How to destroy your court case

We don't have a perfect family justice system. It's a system which involves people, people are flawed and sometimes make bad decisions.

Sometimes parents complain about outcomes in the court. On occasion, they forget that while in court, they're part of the system, and at times, their conduct is as much a contributory factor to a bad outcome (or the main cause). They leave court blaming the system, blaming the other parent, but rarely stop to look at their own conduct.

The same criticism can be levelled at some legal advisers, and not just McKenzie Friends. I've seen solicitors and barristers equally foolish in taking an aggressive and combative stance. To my mind and in my experience, those advisors (legally qualified or not) wreck cases and wreck lives. On a pragmatic level, they hand on a plate the opportunity to show a contrast between your (or your client's) reasonable position, and that which ends up looking like a dog chewed, saliva ridden chew toy. Their narcissistic and disordered love of the fight, the battle, the attack... panders to the worst traits and vulnerabilities of the separating parents. Rather than being a protective and moderating factor, they're petrol poured on the flames. My view is they're dangerous people who shouldn't be allowed anywhere near a court or decisions relating to children. Judges need to be far more robust in slapping these people down, banning them from the court room, and if members of a profession, reporting them for misconduct.

Leave the ego at home. You may be someone who easily becomes emotionally involved due to your own past experiences. When advising someone, the most important thing to offer is objectivity (before knowledge of case law, process and protocol). If you miss the importance of prompting, nudging and poking the client into a reasonable position, you hamstring them and you're doing them a disservice. They're the ones emotionally involved, stressed, angry, bitter, upset... all of which clouds their judgment. What hope do they have if yours is clouded too. If you only ever see bad outcomes, maybe it's time to realise the common denominator is you!

...but back to parents...

I'm often asked if there's a winning strategy in family law proceedings. There's certainly one which improves your prospects (and at times dramatically), and that's taking a reasonable, consistent, non-aggressive, child centered approach. Judges like it. It's hardly surprising. They get tired of seeing case after case involving unreasonable people. While it's undeniably advantageous from a tactical perspective to be reasonable in court, embrace it in the start of your journey into separated parenthood with your ex-partner. You'll end up with less aggravation, less stress and happier kids. Your ex-partner may not engage at first, but remain reasonable, fair and courteous and many do in time. 

A simple tip. Say something nice about the other parent. It's highly unlikely the court will stop their contact. You may find that by saying John/Joanne is a good dad/mum, you not only gain a measure of respect from the judge and welfare officer, but your ex loses a small portion of their anxiety over a belief you want to take 'their' child away.

In November, I was speaking on Parental Alienation and Developments in Law at a charity AGM event. The morning speaker was Sir James Munby, The President of the Family Court, and his words need to be well heeded on the risks of attitude not just in court, but to your life with your children years after:

"You may think he is an absolute monster. You may think she is an absolute ‘blanket blank’. The risk you are running is that if you carry on like this your child suddenly one day will realise what went wrong. And when the child is old enough he may walk out. He may say a plague on both your houses. You’ve ruined my life. You’ve done what Larkin famously said, you’ve “fucked me up”. I’m off. You’re both as bad as each other. 

I ask them, “do you want to spend your declining years alone, hated by your child. It may take 5 years, it may take 20 years but for god’s sake think about that.”

The reality is that sooner or later the child is going to want to seek out that monster or that bitch. The child will then discover she or he is not as bad as you made out. That will have two effects. One is that there’ll be an increased wish of the child to see the other parent. The other is that the child in that circumstance will condemn you for giving a false impression. You are running a terrible, terrible risk”."1

I get people contact me years after their case has ended, and can assure you that this is not a scenario which only exists in Munby's imagination. Three friends have their kids now living with them after having faced horrific allegations, a complete cessation in contact and parental alienation. You bet it happens!

It's not enough to simply maintain a facade of reasonableness in court. You need to carry that forward after. It will probably take effort. It may conflict with your emotions... but the plain fact is that by continuing to have hostility towards the other parent, as Munby and Larkin said "You fuck up your kids." It's bad parenting. You become part of the problem, engage with it, and make it worse.

You can't control how your ex-partner behaves, but you can change how you interract with them. This doesn't mean you roll over and accept unfairness in relation to child arrangements or finances, but you decide what matters are worth dealing with and which aren't, and you then act appropriately and reasonably. You may need to take matters to court or back to court... but do so wanting to resolve a situation rather than seeing it as the next stage in a war or an opportunity to denigrate your ex. Focus on the problem, not the person. If your anger relates to infidelity, their being lazy round the house, their not paying you enough attention and such, let it go. Move on. The court simply isn't interested in those things, and frankly, by dwelling on them you damage yourself more than anyone else.

If you struggle with the emotions, and it's understandable to do so, get counselling. You'll have an easier and happier life if you do, likely get a better outcome in court by being more led by reason than emotion, and your children will be happier too.

Drop words like battle, fight, war, bitch, bastard and worse. Not only in language you use externally, but within the inner dialogue which rattles round your head. The extent of hurt, fear, anger, bitterness that you experience exists with your consent. It's a choice. It may be human to take that choice, it may be understandable, but it's still a bad choice nonetheless. It's poison.

It's something you'll need to work at. Do it!

Your Attitude - Best Counsel: Worst Enemy

The written evidence you put into court, the words you use, the allegations you raise, the proprosals you make, what you say and your body language all form part of evidence. They all form a part of helping the court decide what type of a person you are.

How you interract with those in court matters too. If you're aggressive with the other side, you motivate them. If you insult the welfare officer, you make them more biased. If you keep challenging, speaking over, or arguing with the judge, you'll irritate them. They're all people too, and regardless of being in a profession, just as prone to human emotion. THINK!

The CAFCASS Officer may have made a mistake in his or her report. It's not uncommon, but people do. If you want to challenge what they said, don't accuse them of being a liar and biased. Point out they've made a mistake and be pleasant while you do. Don't fire off a complaint letter accusing them of bias, but a reasonable letter asking for a correction. Remember you need to challenge what they've said in court if (and only if) it is a serious mistake. Then, again, do so reasonably. Put in a position statement before the next hearing, asking for a correction, and drawing the error to the court's attention. Don't immediately ask for the officer to be sacked, removed or reprimanded. Make your response proportionate and do so reasonably and objectively.

In your statement, don't refer to the mother/father as the Respondent or Applicant. They have a name... use it. Don't talk about 'MY child'... it's OUR child. Once your statement is written, re-read it. Strip out emotive and accusatory wording. Focus on facts.

Think About Your Audience

Any professional writer thinks about their audience. What do you want your audience to hear. When writing a statement, your audience is first the Judge and any welfare officer/expert involved. What message do you want to get across to them. In family law proceedings, the most important matter are the arrangements you want for your children and why these are appropriate and in the child's best welfare interests. I get an impression a fair number of litigants write their statements for their ex-partner, as a way to tell them everything they felt they couldn't say (or did repeatedly) during their relationship. The last word scenario.

I see too many statements in which the writer, frankly, spends 95% of the time pointing out why the other parent is no good. They neglect to consider that they've been in a relationship with this person for years, trusted them in child care, trusted them enough to have a child with them, but suddenly want the court to view that same person as a monster. In pragmatic terms, they risk their own arguments getting lost as to why the child should be spending time in their care in their attempts to prevent the child spending time in the other parent's. Sometimes, they fail to include their own proposed arrangements at all. Typically, they fail to see the irony in allegations which is a common occurence when false allegations are made. Stick to the truth and you won't get caught out. Exaggerate or lie and you'll risk the judge doubting everything you say.

The same with parents who demand children spend 50% of the time with them without saying at all what it is they do with the children, how they support the child, what activities they undertake together etc. They fail to mention once why their proposed arrangements are in their child's best interests (rather than their own). Little wonder that courts sometimes form a view that the parents are more interested in a tug of war rather than their child's welfare. If you believe shared parenting supports a child's best interests, you need to include the 'why' in your arguments, and not just relate it to children in general, but your own in terms of their specific need and circumstances. In this I used the term shared parenting as both being fully involved in all important aspects of their child's life and care (rather than a stict mathematical division of time to the minute).

Digging the Bottomless Hole

Cases are wrecked by aggressive and combative strategy. Cases are wrecked by parents intent on punishment rather than resolution. The ones who scream unfairness at the system while wanting their partner jailed over a single day of lost contact and then can't understand why the court believes them controlling and upholds that non-molestation order. The one who glares at their expartner throughout proceedings. The ones who complain about bias but walk into court expecting the whole system to be weighed against them. The ones who throw insults at the people who decide their children's arrangements. The ones who slag off their ex-partner all over social media. The ones who stalk their ex-partner's 'friends lists' and then contact them to say how bad that parent is. The ones who make false allegations. The ones who are violent or who damage their ex-partner's property. The parent 'devastated' at losing a leave to remove case who has shown themselves to be nothing but hostile to contact... and the examples go on and on, but at the core, is the wrong attitude.

The system isn't perfect. There can be unfairness, but there are plenty of instances where it gets things right. Where parents are reasonable, I'd go as far as to say this is the likely outcome. As Munby said, a system based on human beings will never be perfect. You won't change the system overnight (if ever into something ideal), but you can control your part in it (and after).

New Guide
To help parents avoid some of these pitfalls, and as it's such an important component of a successful outcome in court (and after), we have a new guide built into our Family Law App addressing ABCs (Attitude, Behaviour, and being Child Focused)... click the image.

End Note

1 Sir James Munby, President of the Family Division. Keynote speech to Families Need Fathers AGM [16 November 2014]

Acknowledgments

Thanks, as ever, to Reggio Blackwell for the artwork.

Can You Still Get Shared Residence?

We've been asked on several occasions recently whether you can still ask the court to make the equivalent of a shared residence order under the new style Child Arrangements Order.

The very simple answer is...

YES

...and our guides show you how. Click on the image [to the left] to be taken straight to our guide.

You can even double check we're right by looking at section 7 of the Draft Child Arrangements Order which you'll also find on our site.

We also have a library of case law related to Shared Living Arrangements.

There was a change to "shared residence" which came about due to the amendments to the Children Act 1989 which were introduced by the Children and Families Act 2014. These amendments now allow the same enforcement provisions to be made in respect of shared residence (now shared living arrangements albeit otherwise the same as shared residence was prior to the amendments)  as there were before (and still are) to enforce contact.

We've also made our Shared Living Arrangements guide more prominent on our Applying To Court page.



Why consider shared living arrangements for your children?

Social research shows that children fare better emotionally, psychologically, and developmentally when parents separate but share care.

Go on... if you must go to court to settle arrangements, consider shared living arrangements... do it for the kids...

Face to Face Support - FNF Central London

The primary goal of The Custody Minefield is to provide family law information for those without legal representation, lay advisers and charity sector staff (some in the legal profession and other professionals find it quite handy too).

Other organisations provide 1-to-1 support, and one of these is the charity Families Need Fathers (FNF). FNF, despite its name, helps both mums and dads, and in addition to a helpline and internet based forums, has local branches across the country where you can meet with other parents going through separation and find face-to-face support. A vital lifeline for many litigants-in-person.

Much of this work is done by volunteers, who receive no plaudits, little public recognition, but who work to help others, year in, year out.

One such is Vincent McGovern, Chair of Families Need Fathers' largest and oldest branch, who we've invited to explain what his branch does, his personal role and work, and that of the Central London Committee.

FNF's Central London Branch have their own web page, with details of Branch Meetings.

Visit: Families Need Fathers - Central London Branch

We're happy to publicise details of organisations which support parents ...and after this brief introduction, I'll leave you in Vincent's hands...

Branch Meetings

The Central London Branch of Families Need Fathers is the founding branch of FNF established in 1974. It is also the busiest and largest with between 900-1,000+ attendees each year. 

We have meetings to offer separating and separated parents support, every Monday at 8 pm apart from Bank Holidays and Christmas. Meetings are held in a private function room at the Crosse Keys Pub, 9 Gracechurch Street, and near Bank underground station.

Newcomers are not obliged to speak and are welcome to observe – we like to provide a relaxed, pressure free forum for discussion.

Our Attendees

People often ask me what type of person attends our meetings. My reply always is “normal people unfortunate enough to find themselves in unfortunate circumstances.”

The majority of our attendees are dads, but we are gender blind and help any mother who is the non-resident parent. Quite often younger dads have their mothers or sisters accompanying them. Our whole raison d’etre is to support the children having a proper involvement with both parents, post divorce or separation, unless there is proven danger.

The Crosse Keys Meeting Venue

Legal Support at our Meetings

We have a specialist Solicitor clinic on the first Monday of every month for members only from 6-8 pm. We owe a deep appreciation to the family law firm Anthony Gold and Co, who have provided this important pro bono service for decades. Quite often we have the benefit of a senior partner from that firm which is very helpful for nervous frightened attendees.

For the past year at most meetings we have also benefitted from the assistance of Austin Chessell, a family law solicitor and mediator, also a Trustee of FNF, which enables whoever is Chairing the meeting that night, giving advice, to have a professional referee for validity of comment.

As well as solicitor support, McKenzie Friends (lay legal advisers) are on hand to provide support and assistance.

We wish to make clear that no adviser (solicitor or otherwise) charges for their time at our meetings, and again sincerely thank all, who over many years have given up their time to help thousands of parents and their children.

Confidentiality

All of our meetings are held under Chatham House rules, no repetition of discussions outside of the meeting, no recording, first names only and NEVER ever reveal the names and addresses of parties to anyone. This basic housekeeping causes some problems for newcomers who are quite often emotional (understandably) but it is an absolute requirement for us as a branch and helps the attendee to focus as sometimes they are in deep shock. Confidentiality is important not just to these parents, but their children as well.

Work of the Central London Branch (CLB) Committee

We hold committee meetings every three months dealing with such matters as housekeeping, rota for chairing meetings, liaising between ourselves and FNF HQ, also other branches, financial management etc. The committee of CLB never charges expenses for attending all these meetings, a considerable burden in itself. However, this means CLB has the funds for limited campaigning, assisting some truly desperate members with court fees, train fare to and from meetings, etc and on occasions helping the national charity at AGM’s etc. 

We normally have the full contingent of seven committee members at each branch meeting, as meeting every week requires considerable time input from officers.

Committee members are elected, each year, at the Branch AGM. We're a democratic group!

About Me

I first joined FNF/CLB in December 2007. Ironically I delayed joining as I discovered they met above a pub and I incorrectly assumed they were just a bunch of angry dads drinking and "sounding off". That false impression was quickly dispelled at my first meeting. A few months later I was invited onto CLB committee.

My views on post-separation and our legal and welfare system

It remains a perversity that, especially when parents are likely to be in heightened emotional state following a relationship break up, the court too often encourages post-separation dispute by handing control and a means of punishment to one over the other.

As Sir Nicholas Mostyn, a judge in the High Court, said in a past judgment, "if parents were behaving well, they'd probably still be together" but ours is an adversarial legal system. My own view is that the term adversial should have no place in the family courts. Our family courts should be inquisitorial and facilitative.

I can say, with clarity, that too often our family law system does fail children and still contains elements of gender bias. I've seen house husbands relegated to alternate weekend contact parents after separation, with little thought to maintaining the status quo for the children. Why... because of their gender and some judges remaining out of touch with the contemporary household. In so many homes across the country, both parents take an active role in their children's lives. In the new millennium, research finds mums and dads equally involved (Equalities Commission Research, 2008), yet after court, too often arrangements are imposed which hark back to a 1970s ethos. Countless studies confirm child welfare benefits when both parents are fully involved in their children's lives.

I've seen too many instances where there has been malpractice in welfare services, and four Ombudsman Investigations (with findings against) in a single case I've had involvement with. Findings confirmed institutional malpractice within children’s and legal services. Two of these were Parliamentary and Health Services Ombudsman investigations with findings against Brent Primary Care Trust and Cafcass. Sadly, findings such as these, while a moral victory, result in zero change on the ground. We need an ethos within UK Children's Services where the primary motivation is raising standards rather than defending reputations.

Too often, our courts fail to safeguard a child's relationships, or protect them from the emotional harm caused by an alienating parent. There is too little enforcement of Court Orders (Ref Hansard 25 February 2013, column 113).

So much opportunity for a more family friendly legal system was lost with the final revisions to the Children Act in 2014. UK MPs were too influenced by powerful lobby groups, and misinformed. An example being their holding that a presumption of shared parenting was unsuccessful in Australia, when no such finding existed. Such was the opinion of Professor Parkinson of the Sydney Law School, whose criticism included that the UK Family Justice Review misrepresented the findings of Australian research. At our branch, we deal with the fall out of political failure.

The expression ‘Welfare of the Child’ has become an expression of convenience quite often unrelated to children’s welfare or needs but most beneficial, ideologically and financially, to the myriad virtually unregulated and effectively unaccountable services involved. Big business meets a nigh on unaccountable public sector lacking in checks and balances. As an MEP said to me in Brussels, “when income generation is more important than welfare of children then we have systemic failing.”

This is the reason why I moved my energies to lobbying in the European Parliament. The difference with Westminster could not have been more stark. The MEP’s have extensive knowledge of the shortcomings within UK Family Courts and associated services. Fortunately Ombudsman Investigations mean something in Brussels, and the fact I could submit details of four (mentioned above) leant weight to my submissions. On March 19th this year I had the privilege of briefly addressing the petitions Commission of the European Parliament on it’s motion ‘Systemic Failings within UK Family Courts and Children’s Services.’ The title was apt. I am deeply grateful to FNF's Central London Branch for always supporting my work attempting to bring about the much needed improvements in these services.

Our branch and other FNF branches help parents navigate the courts as they stand today. My hope remains for a better system in the future.