Behaviour and the limits of court power
By:7 commentsSeptember 4, 2017
I wanted to expand upon something that I have mentioned in a couple of posts here recently, something with which some have taken exception. I have said that the courts can’t force parties to behave in a reasonable fashion. This is something that relates to all types of family proceedings, but is I think particularly relevant to proceedings concerning arrangements for children, so I will concentrate on them here.
It seems that some people believe that the courts can force parties to behave in a reasonable fashion, or at least that they should do more to ensure that they do, so I thought that I would explain exactly what I mean. It relates to the limits of the court’s, or even the law’s, power.
Obviously the court can order parties to do things, within the limits of the courts’ powers. Thus, for example, a court can order a mother to make a child available for contact with the father, at a certain time and place. If the mother wilfully fails to obey the order without good excuse, then the court can take enforcement action against her.
But what if the mother says that the child was so adamant that he/she did not wish to see his/her father that the mother felt it impossible to comply with the order? Okay, that may (or may not) be a good reason for not complying with the order, but if it was then the next question would be: why was the child so adamant that they did not want to see their father? The answer to that may well be found in what the mother has been saying to the child.
But thus far the court has made no orders restricting what the mother can say to the child. The mother has not gone against anything the court has said. Even if she had said something to the child, the chances are the court may never find out about it. The likelihood is that it was said in the privacy of the home, with no witnesses present. The court cannot monitor the mother at all times.
But if the court did find out that the mother had been alienating the father from the child it could make an order restraining her from saying or doing anything that was likely to alienate the father (or accept an undertaking from her to that effect). It is true that that would (or at least should) go a little way towards making the mother behave in a reasonable fashion, but it only deals with one type of behaviour, and there is still the problem of finding out if the mother does breach the order or undertaking.
There are many other ways that the mother may behave unreasonably, so as to frustrate or impede the father’s contact. She may on occasions be a little late in having the child ready for contact, technically disobeying the order but not sufficiently to warrant further intervention from the court. She may simply use inappropriate language when the child is handed over, or at other times when contact is supposed to take place, for example via social media. She may ensure that the child’s phone is uncharged when the father is due to ring the child. The list of possible unreasonable actions is, quite literally, endless.
And that is just for the mother (or ‘caring parent’) in a contact dispute. The father can also behave unreasonably, as can both parties in a financial remedies case, or any other type of family proceedings.
I suppose that there are two types of unreasonable behaviour: that which is so bad that it warrants a response from the court, and that which is too trivial to warrant a response.
If the behaviour is bad, then a response from the court may or may not put an end to it, but the court can usually only respond, and not anticipate (although it may try to anticipate obvious issues). Sometimes the damage may have already been done.
As for trivial, niggling, issues there really is little to be done, unless they accumulate and become sufficiently serious. Very often the courts will simply have to appeal to the parties’ better nature, for example for the sake of the children – we see such appeals quite regularly in reported judgments.
I hope it will be seen from the above that there are limits to the court’s power to make parties behave in a reasonable fashion. Unfortunately, the court simply can’t be on hand at all times to ensure that parties do behave reasonably, and responding to unreasonable behaviour is often either impractical or unsatisfactory. I know that this will not be what some people want to hear, and I understand how frustrating it can be to deal with an unreasonable party (believe me, I had a lot of experience at that). I’m also sure that there are times when courts could, and should, do more. In the end, however, the idea of the courts making the parties behave reasonably at all times is simply unrealistic.
Image by Quinn Dombrowski via Flickr under a Creative Commons licence
September 4, 2017
Categories: Family Law