There are only losers in contested children disputes

children and divorce

That must be one of the most obvious post titles I have ever written. It has been said so many times before and I will say it again: there are no winners in contested children disputes, only losers. And one of those losers is, of course, the child at the centre of the dispute.

Getting this message across to the parents is, I believe, one of the primary duties of judges, lawyers, Cafcass officers and all other professionals who deal with private law children disputes. Ultimately, however, those professionals can only pass on the message. Whether or not both of the parents choose to accept it is another matter.

If they do not accept it and are determined instead to proceed with open warfare over their children then, ultimately, there is little that the court can do to stop them. Such behaviour, however, will be a source of immense frustration to the court, which has no interest whatsoever in winners and losers, only the welfare of the child. Such parents must therefore expect the court to take a dim view of their behaviour.

And of course the more heavily contested the case is and the more antagonistic the parents are towards one another, the worse it is – not only are all involved losers, but the damage caused can have appalling effects for years to come. In fact, it is no exaggeration to say that the damage can leave scars on those concerned, including the children, for the rest of their lives.

An example of just this sort of situation occurred in the Court of Appeal decision Re Q (A Child), reported this week. The case concerned private law proceedings regarding a father’s contact with his son, who was born in September 2007. The proceedings started way back in May 2008 and have been going on ever since “driven by the father’s understandable desire to have a meaningful relationship with his son and prolonged by the seemingly insuperable difficulties in achieving that with more than fitful frequency.”

I’m not going to go into the details of the case – no doubt that will occur elsewhere – but for the purpose of this post the basic facts were as follows.

The appeal before the Court of Appeal related to the most recent of numerous hearings that have taken place over the years. The hearing took place before His Honour Judge Glenn Brasse, sitting in the Central Family Court, in August 2014. Judge Brasse had to decide how to progress the case, in the light of what he found to be manifestly false allegations made against the father and evidence that was overwhelmingly in support of the view that the child had been influenced by the mother’s hostility towards the father. In the event Judge Brasse decided not to order contact but instead ordered the parents to co-operate in the referral of the child to a children’s centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the centre recommend.

The father, fearing that Judge Brasse’s order brought the proceedings to an end without making a child arrangements order, appealed against the order. The Court of Appeal, however, dismissed the appeal. Giving the leading judgment the President found that Judge Brasse was entitled to do as he did and, indeed, said that he would probably have done the same himself. Judge Brasse was not abdicating his responsibility to do everything in his power to attempt to promote contact, and was not abandoning the ongoing judicial duty to reconstitute the relationship between the child and his father.

All of this may, of course, sound like a victory for the mother and her efforts to thwart the father’s contact with his son. However, the President had this to say to her:

“I would not want the mother to think she has won. She has not. There are no winners here, only losers. [The child] is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and [the child], now stand at the cross-roads. It is vital, absolutely vital, that she participates, with [the child] and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, [the child] will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.”

It is not the first time that we have seen such a warning in a judgment and, sadly, I’m sure it will not be the last. All that can be done is to keep repeating the message, in the hope that more parents will heed it.

The full report of Re Q can be read here.

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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13 comments

Paul Apreda - October 2, 2015 at 9:01am

I’ve heard the view that ‘there are no winners in the Family Court’ so many times before. Sadly that view is nonsense.
I met with the President after he delivered this judgement earlier this week. I also met with HHJ Wildblood (of Minnock case fame) yesterday. I have enormous respect for both of them. I’m sure they share John’s view as well. They too are wrong.
In an adversarial system there are clearly winners and losers. In the case that John refers to patently mother is the winner and father the loser and all the discussion of the impact on the child and how, to introduce another metaphor, the mother has sown the wind and will reap the whirlwind, the reality is that she has won.
I think its important for fathers (or any parent who hasn’t secured an unfair advantage by ‘grabbing the kids and pulling up the drawbridge’ ) to understand the thinking that underpins these sorts of decisions. It is so important for them to realize that senior (indeed the most senior) judiciary often feel powerless when faced with cases such as this. Much of that is because of a lack of judicial direction at the very start – often by magistrates who lack the skills and resolve to take firm action.
I once criticized the Family Justice system at a high level Welsh Government committee meeting by saying that our service users came to us with a ‘cast iron belief’ that the Family Justice system would solve their problems for them – but that we soon ‘knocked that out of them’. Rather than facing criticism from the senior figures on the committee a very senior judge agreed with me saying ‘that’s so true – I do wish people would stop thinking we can solve their problems’.
There is an inevitable conclusion from all this – which becomes ever more difficult for us to oppose when it is suggested to us by parents who face exclusion. The most effective way to ‘win’ is to grab the children – ‘pull up the drawbridge’ to refuse all contact, throw out some form of allegation of abuse (preferably by seeking a Non-Molestation Order) and then sit back while the Family Justice system creaks into life to spend months if not years wringing its hands and failing to take action.

Re Q is a clear example that using the Family Justice system to ‘right a wrong’ is futile.

elizabeth adamson - December 19, 2015 at 4:50am

no i dont think so. It works both ways im a mother of two and all i wanted was support and a fair balanced amicable parenting situation. That meant working as a team to bring your kids up. now as a single mum who had become the home-maker while my ex went of to college learnt a trade and once the hard yimes had finishef because he got a good well paid job, he left me , refusing to help finance our kids. only once csa had caught up with him he rang social services om ke and not judt once 8 seperate times saying kids were not safe e.t.c. I never once stopped contact as i fidntvwant a court battle. well iv done all i can yo have a fair balanced but his unwilliness to put are differences aside for kids iv gone all out to be amicable and he still wont gove up throwin alligations. so even tho you all go on over mums alienating parent what about the mum who is going to the foodbank to feed her kids shammed becaus of the forced poverty kids life is wen there at home and dad dosent pay a penny and spoils kids for the 19 hrs a week he was asked if he could see them more . but no to busy wiv a 3rd new girlfriend but still trouble

The Devil's Advocate - November 16, 2016 at 12:49pm

Well declared and you are a very balanced mother.
Tell me would you be prepared to speak with my ex wife about this if you were provided with all expenses to do so? My two boy children have been alienated from me by a woman exhibiting behavioural traits of a covert narcissist. but will learn to act if a normal woman as you could talk with her FOR THE BOYS BEST INTEREST.
For your information I was alleged to have been a sexual predator on my children which was expunged by the Police and sadly she lied to them libelling such allegations which is a criminal offence itself so she has to be careful. After sixteen Court appearances over two years and twelve attempts at mediation and counselling which were all derided, and even their schools obstructing bonding, The only reality for the 4 million children alienated from their parents and close family cohorts is legislation change, which failed children in private law in the Children and Family Act 2014….Only full engaged responsible parity is acceptable in a civilised society, and to parallel this anti alienation legislation as in Italy, Brazil, and Mexico (the penalties are severe including loss of custody and freedom!)
You talk to my wife and I will with yours…deal

The Devil's Advocate - November 16, 2016 at 12:56pm

You are quit correct in this way your ex is attempting alienation on you from a distance….You need justice and for him to take responsibility…Justice on individual cases as happens in Finland and Italy, Brazil and Mexico. Families have different high based values here….we need this in the UK.
Contact Amazing Grace 2015 if you would like support.
Thanks,
Amazing Grace
amazing-grace2015@hotmail.com

The Devil's Advocate! - October 5, 2015 at 1:07am

How many more times has it to be said?. If this argument was happening in a District Court in Brazilia, this outcome would be illegal and the parent presenting the alienating case would be arrested and criminally charged with P.A. If she/he failed to act in the best interest of the child they would be convicted and the court would have an automatic right to give the abuser a custodial sentence and non custody to the child on their eventual release.

It seems that some countries in our world are a lot more civilised than the UK and understand truly what are in our children’s best interest. Because it seems our “muffins” in Parliament are seemingly supporting such abuse. Shame on all abusers.

And please no squirming out of this reality. Yes of course the child support services would be there to provide children with all the therapeutic family support which as Karen Woodall and Steve Miller have proclaimed through empirical evidence, that children want to be with both parents at their own behest when the facts are known. It is just a shame as KW has stated that Social Services have no clue of this basic situation which society seems to have and its debacling effect on our families and they should all be be aware of the consequences on their freedoms if they don’t come up to speed on the real psychology and the affect of P A on society.

The insuperable parity of the rights of both parents to fully engage with parental responsibility legislation is so simple it would l am sure be supported by the President himself if he followed through on his feelings expressed in his views on parental responsibility previously.

It’s just getting those 130 MPs who may have been affected themselves by PA to come forward and support our children from the worst scandal which is rife in our country and continues to rise and 325 million people in Latin America who understand children and child care more than we do, are quite rightly laughing at our 17th Century attitude of what we in the U K feel are our children’s best interests!

Nordic - October 5, 2015 at 2:48pm

The mother won and the President isolated the child with an abusive parent. The President’s attempts to convince himself of otherwise is plainly nonsense. The end goal of extreme alienation is to eradicate the other parent from the child’s life. This outcome is exactly what the mother sought in this case, and exactly what the President delivered. We now have a court sanctioned recipe for how other abusive parents can achieve similar outcomes in the future.
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If our most senior judges are so so lacking in courage, what is the point of the point of having separate family courts in the first place?

A mad precedent from a mad system of family law. How do they sleep at night.

The Devil's Advocate - October 7, 2015 at 1:56pm

You have exampled the exact reason why this nation, England and Wales specifically, to have a change in legislation as l argued in my response above.

We don’t have the “genitals” currently to act but we must. There are balanced women who will support this as they understand the need for balanced families they don’t want to see 200,000 extra children each year put in this damned situation of psychological slavery!

Amazing Grace 2015 is a hub for this. Use it and also get those MPs to back a real change
for our children’s best interest and use the empirical evidence of Brazil and Mexico in support!

stitchedup - October 5, 2015 at 2:48pm

Another “slang” term for parental alienation is “parentectomy”. I came across a book on Amazon – Parentectomy for MUMMIES – then in brackets and small print we have (AND DADDIES). The cover reads “how to get rid of that useless other parent and improve your kids lives – so easy you won’t believe it.

Luke - October 7, 2015 at 4:14pm

People like you John in spinning this Judgement are part of the problem.
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“It is not the first time that we have seen such a warning in a judgment…”
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Whoopee-Doo, I bet that makes all the difference to the father.
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The court system in practice is anti-father and she has used it shamelessly – making the judicial system embarrassed at what they have ended up with and caused this pathetic attempt at face-saving with this BS warning.
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She’s been clearly dishonest and malicious and because she’s a mother they STILL let her win comprehensively – she’s laughing at them and the destroyed father – she’s laughing her freaking head off…
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Irena - October 18, 2015 at 11:19pm

I am angry when I read such judgements against a good father. Its just plainly wrong. Judges do have power. There are plenty of judgements where there is a change of residency from a loving protective mother, who is just seeking a little reassurance for her safety and her childrens safety but is not an alienator and the children are handed against their will to the abusive father. Solicitors now routinely tell mothers not to report abuse for fear of loosing residency. Karen Woodall has a good article about this phenomena.

So what is stopping a judge from change the residency from an overtly abusive zero-empathy mother to a good father, against a child’s will? At least in this scenario the child would go to a good father.

Nothing will change until parents Wake up and realise this is not a gender issue and men and women help each other fight these abuive parents together.

Karen Woodall is begining to look at the different types of abusive parent. Those that are just upset and afraid post divorce, and need reassurance, those that are abusive as a pattern learnt from childhood and can with therapy be helped and (Karen Woodall doesnt say enough about) those parents who have some kind of psychopathology. The cold controlled, charming, organised, no empathy types who strike first and remorsellesly and never ever stop trying cutting the other parent out of the child’s life. The Sociopaths Next Door. No child should ever be left isolated, as another blogger wrote, with a parent who has zero-empathy, so please soliticitors explain to us what can be done to stop this terrible damage to the UK’s children.

PS. Soliciotrs should be foreced to report clients if they become aware of pathalogical lying.

JamesB - October 19, 2015 at 11:09am

They grab the children and pull up the drawbridge. I like the way you write Paul. Very precise and accurately.

Often this is what their solicitors get them to do and ensure they have the child benefit in their name and then milk the status quo argument and money and assets and everything as primary carer in the divorce or contact.

That the dodgy family courts of England and Wales reward this kind of behaviour is completely reprehensible and indefensible as it is that it is done behind closed doors and financed by the tax payer. I feel the same level of disgust about it as coming up close to a load of big rats in my garden yesterday evening. Same feeling. Complete disgust.

Paul Apreda - October 19, 2015 at 10:03pm

Thanks JamesB for your kind words. I’ve just been notified that the Family Justice network for Wales (which is the primary Welsh Govt committee dealing with family justice issues here) is holding its annual stakeholder event in January on the implications for family justice of the Social Services & Wellbeing (Wales) Act 2014. This piece of legislation creates a legal duty on local authorities in Wales to act to promote the wellbeing of all citizens in Wales.
I met with the Minister here a few months ago and dropped into the conversation that we wouldnt need the family justice system when the new legislation came in because we’d be directing people to local authorities to ‘unblock’ the barriers to contact. Wales also has legislation to make the UNCRC a legal duty on Welsh Ministers. We’ll see how we get on…..!

colin - November 15, 2016 at 12:12pm

it is truly shocking to see a case trivialised and some of the absurd comments from people who have no knowledge other than the above summary. What a mockery you make of other people’s lives. Shame on you.

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