Saturday, 7 September 2013

The Times Today reports Systemic Failings in the Family Court

There was an interesting article in the Times today, speaking of systemic failings in the Family Court, which refers to a case where the father's contact had been breached repeatedly by the mother, and the father awarded indirect contact as a result. While it's primarily fathers who face such issues, this week I've had occasion to speak to two mothers in the same situation this week. In such cases usually the father is failed, sometimes the mother is failed, but it is always the child who suffers.

Thankfully, in a rare case reported by the Times today, Lord Justice McFarlane ordered the father's case to be re-heard, and in an even rarer judgment, ruled that the father's right to family life had been breached. We would argue, so too had the child's. He goes further by he has never heard of a case where the family justice system had failed a parent so utterly. We have, and many cases.

This week too, I've written other blog articles highlighting concerns that the loose wording of the Children and Families Bill does nothing to address these problems. Worse, the sloppy wording and omissions mean that the (too little used) contact enforcement measures introduced by the Children and Adoption Act 2006 (inserted into section 11 of the Children Act 1989) are not even changed to include the new Child Arrangement Orders, leaving amiguity as to whether these would be covered by this part of the Act. Note that in 2006, Parliament 'forgot' to grant judges additional powers to enforce shared residence orders due to wording which limited these powers solely to enforcing contact orders.

This case is a prime example of how the lack of definition of 'involvement' in the Children and Families Bill will make no difference to such cases, ignores the wishes of the vast majority of the public (some 88% believe the law must change according to a C4 poll), and fails children and families. The Government have failed them, in refusing to address this problem, the courts have failed them, and the campaign and lobby groups have failed so far. We suspect that the House of Lords will fail them too (we are now awaiting the Committee Stage in the House of Lords, to consider the Bill's wording).

Consider too, that the low hurdle of evidence in the family court, where allegations are considered on the low test of a 'balance of probability' rather than a need to prove them 'beyond reasonable doubt' (seen in criminal cases) means that false allegations can stick. A judge can be swayed by crocodile tears, and sever a child's relationship with a parent based on nothing else (the parent's demeanour in court is considered part of 'evidence').

Note that in the featured case, the father had been awarded 'indirect contact' prior to successful appeal (after 10 years of fighting to get justice). Arguably, the new clause in the Children and Families Bill was satisfied, as a letter, a few times a year and receipt of  school report would seemingly satisfy the requirement for 'involvement'. This new Bill serves neither justice or families.

Parliament and the House of Lords should revisit the call for a 'rebuttal presumption of shared parenting' in legislation. This wording allows the court to make other orders where it is found that a child is at risk from one or other parent, but more clearly impresses the public's expressed wish (supported by child welfare research) that shared residence be the starting point and the norm, as it is in society (research carried out by the Equality Commission in 2008 found that care time between mums and dads only differs by 15 minutes a day... shared care is normal, and children of separated parents should not be disadvantaged when compared to their peers).

There is a perception by the public that all in the legal profession are resistant to change. This is not true, and it may surprise people to learn that I get as many emails from legal professionals frustrated by the court system as I do from parents. I also get emails from social workers who want our system to change. Clearly, Lord Justice McFarlance too now accepts that the courts fail to uphold justice for children and families. We see good judgments too, but it is the inconsistency which requires more clearly defined legislation to make justice assured for all. The legal profession's representative bodies need to start listening, as does the Government, and the Family Justice Councils, and the House of Lords.

Time, I think, for the parents and the lobbying organisations and campaign groups who represent them to step up activity, and the Government to finally listen!