Why do some families tear themselves apart?

Cafcass

There is something particularly sad about seeing the same family law case crop up time after time in the law reports. You know that behind those reports lies a tragedy: a family torn apart and still writhing in the throes of its own destruction, rather than moving forward to a new future. Of course, the tragedy is all the greater when there are children involved.

One such case is Cambra v Jones, which involves a dispute between the parents as to whether their five children should reside with the father in Spain or with the mother in Wales. The case has been the subject of many court judgments, both in this country and in Spain. It first rose to national prominence back in 2012 when it was mentioned here in this post. I have also discussed it myself here in this post, following another hearing in March this year when one of the children, Jessica, now aged 16, was made a party to the proceedings so that she could explain why she does not wish to return to Spain to live with her father.

The latest judgment in Cambra v Jones relates to a hearing on the 9th of July. I don’t propose to go into the detail of the judgment, but it concerned the father’s application for the mother to be committed to prison for contempt in breaching an order requiring her to return Jessica and her brother Tomas, now aged 14, to Spain.

The judgment was handed down by the President of the Family Division Sir James Munby, who has thus far given a total of four judgments in the case. He found that the mother was not in contempt, as it was impossible for her to compel the children to return to Spain against their wishes.

At the end of his judgment Sir James said a few words about the effect of these continuing proceedings upon the family. Firstly, he quoted from a judgment by Mrs Justice Theis in January 2013, in which she in turn quoted from a judgment by Mr Justice Hedley in October 2012. He had said:

“… the position of the parents is one of complete impossibility. I do not think they begin to even understand, if they care in the slightest, that they carry on their battle with a total disregard for the cost paid by their children for what they are doing. It is deeply saddening and deeply troubling that parents can be quite so unspeakably selfish as to conduct this kind of battle over years and years and stand by and watch their children pay the price of it. That is how they chose to parent and they must answer for it to their own children in the fullness of time.”

Sir James then went on to say:

Listening to Jessica’s evidence was one of the saddest experiences of my time on the Bench. Her account of how and why her previously close relationship with her elder sister has changed was poignant. It is almost unbearable to think of these five siblings divided as they are, three living in Spain with their father, the other two with their mother in Wales, and all five having as little contact with each other as seems at present to be the case. Somehow there must be some healing within this fractured and bitterly divided family.

“Both parents bear a heavy responsibility, not so much to the courts as to their children. If they remain unable to change things for the better, the price will in due course be heavy, not just for the children they have damaged but also for them. That future does not bear thinking about.

Why, then, do some couples insist upon repeatedly smashing their families apart on the anvil of contested court proceedings? Is it simply due to the personality of one or both of the parties, so sure of the ‘rightness’ of their case that they are not prepared to give ground? Or perhaps they are just unable to see the other party’s point of view.

Sometimes, of course, the proceedings are simply used as a vehicle to wreak vengeance upon a former partner for ending the relationship.

Or maybe the parties just find themselves trapped in a spiral of court proceedings with no clear way out. Obviously, the answer is usually to find some sort of middle ground where a settlement can be reached between them, but sometimes there doesn’t seem to be any middle ground – this can be especially so in cases such as Cambra v Jones which involve families separated by great distance and where it can appear that there can only be one ‘winner’.

The family justice system itself can also make things worse, rather than better. Its adversarial nature, for example, can add fuel to the fire of conflict, making settlement even more difficult to reach. Delays in the system can allow positions to entrench themselves, reducing the possibility of compromise.

Whatever the reason for it, one thing is certain: almost any solution is better than continuous litigation. Every reasonable effort should therefore be made to resolve family disputes by agreement, especially where children are involved, and any party who fails to make that effort does those children a great disservice.

Photo by Thomas Leth-Olsen via Flickr under a Creative Commons licence

 

 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Luke - July 18, 2014 at 2:01am

“The family justice system itself can also make things worse, rather than better. Its adversarial nature, for example, can add fuel to the fire of conflict, making settlement even more difficult to reach. Delays in the system can allow positions to entrench themselves, reducing the possibility of compromise.”
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I think you’re 100% right on this John and you deserve credit for bringing it up, but frankly it isn’t going to be changed. I think it’s human nature that there would be massive resistance within the legal system to fixing these matters.
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Lawyers are not going to be keen to push for an inquisitorial system in Family Law which inevitably will mean that there will be less incentive for people to pay for the most successful lawyers.
Equally, long drawn out cases tend to rack up fees, so there is no incentive to speed the process up !
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I can sit here and say how wrong it is, but let’s be honest, there are very few people of any profession who would enthusiastically push changes which will end up significantly cutting their earning capacity 🙂

Nordic - July 18, 2014 at 10:31pm

Luke is of course right. Providers of professional services can in general be expected to act in accordance with their own financial incentives. Family lawyers are no worse than other professions, but nor are they any better than accountants, consultants or investment bankers. Hence, you will never get the necessary reform from within. When family lawyers express concern about the unromantic nature of pre-nuptials, they are of course really worried about what such agreements, if legally binding, might do to their “market”. Expecting these vested interest to propose serious reform is like expecting a banker to propose to cap his own bonus system. It won’t happen.

That does not mean that nothing can be done. Indeed no other European jurisdiction have allowed their family law to become so completely controlled by vested financial interests. However, any real reform requires our parliamentarians to muster enough courage to take back control of family law and impose some real constraints on the money machine that family law has become in this jurisdiction. The real culprits are not the legal industry, but parliamentarians who avoid doing what they were elected to do – make law.

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