What we are all really thinking about children disputes

family law

On Saturday a short article appeared in The Guardian, setting out briefly the thoughts of a family court adviser (who I used to know as a ‘court welfare officer’) when they deal with a dispute over arrangements for children. Their thoughts pretty well match those I used to have when dealing with such cases and, I suspect the thoughts of most family lawyers (not to mention judges). I think it would be useful for the parents involved in such disputes to hear what other people think about them, so I am repeating some of the thoughts here.

I’ll begin with the old cliché about the hatred that former partners can express for one another, expressed by the family court adviser thus: “How is it only now that you’ve noticed that your erstwhile partner is the devil incarnate?” You were fond of one another once, and sometimes for quite a long time. Could you really have been so wrong about them? Or is the truth that they aren’t actually that bad? Are you just caught up in a cycle of animosity, driven by the desire to paint them as badly as you can, for the benefit of the court? Remember, there are children involved here – they are far more important than your feelings towards your former partner.

In a similar vein, there is the phenomenon of the incompatible stories that each party tells. All family lawyers see this: their client tells them one version of events, but they know that the other party is going to come up with another version. How can this be, given that they have both experienced the same set of events? Is one party telling the truth and the other lying? Or did each party genuinely see things so differently from the other? Obviously, it is the job of the court to decide, but this will take time and may well add to the costs. Far better for the parties to stop and ask themselves: is that really what happened? Or am I embroidering it for my own benefit?

As the family court adviser says, sometimes it is fairly obvious which way the matter is going to go, for example in the case of the father who has always controlled his family and now seeks to carry on doing so by other means, or the mother who has a new man in her life and wants to wipe all traces of the previous one. Most often, however, the court will impose a compromise arrangement upon the parties that will satisfy neither of them. How often did I explain this to my clients? It is a simple, but obvious, fact of life, and the reason why the parties should do their best to sort matters out between themselves by agreement, rather than rely upon the court to sort them out for them.

Many of the difficulties involved in contested children disputes of course go back to a point that the family court adviser makes, and that I myself made here only recently: the court cannot force parents to act in a reasonable fashion. Sadly, that goes not just for their behaviour at court, but also for their behaviour both before and after attending court. If a judge could wave a magic wand that made the parties behave nicely towards one another then all problems would instantly be solved. Unfortunately, there is no magic wand, and it is no good getting frustrated with the court for failing to control the behaviour of the other party: there is only so much the court, and the law, can do. In the end it is often up to the parents to put aside their personal feelings, and do what is really best for their children. It is also very sad, as the family court adviser also points out, that bad behaviour after a separation is more supported than challenged by friends and family. If you know someone who is going through a separation then the best thing you can do as their friend is point out to them when they are behaving badly, rather than blindly agree with everything they say.

As I said at the beginning, this post is intended to help parents. It is not intended to criticise them. It just seems to me that knowing how other people see them and their actions may assist them to take a step back, and thereby make it more likely that they will avoid lengthy contested court proceedings which are, of course, a disaster for the entire family, especially the children.

You can read the article here.

Image by j t via Flickr under the Public Domain.

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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8 comments

Jo Archer - August 29, 2017 at 9:24pm

This is awfully one-dimentional. If you have lost trust in someone who you thought was trustworthy and has show themselves to be anything but, why would you let them anywhere near your children?

And while some cases may be as you describe, in a whole lot more one party has more power than the other party and WIELDS IT!!! Neither the police nor the courts are sufficiently a) interested in or b) trained to recognise emotional and financial abuse which one or other party understands all too well and their experience of the legal process undermines their origainl belief that it can reach the best outcome for their children. I don’t think it is given, any longer, that any institution is capable of delivering what they may state their aims to be!

Most people are trying to do the very best they can for their children under very trying circumstances and it is extremely frustrating and PATRONISING of strangers, no matter what their authority, to assume that they know better. If you have an adversarial system, don’t be surprised when people fall into a pattern of ‘he did this, she did that’! Both sides are not equally right, per se – and the legal system is not sufficiently nuanced to work that out, without a HUGE waste of effort and money…that could better be spent on the children than filling the pockets of people who will forget your name the moment you leave the final hearing…some times without even bothering to ensure the court order reflects what was actually agreed.

If the parents are at fault, so too does everyone else need to take some responsibility.

Father of 4 - August 29, 2017 at 10:46pm

It seems that the court gives up before it even tries? The court has the power to make parents act reasonably and responsibly, and far beyond. In advising a non-resident parent how they should react to extreme provocation I explain how a reasonable reaction will be used against them. They have to go beyond that as ANY AND ALL fault will be used against them. If that marker, those goal posts, that standard, was set and enforced for BOTH parents, perhaps both parents would be more likely to act reasonably and we’d see far less litigation. From my own personal experience and from hearing the experiences of many others it is very clear that the court does not address the reasons for conflict and does not act with even hand. Maybe compromise isn’t what is needed. Maybe compromise is the reason so much conflict drags out for hearing after hearing. Wouldn’t it be nice if there a consequence to unreasonably denying contact after separation. Surely that’s a clear indicator of an inability to act in the best interest of the kids. You are far too defensive of the court John and sadly many have seen that it isn’t as reputable once you take off the rose tinted glasses.

David Mortimer - August 30, 2017 at 1:40pm

The Government have got themselves into a muddle about the current law and how the law operates in practice. The Government has repeatedly maintained that case law safeguards the principle of the two-parent model; that is to say, the principle that children normally benefit from a meaningful relationship with both parents following separation, unless good reasons can be shown why that should not happen. In other words, they say that there is already a presumption of meaningful relations or meaningful contact enshrined in case law. But when it is put to them, that that presumption should be mirrored in statute, they say that they do not like the idea that presumption of reasonable contact should actually appear in the Children Act 1989. So their position is contradictory, and the muddle of it is compounded by your belief that the present law is all right.

The present law is not all right, because it cannot prevent thousands of blameless and loving parents being granted next to no contact with their children for no material or good reason. I an not talking dangerous or dysfunctional parents but about normal, loving, non-violent parents who have had to come to court repeatedly to prove to a judge why it is reasonable for them to have a meaningful relationship with their child. That is the effect of the current law. They do not enter the court with a presumption of reasonable or meaningful contact; they enter it with a presumption of contact of some kind, which may end up as two hours once a fortnight, for no material or good reason.

Case law does not help those parents. The Governments contention that it does is based on a fundamental misreading of case law and of the Children Act 1989. Certainly you can find in case law warm pronouncements by judges about the desirability of meaningful relationships between the child and both his parents. But if case law is to be useful as a precedent, it has to pass a test. It would have to be recognised by the Court of Appeal as having clear applicability to broad and recognisable categories of parents. It would have to provide a steer to the courts in cases involving those same categories of parent about how much contact time it is reasonable for the resident and non-resident parent to have. Nothing like that exists in case law, which is why I say that the Government has misled it’s self in referring to case law.

The question was asked in 2006: what is the definition of the term “reasonable contact”? The answer is that it can be defined by reference to units of time, dependent on the circumstances of the case, so long as those units of time are sufficient to deliver the desired end result, which is a meaningful relationship with the child. Most aggrieved non-resident parents will tell you that unless there is overnight contact, the chances of a meaningful relationship continuing are low.

The judge might say that in the best interests of the child, and to give the best chance of a meaningful relationship, it is reasonable for the resident mother to have 70 per cent of the contact time and the non-resident father to have 30 per cent. The apportionment is then translated into numbers of days and nights per year.

But all too often, material contact of this kind is denied or brought to an end for no material reason. It is brought to an end in the face of the resident mother’s emotional protests. It is brought to an end because the mother accuses the father of having repeatedly asked for the marmalade in a sarcastic tone of voice. It is brought to an end because the mother accuses the father of changing the time at which a meeting is to take place, thereby upsetting the domestic routine. There needs to be a good reason to deny a blameless non-violent parent reasonable contact time.

With only a legal presumption of contact, a non-resident parent can be sure of only one thing—that he or she will be awarded at least some minimal level of contact unless a good reason can be shown why not. No more than that.

The fact that there is a presumption in law does not mean that a court must make a contact order. If there is a good reason in the interests of the child not to make a contact order—usually because to do so would pose an unacceptable risk to the child—then there is no contact order. In the same way, if the Children Act were to provide for a presumption of reasonable contact, that would not put the child at a greater risk of harm. A presumption is only what it says—a presumption. If a good reason is shown to the court why there should not be material contact, the court will not make an order granting it. It would not be reasonable to do so.

So I say to the Minister, please take further legal advice. With one breath, he is embracing the presumption of reasonable contact, and with the next he is resisting it. By sticking to his current position, by resisting the idea that a presumption of reasonable contact should be incorporated into the Children Act, he is doing one thing and one thing only—rejecting the two-parent model for bringing up children. He is rejecting the golden principle that the child-parent bond should not be lightly set aside. He is going against what he says he believes about how children can best maximise their life chances. And because he does not acknowledge that a very simple change to the law is what stands between contentment and utter grief for hundreds, if not thousands, of parents, he has allowed himself to believe that the measures contained in the Children & Families Bill will do good. They will not, because they are conceived on the premise that there is nothing wrong with the Children Act provisions on contact. If you do not cure the root of the problem, you will not cure the problem, and the root of the problem is something that the Children & Families Bill does not touch.

Phil Whitaker - August 30, 2017 at 11:01pm

There’s a common misconception the ‘high conflict’ divorces involve two intransigent parties at war with each other, a prejudice this article and blog uncritically promulgate. Very many ‘high conflict’ divorces consist of one high conflict individual and one ‘normal range’ person trying to do their best in the face of a concerted attempt to destroy them. The all-too-frequent assumption that both parties are responsible for the conflict leads the family justice system to routinely fail the latter people, and actually abetts abusive individuals in perpetrating further harm against their former partners, frequently using their children as weapons.

John Bolch - August 31, 2017 at 10:02am

Interesting that you’ve got that impression, especially as the post specifically mentioned that sometimes it is clear that one party is at fault.

Linda Pow - August 31, 2017 at 1:21pm

Best to keep social services out of family life otherwise we are doomed by the reporting process starting from social workers and their management teams who like to hold the key through into yer bedroom doors…

What can one really say about the disturbing practices to the Judges…..?

John Bolch - August 31, 2017 at 1:33pm

Erm… not sure what this has got to do with social services…

Mr A Ward - September 6, 2017 at 9:54am

So – Mothers use the argument that the children do not want to see their father. Court orders: “The Mother agrees to promote and encourage contact between the Father and the children. For the avoidance of doubt this is much more than asking if the children wish to attend contact but that the Mother positively encourages contact with the Father and the children”.

The Mother then lies and insists that the children do not want to see their Father. Full stop, end of. Father does not see his children who he loves dearly and has looked after for many a year.

Why even after CAFCASS reports recommend that Father sees his children, do the Courts not order a Fact Finding on the children and mother separately or order child psychologists to be involved and find out the truths. This is what is wrong with the system.
The only lever available to the Father is financial. I suspect that is why many Fathers do not pay the full maintenance; they feel so aggrieved and badly done by, that the only way of seeking redress is to pay the mother less. In other words, Contact and Child Maintenance should be linked. John, you say they are not linked. We understand that, but they should be, this is where the Law falls down. Use the threat of financial sanctions to coerce her into behaving responsibly.

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