Sunday, 4 May 2008

Court admits flaws in family law

A family law case in the Court of Appeal has recently featured in the Times and Telegraph. This case once again highlights the faults in our legal system and how judges reward malicious parents who use their children as a weapon with no regard to the emotional and psychological damage caused.

The frustration is clear in the judge's summing up: “The father complains bitterly, passionately and with every justification that the law is sterile, impotent and utterly useless - we have to acknowledge there is a degree of force in what he says." Lord Justice Wall is widely respected for common sense judgments, but even his hands are tied by a system that doesn't work. In this case, the mother is rewarded for poisoning her child's mind, and the child left with a parent who is prepared to cause them emotional and psychological harm.

LJ Wall's comments echo those of another courageous judge, the Honorable Mr Justice Munby, who made similar comments in 2004. Nothing has changed since then.

The 2006 Children and Adoption Act was intended to give the Court powers to help address residency and parenting time disputes "in the best interests of children". A wider use of Family Assistance Orders and counselling were intended to be among the measures to help assist in resolving differences, while community service orders would be a 'stick' should the abusing party fail to consider their child's welfare and need for both parents. Two years on, the Government still hasn't brought this legislation into force.

Parental alienation and repeated breaches to contact orders harm children. Such behaviour deprives a child of parental love and ongoing nurture and relationships with half their excluded family. Cognitive manipulation by the hostile parent causes confusion, anger, hurt and can lead to a distorted perception of relationships for the alienated child. There can also be feelings of abandonment which cause the child long term attachment problems which persist into adulthood and their adult relationships. Children learn from their experiences, and we encourage long term social problems each time we let a malicious parent use their child as a weapon. Our legal system wrongly rewards such behaviour.

Rather than punishing parents when the damage is done, the Government needs to consider preventative measures which reduce instances of parental alienation and hostility. The countries that polled at the top of the 2007 UNICEF Report into Child Wellbeing opt for the sharing of residence and care as the standard outcome post separation. Our own country, with our harsher, punitive and adversarial laws was found to have the unhappiest children in the developed world. Small wonder when we encourage parents to fight, and children to live in an emotional warzone.

The judiciary need to take a stronger stance against instances of broken contact and parental alienation, and accept responsibility for the problems caused by their judgments. It is time that Sir Mark Potter, the President of the Family Division of the High Court introduces practice guidelines to prevent the Court from having to publicly admit such failures in the future. How can the public have faith in our legal system when the most senior judges admit to its flaws and judgments are inconsistent.

There is no reason why shared residence could not be the default position under current legislation. Some judges do recognise the benefits of shared residence while others state publicly that 'shared residence orders are rarely made in this court' or 'I don't believe in shared residence'. Due to the lack of direction for judges it remains a lottery as to what judgment a parent seeking residence will receive. It depends on the judge's enlightenment or individual prejudice.

The legal profession need to be instructed through practice directions implemented by the Family Law Society to advise parents in every instance that mediation services are available to resolve residence and contact arrangements and disputes. It's scandalous that only one third of separating parents are made aware that mediation is a viable alternative (according to the Legal Services Commission in 2007).

There is a simple solution to the problems in family law:

  • Shared residence being the automatic default position when parents separate unless there are proven reasons as to why such arrangements are unsuitable. This wouldn't require a formal hearing, but either parent could approach the Court's administration department making them aware of the separation. The Court would then issue a Shared Residence Order and a contract of arrangements and responsibilities for each parent. This would include the division of holidays, and a pattern of contact at each household to include weekend, holiday and midweek time.

  • The contract of responsibilities would include information which sets out that neither parent should denigrate the other in front of the child, that such behaviour causes children harm, and provide the steps that the parents should take should they wish to vary the order.

  • There needs to be an ending to the current pattern of weekend only contact for one parent while the other has the midweek time. The Government's own research has proven that children benefit from both parents being involved in their schooling, and this pattern of contact causes children to be educationally and developmentally disadvantaged.

  • Parents could apply to the Court to step outside of these terms, but must self fund or self represent, and costs will be awarded against the party who applies if the request is deemed to be unreasonable.

  • It should be made clear to parents that a variation to arrangements are their responsibility, mediation should be made freely available (divert the legal aid budget to make mediation free). This would mirror the system in Sweden;

  • If parents won't follow this process, there should be three steps to resolution - 1. mediation - 2. community service (for the party in breach) - 3. sole residence awarded in favour of the aggrieved party. Parents should be made aware of these steps at the point of separation. The process for resolution via these stages should take no more than three months. Time is critical in a child's life, and too often the length of time that proceedings take leads to children being left in less than ideal situations;

  • Allegations of abuse or domestic violence should be based upon the same burden of proof as exists in the criminal court. Within family courts the burden of proof is too low when allegations are made, which too often leads to miscarriages of justice. If abuse is proven, there should be punishment as a deterrent. If the allegations are proven to be false, the accuser should be punished. It must be recognised that false allegations of child abuse are unacceptable and can lead to significant child suffering and be an act of abuse itself.

To read the TimesOnline and Telegraph articles, click on the following links:

'Vengeful mothers leave good fathers powerless to see child, says judge.' - The TimesOnline

'Fathers powerless against vengeful mothers' - The Telegraph