Division, was presented with no less than 15 contemporary scientific psychological and sociological research reports which demonstrated, beyond all reasonable doubt, the verifiable benefits for children of maintaining close and meaningful relationships with both parents. This irrefragable scientific evidence went ignored or relegated by him. The Government, to whom the scientific evidence was also sent, is taking full heed. This is precisely why our Government – our elected representatives – needs to legislate. Child welfare is far too important to leave in the hands of a few un-elected High Court judges, who often appear to be out of touch with modern society and family life, and who appear to have little understanding of the importance of scientific evidence.
    Best regards
    Bruno D’Itri

  54. That’s all very well said Bruno.

    Sort of makes one wonder why the lawyers (who should be most in the know about these matters) just cannot see anything… and instead continue to flail about aimlessly against shared parenting.

    I suppose though, once you remove the imbalance of power, there will no longer be all that much need for them?

    I’d have put myself into retraining by now…. Corporate law is where the profits are now….

  55. If they were not motivated by money, they would promote shared care, and put their money where their mouth is and send mothers (and some fathers) packing at the first sight of foul play, instead of fostering it, dragging out litigation, and directly causing harm to the children.

    Once again, violence begins in the courtroom, and it is the lawyers who have the blood on their hands.

    Bob Geldof once referred to the whole process as ‘state-sponsored child abuse.’

    There are some exceptions.

    • Guy, much as I love him Geldof does not equal gospel you know. You seem to be operating on the assumption that all lawyers are not merely turning a blind eye but actively encouraging “foul play” and deliberately causing harm to children. I know that isn’t a true reflection of the situation and I think you do to. It does fathers a disservice to cast all the lawyers as the ones with blood on their hands. There are SOME mothers, and SOME lawyers and – dare I say it – SOME fathers who have blood on their hands. The world is not perfect and all we can do it try and make it a better place. For sure it is a better place if we can live our lives away from the courtroom, but the unpalatable jobs still need to be done by someone in society. You don’t blame binmen for waste or gravediggers for death or doctors for ill health. And you don’t blame lawyers for the consequences of family breakdown.

  56. An open letter to Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families, 24 June 2012:

    The Government now recognises that the paramount interests of a child are served by facilitating and safeguarding its close and meaningful relationship with both its parents, post separation/divorce. In reaching this conclusion, the Government has taken into full and careful account the wishes of its electorate, the realities of 21st century family life, and a plethora of irrefragable psychological and sociological evidence and research, collated over the last decade or so, which plainly demonstrates the emotional, developmental and educational benefits for those children who are permitted to enjoy a shared parenting regime. In short, ‘paramount interests’ equates to ‘shared parenting’ (except, of course, in cases where there is a proven risk of harm).

    The will of our elected Government is clear. It considers that the Children Act (1989) – as well, perhaps, as some judge-made laws which followed in its wake – does not serve the paramount interests of the child in its current form and therefore requires modification and improvement.

    However, regardless of whatever modification the Government makes to the CA, it will be the eventual application of the law by the judiciary which will determine whether or not the will of the Government is enacted in practice.

    What, then, is the best way to ensure that the will of the Government is enacted in practice by the judiciary? In my view, the Government should tap unashamedly into the vast legal knowledge and experience of Sir Nicholas Wall, the President of the Family Division, and of his colleagues in the Family Division of the High Court. The Government should, I would suggest, posit the following very specific question to Sir Nicholas: “In order for the will of the Government to be enacted in practice, what modification to the CA can you suggest?”

    Of course, it may well be the case that the judiciary actually opposes the proposed change! Sir Nicholas has, in the past, voiced his personal objections to a number of Government proposals. Nevertheless, it is imperative that Sir Nicholas provides a comprehensive and constructive reply to the specific question above, rather than simply expressing his personal opinion as to whether or not the CA should be modified in order to promote Shared Parenting. Plainly, it is not for the judiciary to make that decision. That legislative power is for our democratically-elected Government. The duty of the judiciary, I would venture to suggest, is to apply the will of our elected Government – to obey Government – to the best of its ability. For it to do otherwise, either proactively or by omission, would be very wrong.

    Sir Nicholas is fully aware of the scientific evidence in favour of shared parenting. He is fully aware of the benefits to a child of maintaining a close and meaningful relationship with both its parents. We know this because, in the case of Re D (Children) [2010] EWCA Civ 50, Sir Nicholas was presented with a plethora of contemporary scientific evidence and research, which demonstrated, beyond all reasonable doubt, the veritable benefits for children of maintaining a close and meaningful relationship with both their parents.

    To his credit, Sir Nicholas reserved judgment in Re D and gave himself three weeks in which to carefully read and digest this very extensive scientific evidence, running to several hundred pages.

    To his further credit, in his eventual written judgement Sir Nicholas accepted the argument put forward by the litigant-in-person that current family law potentially relegates the harm done to children by giving insufficient weight to the importance of maintaining a close and meaningful relationship between children and both their parents.

    In summary, the judiciary is very aware of the serious harm which can be inflicted upon children when they are denied the right to maintain an on-going, close and meaningful relationship with both their parents.

    However, as was shown in Re D, the judiciary was hand-tied and constrained to apply current law. It could not, itself, introduce the new legal principle of Shared Parenting into the CA. Sir Nicholas has made it very clear that only Parliament has the power to do so.

    Those of us who have lost meaningful contact with our children due to current family law – and who live, day by day, in the soul-destroying knowledge that, according to the science, our children’s futures will be significantly blighted as a direct consequence – very much welcome our Government’s initiative on Shared Parenting.

    However, crucially, the Government should do all that it can to ensure that any modification to the CA will be robust enough to be effective in practice. The best person who can advise the Government on this specific point is Sir Nicholas Wall.

    I respectfully request that you advise me whether or not the Government will be seeking the input of Sir Nicholas on this very specific point.

    Yours Sincerely
    Bruno D’Itri

    • Bruno,
      You’ve attempted to post this same letter on three separate blog posts. The text of your letter is very similar I think to other comments you have posted on this blog recently.
      I am happy to host comment from you but I am not going to clutter up the threads with material which has been posted elsewhere.
      I will allow this comment and delete the duplicates.
      Try and keep it fresh eh?
      L

  57. Northern Lights

    Bruno D’itri,

    Haven’t you posted this stuff before on any number of threads? Once again, research isn’t evidence and it doesn’t prove anything “beyond reasonable doubt.”

    Secondly, assuming you are talking about your own case again, producing generalised research documents at a permission to appeal hearing was pointless and I wonder who advised you to use that approach. Either they were utterly misguided and ignorant as to how to prepare for an appeal or you were being used as a puppet; an advertisement for a campaign. Whatever the reasons (I suspect the latter), they did you no favours. If you had shared care of the children before relocation, you might have been better citing Re.Y but I suspect whoever was behind your approach didn’t think it would serve their purpose.

    Lastly, if you wanted to advance the point that children who have relocated are likely to suffer as a consequence, more than those who are forced to remain, you would need comparative studies on that.As far as I am aware, they don’t exist as yet (although LJ Wall suggested a need for them at one point, I believe) and a permission to appeal hearing would not be the place to deal with them, anyway.

    • Northern Lights (and Bruno D),
      I don’t know and don’t care what is being discussed on the FNF forum or elsewhere and I don’t know if Bruno is talking about his own case or not.
      I agree that a case where shared care applied before relocation is one where Re Y is likely to be in point, and in which Payne is likely to be distinguishable.
      I’m not going to host a debate here about an individual case or about the campaign politics / tactics that may or may not be associated with it – so please don’t post anything further along those lines.
      Thanks.
      L

  58. Good evening Northern Lights, nice to hear from you. I hope you are well.
    Yes, you are quite right: I did indeed campaign for an improvement in relocation law for cases in which the care of the children was shared, and I was absolutely delighted to see the Court of Appeal oblige with their judgement in Re K last July.
    I have also been campaigning for the introduction of a legal rebuttable presumption of shared parenting. In response, you were kind enough to comment on the ‘familylore’ blog last July as follows:
    “An automatic rebuttable presumption of shared parenting” That sounds rather painful.
    On a serious note, children who benefit from shared care arrangements generally do so because their parents have been civilised enough to agree matters between themselves”.
    Nevertheless, it appears that our Government has accepted our arguments.
    All the best
    Bruno D’Itri

  59. Northern Lights

    Lucy,

    For the record, I have no idea what goes on in FNF and its forums. I’m not a member and have no interest.
    I’m aware of this case because it has been repeated on various legal blogs I read. I didn’t post it; just responded. Please don’t blame me for responding to spam if you choose to host it.

    • Northern Lights, Apologies if my response yesterday sounded rather tetchy. I hope you know I do not knowingly host spam on this blog and that you are as always welcome to respond. But I’m afraid I don’t host discussion of individual cases where the child or parties may be identifiable. That was the only point I was trying to make, and I sensed that was the direction of travel (as indeed is borne out by another comment by someone else which has just arrived along those lines and which I am about to delete). Keep commenting. :-)

  60. “You don’t blame binmen for waste or gravediggers for death or doctors for ill health. And you don’t blame lawyers for the consequences of family breakdown”

    Oh, but there is a big difference. Bin(wo)men do not go out of their way to get people to make more waste; their salaries stay the same regardless, and the city is the poorer for more waste.

    Maybe solicitor firms need to be de-privatized and rewarded on the basis of how well they reduce conflict and promote conciliatory outcomes.

  61. Northern Lights

    Thanks Lucy and likewise- we were probably both a bit tetchy in our responses.

  62. Northern Lights

    Something like that Lucy. Anyway, no children or animals harmed…..

  63. Northern Lights

    Guy Tearful,

    Family law was never the gravy train of the legal profession- anything but for those doing legal aid work.
    I don’t think it is accurate or fair to say that all lawyers are opposed to shared parenting- I don’t know any that are opposed to the principle. There is a divergence of opinion on the merits (and what some would see as perils) of a change in legislation. . (Marylin Stowe is one lawyer who has explicitly expressed support for a change in legislation) Then there are others who view the current legislation as already providing for shared parenting and that no change in primary legislation is necessary.
    They are all valid voices in the debate but the suggestion that lawyers as a homogenous mass are opposed to the principle of parents sharing the care of their children and have some vested interest in undermining that principle is just plain wrong.

  64. Hello Northern Lights

    I’m glad that matters have been settled so amicably. Perhaps it was the tension of the England-Italy match! By the way, I shan’t tell you who I was supporting, as I may get Norman Tebbitt on my back!

    You say: “I don’t think it is accurate or fair to say that all lawyers are opposed to shared parenting – I don’t know any that are opposed to the principle. There is a divergence of opinion on the merits (and what some would see as perils) of a change in legislation”

    The sincere difficulty I have with your statement is that, if, as you say, the legal profession is, by and large, in agreement with the ‘principle’ of shared parenting, then why would it be against the introducton of the ‘principle’ into law?

    As you will surely know, no such ‘principle’ currently exists in the Children Act (1989).

    It would be very fair to say that many judges, to their credit, take the merits of shared parenting into some consideration when arriving at their judgments (Mostyn J for example). Thankfully, not all judges are completely detached from the realities of modern-day family life! However, crucially, our judiciary is not currently in any way obliged to do so by the Children Act. Consideration of shared parenting is completely discretionary.

    If it is generally accepted that shared parenting is of significant value to children post separation/divorce (of course, in the absence of proven harm) then surely we would be serving the interests of children by enshrining the shared parenting ‘principle’ into the statute?

    I do take your point that the wording of the CA modification needs to be considered with extreme care, in order to avoid difficulties (such as those which arose in the Australian experience). This is precisely why our Government has initiated a consultation. I would hope that our senior judiciary will want to be fully involved in that consultation.

    Bruno D’Itri

    • With respect to your sincere difficulty the problem is that it is almost impossible to convert the notion of shared parenting, which exists inside our heads as an amorphous concept, to a black letter law. The principle undoubtedly already exists, the question is whether it is consistently and appropriately applied.

      The potential problem with introducing it into black letter law is that there will then follow, as with every law that has ever been enacted, a period during which litigants, lawyers and judges will all clamour to try and work out through a series of test cases (in which in each such case a real child’s stability is at stake) what the chosen wording actually means, and will strain to try and establish that it means the same as that amorphous notion in their head, as opposed to the amorphous thing in someone else’s head.

      So you see, it’s not the principle, it’s the wording and the likely effect.

      With respect, consideration of shared parenting is not completely discretionary. The law requires a judge to consider the welfare checklist and that includes a consideration of living arrangements in each case where a residence order is in issue and in many where contact is in issue.

  65. Hi Lucy.
    Thanks for your reply.
    Forgive me if I am mistaken, but you seem to be arguing that family law should no longer evolve and develop!
    It has, of course, evolved and developed significantly over the decades, since the time when children were automatically handed over to their father in the nineteen century!
    With respect, I think we have gone past the question of whether or not the CA should be amended to facilitate shared parenting.
    Like it or not, the Government has considered the scientific evidence and has decided to go ahead.
    The question in hand concerns exactly what wording should be used.
    I agree with you that this should be done extremely carefully, in order to avoid or minimise the difficulties you describe.
    Best wishes
    Bruno D’Itri

    • Family law should not evolve? I don’t think that at all. It does evolve, through case law. And there is nothing wrong with statutory amendments either.
      I entirely accept this change is likely to happen, I just happen to think that everyone will find it does not achieve what it is hoped it will, and that it will be at best a damp squib and at worst will provoke more litigation and unhappiness. I might be wrong, but that’s my feeling. You are right, the Government considered the evidence, although some commentators will argue that they then proceeded to ignore it. The four almost equally awful proposals now on the table just go to illustrate the problem. I don’t suggest the current system is perfect, but I don’t any one of the four alternatives on the table is likely to be a magic fix or even a major improvement.

  66. Northern Lights

    There is a sub text to this entire debate which is being largely ignored; that in order to facilitate any change of substance, massive investment in support services and family courts is needed. Quite the opposite is happening.
    The 4 (in my view worthless) proposed wordings are designed to give the appearance of change when in fact all they will do is give a false sense of optimism to some parents (mostly fathers) whose expectations will be falsely raised.
    Certain groups who see this rather nebulous proposed amendment as the new dawn for which they have long protested, may soon find that the sweet taste of vindication turns to ashes in their mouth when they go to court (if they can get a listing in the ever decreasing number still open)and find that nothing has changed.
    One last point: many talk of out of touch judges being the problem. Exactly how is a cabinet full of millionaires, most of whom went to public school and had comparatively little parental input in their own lives supposed to be an improvement?

  67. Well said Northern Lights. I’m glad that someone has finally come out and said this.

    That is exactly why nothing short of a radical overhaul to an abusive system will work; you can bet your bottom that the same guys who are full of protest now will be at it again once they realize how duped they were in a year’s time.

    Bruno is being terribly optimistic, but one thing I will say in his favor is that his heart is in the right place (at least).

    In reply to your earlier post, which suggested that lawyers are not an obstinate lumpen mass looking out for themselves only, I beg to differ, as the Law Society’s anti- position on shared parenting speaks for itself. There are some exceptions, I’ve always granted that, and you’ve named one who stands out as being a bit more ambiguous perhaps.

    In reply to Lucy’s post, you cannot possibly have more litigation and unhappiness than you have at present. (I hope you are not going to try and tell us now that the statistics suggest only 10% of cases end up in court; that is of course a reductive interpretation that fails to account for all those cases where dad gives up because he has seen what litigation does to his neighbor, his brother, his uncle, etc..).

    • Guy even allowing for those who don’t pursue applications because they think it’s pointless it remains the case that the majority of separated families don’t end up in court. My concern is not particularly that more families will end up in court, but that families will end up staying in proceedings for longer – cases that would have been diverted from court at an early stage will run.

      Sadly I think there is plenty of scope for more litigation and more unhappiness and I think this legislative change is likely inadvertently to provoke that. There will also no doubt be an increase in the number of litigants who give up as a result of the withdrawal of legal aid, so the statistics are likely to be quite difficult to interpret.

  68. Lucy -

    You are contradicting yourself. First you would have us believe that the cases that go to court is a minority (which is not true). Then you express the worry that this minority of cases would draw out proceeedings (which is also not true).

    There is no more evidence to suggest that protracted litigation will be the result than there is to suggest that shared parenting will put an end to protracted litigation, by conveying the message that both parents are to be involved, and woe betide the party who tries to hoodwink the courts by making one application after another.

    You are beginning to sound like Norgrove the economist rather than the child-centered lawyer that you are. (Norgrove’s assessment, as you know, completely forgot all about the child welfare principle.)

    If a system is concerned first and foremost with what is good for the children (which is that they have both parents fully involved), it won’t put child welfare second best to a concern over the few cases (as you have it) where litigation is dragged out.

    Sure, there will be adjustments, but we would not want a system that cannot evolve in step with scientific research that suggests that children flourish when their dads are involved.

    • Guy,
      I don’t see that it’s a contradiction. What it is is a statement you disagree with, which is fine. Such evidence as is available suggests that it is the minority that go to court – around 10% (see here: http://legalliberal.blogspot.co.uk/). What that evidence doesn’t tell us, as you rightly point out, is why individual cases don’t go to court.

      You are correct to say that I express a worry that some of the cases that do go to court would end up running longer – of course there is no hard evidence for this, which is why I expressed it as an opinion based on my experience over 10 years of dealing with those cases. I’m certainly not an economist (as it happens I’m not sure Norgrove is either).

      You seem to fall back on the welfare principle to say that the courts won’t let things drag out – but the thing is we already have that and those who argue in favour of the changes say that it is the courts failure to apply it properly that means that we need these presumptive amendments. You can’t have it both ways, which is it? Do the courts properly apply the welfare principle or not?

  69. It is a big lie to suggest that this affects a minority of people. As you know, that leaves us with the dangerous impression that the emergency at hand can be demoted to a minor ailment. It cannot.

    Even if statistics were worth anything, there is the indisputable fact that children’s lives are enmeshed in so many other lives, and too many of them are growing up emotionally crippled on account of Britain’s promotion of the single-parent family over the last half century.

    More to the point, you don’t un-clog courts by reproducing an unjust and untenable family justice system, and perpetuating an imbalance of power; you un-clog them by making it very clear that the court will tolerate neither parent exerting any form of control over the other. You un-clog the courts by sussing out the intractable ones. Judges are very good at doing this, but not very good at imposing the necessary jail sentences that would deter litigation.

    • So judges are good at sussing out the intractable cases but not so good at imposing custodial sentences. How does a presumption of shared parenting assist with that problem as you have defined it? The problem you have identified is that the judges don’t punish as they should and that won’t be made easier or more effective as far as I can tell by adding some blurb to the start of the children act (which is, by the way, not relevant to committal applications where the welfare of the child is not paramount). The reason that courts tend not to sentence in this way is because it is very likely in many cases to have such an adverse impact on the child that it is not appropriate. Shared parenting or not this job will not be made easier.

  70. Why does putting mom in jail have an adverse impact? This argument is heard all the time, and is frankly a bit boring and sexist. Dads are put in jail all the time, but nobody seems to care. Dads are out there earning a living for their family, and therefore absent all the time; nobody questions that. The only adverse impact is when mom comes home from jail and says “daddy put me in jail,” in the hopes of alienating the child further. And that is just further proof that dad needs to be made the primary caregiver, and mom treated. As far as the child is concerned, dad can provide the care until mom gets help.

    • Er, mainly dads are put in prison for committing pretty serious unrelated offences? There might be lots of personal and social reasons why people offend, but ultimately doing something that gets you banged up is a bad parenting choice in my book and one which will adversely effect their kids because of their choice (I should say the same applies to mums in prison for criminal offences).

      And it’s naive to suggest that its easy peasy to put mum in prison because the child can live with dad – in many of these cases the father is not in a position to care for the child or doesn’t have suitable accommodation (often even with an alienating parents there is some basis in the concerns raised by them which has ended up getting grossly exaggerated). But even if that isn’t the case it’s a massive upheaval for a child to be uprooted from his home and transplanted, probably for a short period, to a parent he may not know well, who he has perhaps been told unpleasant things about or is fearful of, missing his primary carer, perhaps a change of school? Add to that the “your daddy sent me to prison” effect and you can see why it’s something judges often shy away from.

      I’m not saying a custodial sentence is never warranted or that it shouldn’t be used more often, but the slightly caricatured scenario I’ve sketched above demonstrates I think why it is often difficult to make this an effective motivator for change.

  71. Hi all

    Northern Lights is absolutely right. The development or otherwise of Family Law should NOT be in the exclusive hands of very rich people, who went to public school and had comparatively little parental input in their own lives. I assume that he is including the High Court judiciary in this group?

    Regular backbench MPs, of every political persuasion and class background, have been regularly introducing and signing Early Day Motions in favour of greater parental rights for both parents (see, for example, EDM373). They have done so in large part in direct response to the concerns raised by their electorate.

    Most (if not all) MPs are in regular touch with their electorate. Furthermore, they are entirely accountable to their electorate.

    In complete and utter contrast, High Court judges are neither in touch with, nor accountable to, ordinary members of the general public.

    Recently published statistics show that the senior judiciary eminates predominantly from the exclusive public boarding school / Oxbridge system. I can quite imagine that they were probably nurtured only by their nannies! How can they possibly be expected to fully comprehend the dynamics of normal, modern-day family life and the extensive day-to-day involvement of regular dads in children’s lives?

    Thank you for making my point, Northern Lights.

    Bruno D’Itri

    • Bruno,

      Those MPs who don’t think that there is a problem with the existing law won’t need to bother with EDMs, so self evidently only those seeking reform will be bringing such motions. I’m not sure how many of the electorate would agree with you on the accountability point!

      I don’t know if you appreciate that there is a reason why judges are not accountable to members of the public in the same way as politicians. It is part of our constitutional set up that we have a part of the system which is accountable through a democratic process (Parliament) and a part of the system which is not subject to the pressures of the political system and thus not at risk of being swayed by it. That’s the judiciary. They keep the executive (the Government) in check by ensuring that the law is properly applied. Now, we can argue about how well they do that job, but there is a good justification for the relative security of office that judges enjoy.

      You are right though that some judges are out of touch. But in my experience most of the district and circuit judges who do the vast bulk of the work are really quite well in touch. And although I’m not one of them I know from experience that even ex-public school Oxford graduates can function quite normally in modern society. I can be chippy too when justified, but I don’t think the entire judiciary is packed full of dysfunctional repressives whose primary attachment is to the wet-nurse.

  72. None of what you have said above dissuades me in the least from thinking that parental alienation, when obvious, warrants being treated as a serious crime, and punished with a custodial sentence. The objections you raise are minor obstacles or irrelevant in most scenarios. Employers will just have to get used to the fact that dads need more time off to take care of kids who are being abused by their moms. It’s one of those adjustments in pursuit of a better world, isn’t it?

    The “child abuse in slow motion” that we have condoned for too long has led to at least two generations of emotionally crippled children.

  73. Hello Guy

    Thank you for your very kind compliment! I have just examined myself and, yes, I am pleased to report that my heart does indeed appear to be located in the correct position: in my thorax, just over to the left!

    In general, I do try to follow the excellent example set by Voltaire’s eternal optimist, Dr Pangloss!

    The truth of the matter is that, whilst I have no reason whatsoever to doubt the sincerity of Tim Loughton, Maria Miller, Brian Binley, Charlie Elphicke and all the other Members of Parliament who wish to see greater shared parenting, I am nevertheless very worried indeed that the senior judiciary may attempt – proactively or by omission – to scupper our Government’s will on this matter.

    I agree with Northern Lights and Familoo when they say that there is a significant risk that the amendment to the CA, in its current form, may not produce the desired effect in practice.

    That is precisely why I have recommended that Sir Nicholas Wall and his colleagues at the Family Division are actively consulted on this matter. With their extensive knowledge and experience of family law, they are surely the very best people to formulate the most effective wording. I hope no one would disagree? If not, then let us all call on the judiciary to assist, in the best interests of child welfare.

    If the judiciary does assist with the wording, it cannot afterwards then say ‘I told you so’ if things don’t go the way the Government hopes.

    I rather suspect that Sir Nicholas is planning to sit back and avoid getting involved at all costs. Instead, he may be getting ready to say ‘I told you so’. For the sake of our children, I hope I am wrong.

    Bruno D’Itri

    • Bruno, I don’t think that the judiciary are likely to get involved directly in the business of legislative drafting because thats the politics side of things. They have to maintain some level of judicial impartiality, albeit that such a notion appears to be in decline of late.

  74. Hello Familoo

    May I just say that I am very much enjoying this open, friendly and constructive debate! Thank you for providing such an excellent platform! I also very much appreciate your excellent turns of phrase, particularly the one about wet-nurses! It did made me chuckle!

    As it happens, I do understand the role of Government versus that of the judiciary. In fact, I was fortunate enough to have it explained to me in some detail by Sir Nicholas Wall himself! He told me that it was for Parliament to change the CA, not the judiciary. He said that Parliament could, in theory at least, do whatever it wished with regards to new legislation. He said that it was the role of the judiciary to apply the laws set down by Parliament in a fair and equitable manner. He told me that the Government often appeared at the Court of Appeal to argue a case, and that sometimes it lost its case because the judiciary was bound to apply the law in a fair manner. This is the check of which you speak, Familoo. I applaud it wholeheartedly. We are truly fortunate to live in a great ans free country.

    However, I think that you do a disservice to our great democratic tradition, and particularly to conscientious Members of Parliament, when you speak about the Government swaying to public opinion! A kinder and fairer way to put it would be to say that the Government responds with careful consideration to the wishes and concerns of the public. If it did not, we would be living in a very dangerous country indeed! It actually takes a lot to convince the Government to change legislation: they do not agree to do so on a whim. And it takes convincing rational argument and sound evidence.

    I can well understand the grievance felt by many who work in the family justice system: from judges to solicitors. In general professionals do not welcome Government ‘tinkering’! Teachers, doctors and bankers are expressing similar feelings at the moment!

    However, a profession must not be permitted to govern itself – if so, their vested interests would, quite naturally, begin to work counter to the interests of society. This is the check of which I speak.

    Bruno D’Itri

    • Bruno,

      I think you do live in the best of all possible worlds, but sadly its not one that Parliamentarians inhabit. It might be said that policy in this country seems more to be driven by Daily Mail headlines and fear of the reactions of interest groups than it is by evidence based research.

      I’m certainly not adopting any position based on grievance at governmental tinkering. There are lots of areas of family law where I’d welcome some legislative reform, but which are unlikely to be dealt with because they are not politically expedient.

      I agree a profession must not be permitted to govern itself. That’s why we have an appellate system, the European Court, the Office for Judicial Complaints and a power to remove judges from office.

      I’m beginning to find your insistent politeness rather disconcerting. I’m not sure if you are serious or not. It’s all a bit surreal.

      Lucy

  75. “Well, my dear Pangloss,” said Candide to him, “when you had been hanged, dissected, whipped, and were tugging at the oar, did you always think that everything happens for the best?”

    Not sure that Voltaire had a great deal of respect for your eternal optimist, Bruno…. He might have enjoyed seeing some heads roll though.

  76. Nick Langford

    “even ex-public school Oxford graduates can function quite normally in modern society”

    Well, thank God for that; I was getting quite worried. I even leave the loo seat down on occasion.

    Can we expect a guest post from John Prescott any time soon?

  77. I do try my best to be polite and respectful! I was raised that way by my father… as you see, paternal input is very important!

    On the serious question of whether or not it is right and desirable for the judiciary to contribute to the wording of the CA amendment, here is the Government’s link for giving one’s contribution:
    http://www.education.gov.uk/consultations/index.cfm?action=Respond&consultationId=1825&menu=1

    You will notice that, in one section, it asks if the contributor is a member of the public, a solicitor or a judge etc.

    Clearly, therefore, the Government wants and expects to receive constructive input from the judiciary.

    Why, then, would our most senior judiciary not wish to contribute? If Sir Nicholas Wall and the other senior judiciary decide not to contribute, the final wording would surely be all the poorer and ineffective for their omission.

    That is why I believe that Sir Nicholas and the others at the Family Division should be actively petitioned by the Government to make a proper and oonstuctive contribution to the wording, in order that we get the legislation as right as possible.

    For Sir Nicholas to refuse to constructively participate would surely be a disgrace. My suspicion is that he plans to sit back and wait for the thing to fail. I hope I’m wrong!

    PS: don’t forget to make your own contribution!

    Bruno D’Itri

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