Saturday, 1 September 2012

PAS, Facts, Judicial Reasoning and Snake Oil

In 2010, I was at an event where Lord Justice Wall gave a speech, and stated that decisions in family law are based on fact. For anyone who can see through the illusion, they're not. 

The trial judge's impression of the parties in court often forms a key part of the judge's reasoning. However... surely opinion shouldn't be deemed fact, even when it is an opinion held by someone as lofty as a judge. On that reasoning, we might still believe that the earth is flat, or that David Icke represents the second coming. It's subjective opinion, and nothing more.

Harsh? Consider that a parent's presentation in court ... whether angry, anxious, nervous, stressed or calm... might arise and be caused by a whole manner of different things. The fear of a formal court setting. Stress at a perceived risk of losing their relationship with their child. Tiredness from not sleeping. A specific learning difficulty impacting on how they reply to questions (which might make them seem less intelligent than they are, or worse, disingenuous). The judge however will observe their demeanour, form an opinion, and that opinion within our legal system, then becomes FACT... and too often can become a legal judgment on that person's character outside of the court, and more... their capability as a parent/human being. 

Consider this. When matters go to appeal, the appellate judge does not re-examine the parties/witnesses to form his own opinion. He/she will take as fact that the judge's observations that the mother is hostile, or the father an angry man, or their verbal evidence wasn't credible... the mother/father was not a credible witness. Hard evidence can be re-examined, but this most flimsy and subjective and sometimes crucial component of the balancing exercise is blindly accepted. The trial judge's 'opinion' in this is almost unchallengeable, by virtue of  their 'wide ambit of discretion' which remains fiercely defended by both Court of Appeal and Supreme Court precedent. Dangerous to justice? Oh absolutely!

The basis for judicial decision making in the family courts is not 'beyond all reasonable doubt', but whether something did or didn't happen is decided on a 'balance of probabilities'. Within that 'balance of probabilities'  a major component in an amateur (judges are not psychologists) evaluation of honesty and character (the observation of the parties on the stand). However... if the court finds that something was more probable than not, in family law, it is then treated as fact. Scared? Well you should be.

Is this article a 'pop' at the courts. Actually no. We're dealing in facts. but don't buy the 'opinion' that decisions in the family courts is based on fact. That cannot be guaranteed by the President of the Family Division of the Court. It is in FACT a lottery based on a very 'unscientific' system which arguably hasn't moved on from the village ducking stool.

It worries me too that we may see fewer finding of fact hearings as the Government and judiciary seek to save money by cutting down on court time. Where child/parent relationships are affected by allegations, there should be the opportunity to not only to defend against allegations, but to have the allegations judged against a more robust threshold of 'beyond all reasonable results'.

On the other side of this merry-go-round industry, are people who confuse campaigning with case management, and in doing so mislead vulnerable adults and risk damaging their cases. An example is some of the internet spouting (and the 'professional advisors') on something called Parental Alienation Syndrome. 

Parental Alienation is where children are manipulated by one parent to hold unreasonable and strong, negative views about the other. Do I think that children can be manipulated? Yes. The courts in some cases accept that children can be poisoned against one parent. In my own childhood, I saw friends poisoned by their parent so they end up hating a father or mother. Parental alienation IS recognised by the courts in judgments (finally). Parental alienation (an odd phrase since it should really be called Child Alienation or Parental Alienator) does occur, and there's no doubt in my mind that it's a factor in some cases, and a degree of it exists in many cases (one parent 'slagging off' the other in front of children, and involving the children in adult arguments). But... but but but, there are 'practitioners' who persist in advising parents that parental alienation is a medical syndrome, and implying it's a condition which is internationally recognised, yet the psychological community refuse to recognise parental alienation as a psychological condition. Despite considerable campaigning, it won't be going into DSMV.

Does it really matter whether you call it a syndrome or not? We're arguing over a term... not the outcome. Yes and no. In a private conversation, between Joe Bloggs and his mate... no. When such terms are used by people claiming to be medical experts, who in the same breath are advising people on case management and structuring their case for court, absolutely it does matter. It angers me when I see people told to go into court claiming their child suffers from a condition which doesn't exist, either medically or legally.... and their getting charged for this advice.

Let me say this clearly... parental alienation as a SYNDROME does not exist. That doesn't mean that efforts shouldn't be made in campaigning for parental alienation (as a psychological syndrome) to be officially recognised. However, until that day comes, it isn't a syndome.

If you believe the other parent's behaviour is impacting on your child's welfare and their relationship with you, then tell the court this, but leave the diagnosis to real experts and don't risk having your court time wasted in arguments over terminology.

More than this, don't get caught up believing that there is some international feminist conspiracy to stop parental alienation syndrome from being recognised by psychologists (such garbage is spouted on social networking sites). Don't be led to believe that Governments want to destroy the family to weaken society... and all manner of rubbish that some of these people spout. Don't divert yourself in following the authors' paranoid delusions (oops... I'm diagnosing now) rather than focusing on the merits of your case, and the valid, child welfare related arguments. Don't be exploited, at a time when you'll be at your most vulnerable. If you want to campaign on PAS, do so after your case is concluded... but don't let that campaigning interfere with the more important thing, your relationship with your child and your presenting the best possible arguments to the court.

So... what is the link between these two seemingly opposite sides of a same coin? The judiciary and campaigners both claiming things are facts, when they're not. It shouldn't be happening... surely the vulnerable parent, and their children deserve better.