A while ago, Iain Duncan Smith was quoted in the Telegraph on
the subject of fatherlessness in society, and how the legal system had
failed a third of children who had lost contact over the last 20 years.
It's wrong to lay the blame solely at the doors of the courts.
Successive Governments haven't treated the issue seriously or with
sufficient thought.
Over 2,000 years ago
there was a judgment given, where Solomon faced a bitter custody
dispute. Not much has changed in the years since. Human nature doesn't
change. People behave badly. People get caught up in disputes, and
anger, revenge, spite and a long list of other unpleasant human emotions
come to the surface. As one sage judge said on the issue of fact
findings and allegations (we do love Mostyn's judgments) 'if parents were behaving well, they'd probably still be together'.
The
Government is naive if it believes that mediation alone is a panacea to
fatherlessness or will soak up the mess left by legal aid cuts. Lay
advisers and members of the legal profession see the full ambit of
unpleasantness in the courts. I've seen a number of extremely unpleasant
cases recently, where before matters had gone to court, one parent was fabricating evidence to stitch up the other, then calling
the police or social services. The Jeremy Kyle world sadly exists, and
isn't limited to the working classes.
I
agree that adversarial family law fans the flames of parental hostility,
but it's naive to think that it's the cause of parental hostility, or
that the carrot without the stick is sufficient to resolve many parental
disputes. Statistics suggest that 10% of separating parents go to
court, while a further 30% fail to agree any arrangements (lacking the court's involvement). Could it be
that fatherlessness may be reduced by more parents accessing the
courts? Could it be that an imperfect system is better than no system at
all?
Where is the support for parents who cannot
afford a solicitor, whose numbers are to be swelled by tens of thousands
next year once legal aid goes? What access to justice for them?
45,000
are to lose legal aid. Courts are closing. Court delay more likely due
to inexperienced litigants in person eating up court time. The
Government's plans are likely to save some money (if only from the
reduced legal aid bill). Has any consideration been given to replacing
that support, and giving parents the depth of knowledge they need to
make informed decisions should mediation fail? What we saw yesterday was
a useful links page to third sector organisations, but nothing in
practical terms to support parents whose ex-partner says 'no'. Nothing
to support those falsely accused whose world is at risk and who need
legal advice. Nothing to support those who come home and find the house
empty and their children gone... and the list of more complex but fairly
routine scenarios goes on.
...and consider what a
falsely accused parent faces, which will become worse next year. The
accuser receives Government funded legal representation. The accused not. No equality of
arms, and I fail to see how their right to a fair hearing is protected.
Consider the risks... loss of children, loss of home, and findings made
that destroys their character... all judged on a subjective balance of
probability in a court under pressure, and where the accused lacks the
legal guidance afforded to their alleged victim. No checks and balances. Will the prospect of free legal aid encourage false allegations?
On
a good note... consider the benefit to Government statistics... we'll
see headlines that Government policy has led to more successful findings
against perpetrators of domestic violence...
The
cost to society could be many times greater than the short term
financial savings that the Government hopes for. We know that
fatherlessness is linked to higher incidences of crime, teenage
pregnancy, poor mental health, addiction, lower performance at school
and other societal ills. Such are the findings of Iain Duncan Smith's
Centre for Social Justice. Will mediation fix Broken Britain? Will the
Government's new app, which is little more than a useful links page,
give parents the tools they need to safeguard their children's
relationships? No. Not for many. Not for thousands.
Can those third sector organisations deliver the support that's needed?
Will they have the resources to meet demand? Could you fit 1000 parents
in your local pub for a monthly support meeting? Are there sufficient numbers and sufficiently knowledgeable volunteer advisers to offer support to 45,000 parents next year?
We
hope the Government has something else up their sleeve, but we found
nothing on that app, and have seen nothing in their publications to
suggest they have meaningful support for the parents who find mediation
doesn't work, and where a solicitor is unaffordable.
Is the Government's policy to hope that thousands of
years of human nature can be reversed overnight? Surely the biggest
social gamble in my life time. I may be being harsh, but they may be
being criminally negligent.
Mediation can work, but
there also needs to be access to justice where it fails. Access to
justice is about to become harder. I wonder how many parents won't
approach the courts because they simply don't know how to, lack the
necessary information and feel overwhelmed.
On a
good note... consider the benefit to Government statistics... we'll see
headlines that fewer parents are resorting to the courts...
What
we may see next year are the ranks of fatherless children swelled by
those whose parents no longer qualify for legal aid, and a hopeless situation for
those whose parents face false allegations. Broken Britain perpetuated,
or made worse by this Government due to a mix of poor advice, wishful thinking and a lack of planning and resources.
