When both parents are their child’s worst enemy

family law

It is, I think, a common perception that when parents cannot agree over arrangements for their child then the fault always lies with one of the parents, who is being unreasonable, putting their own interests above those of the child. (Or is it with the court? More of that in a moment). Obviously, this is how each of the parents perceive things themselves, but I suspect that many ‘outsiders’ who have not been involved in the family justice system also see things this way. However, sometimes the fault lies not with just one of the parents, but with both of them.

This post is something of a first for me. Instead of commenting upon a judgment or a news item, I will be commenting upon another blog post. The post appears on The Transparency Project, and refers to the judgment in the case T v S (Wardship), which was handed down by Mr Justice Hedley in 2011, but which has only just appeared on Bailii.

T v S concerned a dispute between the parents over the arrangements for their four year old son. As Hedley J explained, the parents were “in a deeply conflicted relationship”, and had been since soon after their son was born. I don’t need to go into the details of the case here, save to say that Hedley J clearly found both of the parents to be acting against the best interests of their child. The mother, he said, continued to make allegations which the court found unsubstantiated, and the father had “no chink of understanding about why it all went wrong in the first place so far as his behaviour was concerned”. Accordingly, and remarkably, Hedley J decided that he would treat the parents as having forfeited their parental responsibility to the court.

So to the post. It is not long, but it makes several excellent and vitally important points that are well worth repeating.

The first point relates to what the parents were fighting over. Both of them were seeking a sole residence order. A residence order was the prize. A residence order, in fact, had “assumed titanic status in the minds of the parties”, as Hedley J said. He decided that the granting of a sole residence order to either or even both of the parents was unlikely to be helpful to the boy, as the behaviour of the parents required the court to retain control. Accordingly, he took the unusual step of ordering that the child should remain a ward of court, with the court retaining ultimate control over decisions relating to him.

The point that I want to repeat, however, is what the post says next. The writer explains that the Children and Families Act 2014 of course sought to take the heat out of the ‘winners’ and ‘losers’ divide which some feared was promoted by making either ‘residence’ or ‘contact’ orders, by replacing those terms with the new term ‘child arrangements order’. However, the writer (a barrister) says that having now experienced since 2014 the operation of the replacement term, “I can confidently assert that the underlying tensions for parents arguing over where their child should spend time has been completely untouched by this change in nomenclature.” This is very interesting. I have not been in practice since 2009 so I have not witnessed it first hand, but I have always been sceptical as to the benefits of such changes in terminology. If parents are going to fight, they are going to fight whatever the name given to what they are fighting over.

The second point relates to the abolition of legal aid in 2013, after this case was heard. The parents were both represented, but obviously they might well not be in such a case now. What would happen now if they were not represented? Would the court continue to indulge in an ongoing oversight of the case, with the parents continuing to fight in court until their children are too old to be subject to any Children Act orders? Or will we get to a stage where the courts are so worried about the child suffering significant harm that the only route is into care proceedings? These are important questions. As the post writer said, the abolition of legal aid may have had unintended consequences.

As to the final point, I cannot state it more clearly than the post writer. It relates to a phenomenon that I have often spoken about here, and that can be seen by reading the comments on virtually any post here. The writer says:

“…the frequent need to categorise disputes about children in the family justice system as arising from the alleged systemic bias of the courts for/against ‘violent fathers’ or ‘manipulative mothers’ is a simplification which is often both untrue and unfair. Time expended arguing on which gender the court dislikes/promotes the most is time taken from proper, early analysis of the real issues before the court.”

She concludes:

“It must be very rare to find a case where one parent is 100% villain, the other 100% victim. I have never experienced that in nearly 20 years.  Life is usually much more messy and complicated. All relationships are a dynamic between two or more people and everyone within that dynamic has an opportunity of influence. To expect – as some seem to do – the family justice system to be able to untangle all of this, whilst at the same time asserting that courts are ‘always’ biased in favour of men or ‘always’ listen to the mothers, can be an entertaining diversion on social media but is not any kind of reflection of reality.”

Very well said. I spent about 25 years practising family law. I also don’t recall many cases in which one parent was entirely at fault, and I certainly recall quite a few in which both parents were equally to blame. As I have said here many times previously, the search for answers to an intractable children dispute should begin with the parties looking at themselves, rather than expecting the court to sort things out and then accusing it of bias if they are unhappy with the outcome.

You can read the Transparency Project post here, and the judgment in T v S can be found here.

Photo by Damian Gadal via Flickr

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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18 comments

Wishtytaraglia - July 4, 2017 at 7:01pm

Both on Legal Aid.
Nothing to lose as the State pays their legal fees, no wonder they battled it out on Taxpayers monies.
The longest cases generally in the family courts in the past and now, are where one or both have Legal Aid with nothing to lose financially, these cases go on and on.
Many tens of thousands of £s wasted.
If Litigant in Person’s (LIP), then the Courts will usually get rid of such parents quite quickly, even if they have to use a S91(14).
Of course most of these parents who are on Legal Aid in the past would not continue the fight if they had to go alone or fund it themselves, they would ‘compromise’.
Keep Legal Aid for Public Law cases only – Not Private Law.
If serious domestic abuse or emotional harm, move these cases to Public Law.
Stop the taxpayer funding Private Law arguments.

Paul Apreda - July 5, 2017 at 10:58am

I just wanted to very quickly agree fundamnetally and absolutely with these comments. There is an entirely false view espoused by lawyers that the removal of Legal Aid in Private law has destroyed a system that worked well enough and that the most effective way of solving the ‘problem’ of Litigants in Person is to bring it back. In 2016 – more than 3 years after the so-called abolition of Private law Legal Aid the cost to the taxpayer was still £112m! We hear many of our service users tell us that they’ve been told by solicitors that Legal Aid is no longer available. In the overwhelming majority of these cases the solicitors who said this to individuals who would met the merit and means tests do not themselves have a Legal Aid contract. What we need is a fundamentally different way of resolving these issues.

Sarah Phillmore - July 5, 2017 at 12:50pm

you got your wish. No legal aid for private law disputes, unless domestic violence is alleged.
And are things any better now?
No.

Paul Apreda - July 5, 2017 at 4:10pm

Sarah – you may have spotted the apology I made to you in another post on this thread. Admittedly it wasn’t on the issue that you have raised here.
Legal Aid is absolutely not the answer. We will be opposing any further extension of that in Private Law when the HofC Justice Committee looks at LASPO.
Our research involving a survey of 260 litigants with recent experience of the Family Court – 70% applicants / 30 respondents – https://www.fnf-bpm.org.uk/image/upload/branch/cymru/LiP_Report.pdf highlighted that returning us to a system dominated by lawyers would be the last thing that litigants want.
HOWEVER while the rules of Legal Aid stand, we are and will continue to obtain the evidence for as many as our service users as possible to qualify. When I met the former Minister, Sir Oliver Heald, I explained to him in detail how we were able to obtain Legal Aid for anyone who met the Merit and Means tests on the basis simply of a referral from a GP to a DV support service. In January of this year I informed the Legal Aid Agency that our charity was a ‘specialist domestic violence support service’ for male victims and would be issuing the ‘evidence letters’ in accordance with Regulations.
I would be delighted if the Legal Aid Agency decided to challenge us on this. However – I repeat – more lawyers in the system is NOT the answer. Please read some of the comments included in the LIP survey report – I’m sure that you’ll understand

Wishtytaraglia - July 6, 2017 at 2:29pm

Actually the MOJ Statistics demonstrate that I am correct Sarah Phillimore.

For example the latest posted March 2017, continues to show:

“In general, across all family case types, cases where either both parties or the respondent only had legal representation took longer to be disposed than those cases where only the applicant was represented or where both parties were without legal representation.”
Section 4 – Legal Representation

You will also note in Section 3 – Timeliness of Private Law cases – That since LASPO was implemented there has been a distinct fall in the time cases are heard from over 30 weeks to under 25 weeks.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/622932/family-court-statistics-quarterly-jan-march-2017.pdf

Based on the data, I can see no reason why the government would wish to change what is for them a successful transformation in the Private Law family courts, as Legal Aid has been cut hugely, and it still resulted in shorter proceedings with better timeliness of cases overall.

Thank you

Paul - July 4, 2017 at 8:58pm

Accusing you of bias has nothing to do with the outcome. Thats a total miss conception – The outcome is never really im doubt. Because of the BIAS nature of proccedings lol There is imperial evidence that courts are bias. Its not an accusation its REAL. Family courts are utterly one sided. Thats beyond arguement. It is beyond question. Arrange a venue. Arrange a time. Lets find a jury. I will prove it to you John. With which ever standard of evidence you wish to adopt. Beyond any imaginable doubt.
Without doubt men do make mistakes. But it is women who adopt a possition beyond reason. An punish them for it. An its you legal professionals who are happy to aid and abet women who adopt this possition. Thats how you make money. If you cut down a good man and father in the proccess. Who cares right ? This rarely ever acheives justice.
I’m sure their are exceptions. But there is also an undenyable pattern.

Peter Davies - July 4, 2017 at 9:09pm

I agree that the scales are seldom overwhelmingly loaded on one side only. But this does not mean that they never are and even when they are not the weighting is not always six of one to half a dozen of the other. Furthermore, if intractable cases are testing for lawyers then I can confirm that they test the patience of even the most saintly parents particularly when one party simply refuses to abide by normal social conventions of mutual altruism. I think we do need to make some allowances for anyone that is genuinely caught up as a victim in an intractable dispute because it normally involves a long and hard slog to prove or demonstrate ones innocence. Furthermore, we are dealing with cases that can involve unwarranted assaults upon treasured personal qualities like self esteem and integrity by using and abusing the things that are most valued by us as a weapon or a conduit, I.E our children. It is possible that someone can be pushed beyond the boundaries of the usual conventions of reasonable behaviour by someone that has learned to capitalise upon another person’s frailties and learned which buttons to press. But, to characterise all intractable disputes as 50/50, he said / she said disputes is simply lazy when as Re B (change of residence; parental alienation), [2017] EWFC B24, demonstrates that even a small amount of intelligent probing can quickly disclose that the blame in these cases can be anything but evenly attributable. A second recent case, Re B (A 14 Year Old Boy) [2017] EWFC B28, was published shortly afterwards and this case demonstrated a situation where the applicant’s own behaviour had apparently been instrumental in frustrating contact. Now we have T v S (Wardship) [2011] EWHC 1608 (Fam) to complete the trio of cases covering a broad spectrum of intractable disputes.

However, the situation is not new as Munby P demonstrated in 2004. In, F v M in the matter of D (Management of intractable contact cases) [2004] EWHC 727 (Fam), Munby J (as he was then) drew attention to three preceding cases heard by Wall J, namely Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam), [2003] 2 FLR 636; Re O (A child) (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam) at 91 and A v A [2004] EWHC 142 (Fam). As with this recent string of cases, the cases highlighted by Munby P covered a range of circumstances which were all claimed to be parental alienation. Also, in common with the most recent cases, the cases included one where a parent was found to be alienating, another where alienation was claimed but contrary findings were made and a third where the behaviour of both parties was found to have contributed to a child’s dilemma.

Is it a coincidence that a 2011 case has now been resurrected and handed down to paint a similar picture and perhaps reinforce the existing case law? When one considers that the judge originally responsible for this in 2004 is now the president of the family division, I don’t think so.

In common with the approach suggested by Bala et al, which is now being widely applied in the upper courts, the application of a ‘one size fits all approach’ advocated by the writer when he states, ’As I have said here many times previously, the search for answers to an intractable children dispute should begin with the parties looking at themselves…’ has been dismissed as inappropriate by Wall J and others as much as 14 years ago. The search for answers at court, once an application is suspected of involving emotionally abusive alienation and has already wasted valuable time pursuing mediation should begin with ascertaining the causes of contact refusal. The Sturge and Glasser report first concluded that mediation was unsuitable in intractable disputes as long ago as 2000. Other experts and commentators have since agreed.

What these three recent cases tell us is identical to the message stated by Munby P in 2004 and reiterated in several cases since. That is, the cause of contact refusal must be ascertained at the earliest opportunity if the court is to avoid colluding with the emotional abuse of a child and the coercive control of a parent. In cases such as T v S and Re B ( A 14 year old boy) it might be appropriate to encourage reflection by one or both parents. However, In Re B (Change of residence…) such an approach would have facilitated and prolonged the emotional harm of a child.

Paul Apreda - July 5, 2017 at 6:05pm

Another superb exposition by Peter. We are asking the President to issue a Practice Direction on Parental Alienation so that the lower courts have clear guidance on the way to tackle these cases at an early stage. I have considerable sympathy for the President when he bemoans the fact that by the time cases reach him there is little that can be done. This case law – but more importantly a PD will contribute to the outcomes that we all want to see

Peter Davies - July 6, 2017 at 9:11am

Thank you Paul. I actually agree with JB on a few points here but unfortunately I feel that he and other commentators have been so eager to cherry pick their favourite bits from these recent three cases that they have actually missed a few very significant points. Sarah is bang on the money when she complains about how the traditional ‘he said / she said’ standoff obfuscates the really important issues. The bottom line is that, at the very least, this recent trio of cases begs a few salient questions. Judges and the lawyers in the lower courts are simply repeating the same mistakes and not learning from judgments. Frankly, they are all remunerated well enough to do a bit more homework. I’m afraid that when judges on six figure salaries whinge about not having enough time to write up judgments for publication for example, I don’t think I’m alone in gasping with disbelief. It is amazing that there are a few judges such as the author of this judgment, Hedley J, that do not seem to be prone to the same degree of legal lassitude as far too many others. There is no justification for anyone to feel self congratulatory, sympathetic or even comfortable.

Similarly when the lawyers involved fail to advise courts on relevant case law or judges do not bother to carry out a few basic searches of relevant databases, where there are LIP’s, it is not a great advert for their professions or the system that allows it. Research has never been easier but the same mistakes get repeated time and again because the research is simply not being done.

I am supposing that any failings or omissions are mistakes caused by inactivity or ignorance but this ignores the fact that it is also possible that the lessons contained in the case law have been conveniently cast aside and ignored because they do not conform with personal biases and prejudices. These are important discussions that we should be having. I am afraid that the anodyne platitudes and bland assurances do not wash any more. I cannot understand why anyone would wish to defend a system that actually causes harm to children.

At times I feel sorry for Sir James because it seems like he has really had a go. Having worked for local government I can empathise with his weariness. Having taken horses to water I also realised how bloody impossible it is to get them to drink! It is like swimming in jam (or some other thick and sticky substance). However, I don’t buy the excuse that is generally trotted out for cases where a child has apparently become totally enmeshed, especially when the inertia and sloppy application of the ‘any delay’ principle (section 1(2) of the Children Act 1989) actually facilitates it. As the first Re B (change of residence…) ably demonstrates, a change of residence – frequently mischaracterised as the ‘nuclear option’ – can actually be the most humane, kindest and most effective way of protecting a child from emotional harm. This case also illustrates that more research would actually be more useful than yet more wriggling and hand wringing.

Paul Apreda - July 5, 2017 at 11:16am

I must apologise to barristers Lucy Reed and Sarah Phillimore as I clearly hadnt appreciated the significance of Lucy’s original article and failed to address the very important issues that she raised.

However – I propose here to respond to the points that this article raises about the Children & Families Act 2014.

The will of Parliament was that the old system of Residence and Contact should be removed and replaced with one that ‘removed the prize’ that exacerbated the conflict between parents. Sadly Baroness Butler-Sloss sought fit to dilute the shared parenting provisions of s11 by her intervention at the 3rd Reading in the Lords to define involvement in the life of a child to be no more significant than the ability to send a Xmas card. However, that is the law and all we can do now is lobby for that to be changed in the Green Paper that has already been shared with the members of the Family Justice Board.
However, the reason that many lawyers have stated that they’ve seen no substantial change as a result of the removal of ‘Residence’ and ‘Contact’ is down to the way in which the officials in the Judiciary, HMCTS and the MoJ introduced the standard order document that encourages the granting of a higher status to one parent – ie the clumsily titled ‘the parents with whom the child will live’ and a subordinate status to ‘the parent with whom the child will spend time’.
This is an entirely artificial construct of lawyers – probably introduced by Cobb J who was responsible for the drafting of the Child Arrangement Programme. This is of course the same Stephen Cobb was also responsible for the drafting of a revised PD12J that would have also subverted the will of Parliament by disapplying the provisions of s11 of the 2014 Act if there were allegations of abuse.
We will be raising the issue of CAP and this specific point about the subversion of the will of Parliment when we meet the President again later this month. We have also raised the matter with the Huse of Commons Justice Committee – at least one member of which thinks very much as we do.

Andrew - July 5, 2017 at 5:08pm

“No legal aid for private law disputes, unless domestic violence is alleged.”
.
Exactly. Alleged. Not proved.
.
And the alleged perpetrator is left alone and is not allowed to cross-examine the complainant!
.
DV should be established if and only if there is a finding in proceedings in which both parties were eligible for legal aid subject to means or both parties were eligible for legal aid regardless of means. Medical evidence should be subject to cross-examination and if the alleged perpetrator has given an explanation for any injuries the medical witness should be expected to say whether the injuries are compatible with that explanation. So if the bang on the head which the woman says was caused when he pushed her against the table and he says was caused when she attacked him and he pushed her away and she lost her footing – this is a genuine case I am thinking of – could have been caused by either event, the medical evidence will not help the court.

Cameron Paterson - July 5, 2017 at 6:12pm

A sensible idea. I find it alarming when even the government refers to women who have alleged domestic violence as ‘victims’ before anything has been proven in court.
Talk about being guilty until proven innocent!

Paul - July 5, 2017 at 7:22pm

Agreed. How about the application of a lie detector test for both parties where DV allegations are aledged but not supported by evidence. After the result of such a test then court would know if an accusation has merrit or not. See if a finding of facts would be nessisary. We accept these tests are not infalible and could not be used exclussively to convict.
You should not convict on the back of a lie detector but it would be a fair way to decide if protective measures like restricted access or restraining orders are truly nessisary or prudent.
Obviously the right to appeal such a test result or to retake should be an option.
Only where there is a lack of material evidence or a judge is unconvinced by the parties.
This does have the considrible merit of a machine taking responsability for some of these decissions. But it it does however protect the court of accusations of bias and making discriminatory decissions.

Paul - July 5, 2017 at 7:33pm

Its a damning enditement of our system that I would be happier trusting my fate to a machine than our judges.

Stitchedup - July 5, 2017 at 8:49pm

Even more alarming when referred to as”survivors”

Paul - July 6, 2017 at 8:59am

Why use inflamitry language at all when you trying to calm a situation down and create stability for children involved. Its just wrong.

Peter Davies - July 6, 2017 at 8:28am

I cannot agree more Cameron. This is a fact of life. Therefore, when we hear the constant drone of commentators telling us that there is no bias in the system it should come as no surprise to learn that many people do not believe them.
There are other examples too, where the courts adopt attitudes and practices which have no evidential basis whatsoever. I will gladly describe them for you but I have avoided doing so because the explanations are quite lengthy.
As in the case of awarding automatic victim status, without any appraisal of the evidence or facts, the correct words to describe such practices are prejudice and bias.

Paul Apreda - July 7, 2017 at 9:20am

Part of the problem here is the definition of Domestic Violence and Abuse. We often talk about allegations being false – however to obtain Legal Aid you dont need to make any allegations at all – simply obtain a referral from a health professsional to a DV support service for help & support as someone who has experienced DV OR is at risk of suffering DV. The definition also includes coercive & controlling behaviour as well as emotional abuse. It is hard to conceive of a situation in which separating parents who are in conflict about the care of their children will not be ‘survivors’ AND perpetrators of domstic violence and abuse. At our conference & AGM in mid March I asked the President to tell us what constituted DV. He stated that was defined by statute. Sadly of course he was wrong. The only way to deal with the current system is to recognise ALL litigants are likely to be victims and make sure that men (who dont see things the same way) report as victims and tick the box on the front of the C100. When a man is told that he cant have a relationship with his own children with no attempt by the mother to make an application to the Family Court to exclude him – then how is that NOT emotional abuse?

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