Behaviour and the limits of court power

family life

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

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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7 comments

David - September 5, 2017 at 9:43am

What about the rights of a child…?
Surely both parents should both respect and abide by this???
All too often children are used to get at the other parent… weapons but in doing so almost always impacts the child’s future development….

In my humble opinion more should be done to protect the child/ children from this despicable behaviour from any adult whom should quite frankly know better…

In my case we did record separated parents course covered by the author of this blog not so long ago only for all the tips pointers and assistance to be ignored. I will find a way read the other parents suffer things like children being sent with no clothes despite financial provision provided by the absent parent to fund these or indeed communication lines blocked so as to control the Childs communication again with absent parent. In isolation petty combined together has a serious impact upon future behaviour and development.

Until parents wake up or are dealt with what does the future hold when a child is put in this position especially when they might be faced with a similar position in their adult lives…

David - September 5, 2017 at 10:11am

Sorry my original post was done on an iPhone and its predictive texting has made the post illogical so here it is again – corrected.

What about the rights of a child…?
Surely both parents should both respect and abide by this???
All too often children are used to get at the other parent… weapons, but in doing so almost always impacts the child’s happiness and future development….

In my humble opinion more should be done to protect the child/ children from this despicable behaviour from any adult whom should quite frankly know better…

In my own situation we did attend the separated parents course run by the courts which was covered by the author of this blog not so long ago. However all the tips, pointers, and advice was ignored in my case by mum.
Like many others I have read where they have to suffer things like children being sent with no clothes despite financial provision provided by the absent parent to fund these or indeed communication lines blocked so as to control the child’s communication with absent parent so unnecessary and uncalled for. In isolation – petty, but combined together has a serious impact upon future behaviour and development of the child.

Until parents wake up or are dealt with what does the future hold when a child is put in this position, usually stuck between a rock and a hard place who no doubt loves both parents unconditionally. why cant anyone think to the future especially when the child might be faced with a similar position in their adult lives…and how they react is learned behaviour and at the moment certainly in my situation makes me very frightened of what is to come.

All in all whilst i except that courts can do little – lets face it how many times do we see a court order broken and where the parent with care gets away with it because they are the PWC… i think the rights of the child should be upheld and protected by the law which then may stamp out most of the childish behaviour shown by some…

Paul - September 5, 2017 at 11:45am

John Bolche. This is the first inteligent post ive read on this thread. It will be my pleasure to answer. Now this gets to the heart of the problem. This is the question which you need to be thinking about.
What you have just said is.
We the courts have acknowledged there is a problem with the behaviour of ‘some’ Parents (this is known as Parental Alienation) an Alienating Parent can influance a child so it is impossible to comply with a court order and we have no effective way of stopping that behaviour from taking place.
This behaviour occours frequantly. In lots of Child contact cases. (Cafcas estimate 80% of cases)
We know that this behaviour causes harm to the child. This has been proven by several psycological studies. We also know that this causes distress and fustration for the NRP. An NRP who are trying to do their best by the child and comply with the courts order. Who have also been through considrible hardship expense, time and emotional investment to get to the point where a court order is in place.
Its unacceptible for NRPs to have contact fustrated when the NRP has done everything asked of them by the court proccess.
So we need an effective measure to deal with this situation.
As things stand this is undermining the work of the family courts and leaving children at the risk of emotional harm from an Alienating Parent.

That is what you have just said. For the first time i find no fault with what you have said. You have simply said the courts have no effective way to deal with Alienation or Alienating parents. First step to sorting a problem is acknowledging a problem.
Your response is to simply shrug your shoulders and carry on business as ushual.
We can’t do anything so why bother ?

This is what fustrates so many fathers.
You see their is a problem.
Sit down with child psycologists. Sit down with fathers rights groups. Sit down with solicitors and Judges.
Work out a way you can rework this system so this problem does not occour.
If solicters take the intiative and talk honestly about this problem then soliciters can be sure they remain part of the proccess.
The system cannot deal with Alienation.
Alienation breaks the current system.
Their is a really big problem.
Someone needs to design a solution.

That is all that fathers rights groups are asking for. Acknowledge there is a problem and sort it out.
The Law is not infalible.

To carry on as things are knowing this is not right and JUSTICE is not been done is CRIMINAL.

Paul - September 5, 2017 at 12:16pm

We are told in this court proccess that the safty and needs of the children are put first. We know that PAS harms children. We know that this proccess helps and facilitates Alienation. It gives an alienating Parent all the tools they need to effectively ‘Alienate the Child’
So what is the point of the current proccess if children come out of it harmed anyway ?
This system we currently have effectively does nothing but cause damage and lasting harm to familys.
You stop the child from ‘alledged’ emotional abuse of the NRP by stopping contact. If you get it wrong the child is harmed by the emotional effects of PAS.
So either way the child is going to suffer emotional distress.
Only differnce is the court have taken away the childs relationship with the father.
There are thousands of alternatives. What we have in place is the worst possible system to deal with family break down. Unfortunatly non of the solutions involve courts or solicitors. Thats why nothing changes.

John Bolch - September 5, 2017 at 1:13pm

Hi Paul,
My post wasn’t entirely about parental alienation – I just used that as a particularly bad example of litigant behaviour. Nevertheless, your comments raise a number of points that I think merit a further post. I will put it together and it should be published in the next couple of days.
Regards,
John

Paul - September 5, 2017 at 1:39pm

I look forward to it. I appreciate it was about forcing people to be reasonable but alienation is a prime example of that.
In a way courts are entirely able to control behaviour by ruling in favour of those who have behaved most reasonable. To my mind in most cases by ruling in favour of the most reasonable party you would probably get the best outcome. A child should be raised by parents with the capacity to reason.

yvie - September 5, 2017 at 3:04pm

The fact is mothers/fathers drip poison subtly into the ears of their children against the other parent hoping eventually that the children will come round to their way of thinking and despise a once loved parent. In my opinion, the courts will try to take some form of action when the children are fairly young. As the children get older, the alienating parent will manipulate the child and take a chance that the court will do nothing, as invariably the courts will decide that the children are old enough to decide for themselves once they reach a certain age. This sounds reasonable in theory, but what happens is that one parent effectively destroys the relationship of the child with the other parent. It is the cruelest thing any parent can do to a child. Is is child abuse and what is done about it – absolutely nothing.

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