Compulsive litigants must take responsibility for their actions

family law

Family breakdown is emotive. Of course it is. And it’s quite understandable if, driven by those emotions, one or both of the parties behave less than reasonably towards the other. But the emotive nature of family breakdown does not excuse parties from continuing to behave in an unreasonable fashion towards one another for years after the separation, especially where there are children involved.

These (admittedly unoriginal) thoughts came to me over the weekend when I read the first line of a law report, which went as follows:

“The Appellant … and the Second Respondent … have a son … (N) who is now 15. For most of N’s life his parents have been in litigation about him.”

Now, fifteen years is a particularly long time, but how often have I read similar things in judgments? Here is another example, from a case heard by Mr Justice Cobb in 2015:

“AH has been the subject of almost continuous litigation between her parents for nearly three years.”

With little effort I could find another dozen such examples.

I’m sorry, but I’m getting sick of reading things like this. I know I’ve written here on more than one occasion previously about the phenomenon of continuous litigation (see, for example, here and here), but the damage that such behaviour causes to lives is so great that the issue really needs to be highlighted as often as possible.

And of course such behaviour is not just limited to court proceedings between the parties. The struggle is often extended beyond the courts, for example into social media, the real media, or fathers’ rights groups (Fathers4Justice were involved in the case I read at the weekend), resulting in what can only be described as ‘total war’ against the other party. Unfortunately nowadays the internet gives parties easy access to a wide audience, and many are only too happy to take advantage of this, in the erroneous belief that gathering others to their cause will somehow strengthen their case.

And when I’ve raised this issue previously the automatic response of those who are guilty of such behaviour, or who support such behaviour, is to pass the blame to others, primarily to the family courts, or to the family justice system in general. Never once have I come across anyone who has put up their hands and admitted that it was their fault.

Now, the system may not always be helpful (I am the first to say that it is not perfect), and it may be at fault for providing too many opportunities for parties to perpetuate the struggle. However, the primary blame for this compulsive litigation (and more) must lay squarely at the feet of those who instigate it. Ultimately, it is they who are responsible, and no amount of passing the buck can hide that fact.

I realise that there will be those who read this post with mounting anger at what they see as an attack upon them. However, the purpose of this post is not to ‘have a go’ at anyone, but rather to advise, and above all to discourage this sort of destructive behaviour.

And in case you doubt that this sort of behaviour is destructive, consider how it wastes and blights lives. It wastes the lives not just of those who have to spend years dealing with it, but also of those who spend years continuing the struggle by all available means. It also blights those lives, causing great stress and preventing the parties from moving on. Above all, it causes huge damage to any children who are forced to stand by and watch as their parents pursue a never-ending war against one another. It is also very likely to crystallise the views of the children against one, or even both, of their parents.

So, before you escalate the struggle with your former partner, whether by making yet another application to the court, or by taking it beyond the court, stop and think of the effect of your actions, not just upon the other party but also upon yourself and, above all, on any children involved. Family breakdown may be emotive, but it is not the starting gun for a war against your former partner.

Photo by Phil Whitehouse 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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11 comments

Mr T - October 3, 2017 at 7:47pm

I get it both people are not going to be happy but I guarantee you that whenever you force someone to do something they don’t feel is just or right they will not stop until they have what they feel is justice.

Equally family courts have a responsibility to ensure both parties are happy with the outcome or at the very least let each party feel like they’ve had their say. Until they do this and provide some kind of customer satisfaction these cases will continue indefinitely.

Stopping the bias against dads would go a long way to solving a large percentage of these litigants.

Paul - October 3, 2017 at 7:58pm

Insane. Take a wrecking ball to peoples family life moan when they keep coming back to try an get some sanity. The system does not work. Peoeple can’t accept it because it makes no sense.

Seriously - October 3, 2017 at 8:15pm

That’s all very well until one comes up against someone with a personality disorder, then you are dragged into continuous conflict and chaos just to protect yourself from the control that the narcissist tries to exert upon you post separation that was at first present during the marriage.
If you don’t stand up for yourself the bullying continues and the judical service turns a blind eye to it, and /or judges are not educated in mental health and so do not recognise or understand that they can become part of the problem by aligning to the unwell parent. The judical system is supposed to protect and recognise that abuse within the marriage more often than not continues after separation, So wake up Judges and be bold not submissive and worry that the work load may take up too much Court time and be expensive, stop making decisions with a full fact find !

Dr Grumpy - October 3, 2017 at 9:14pm

After my FDR I was left without a house and a severe dent in my pension! My friends said that the result was not fair so I appealed. The decision was reviewed and found to. E wrong. So what would’ve happened if I hadn’t appealed? She would’ve got the lot! She only got my house because of our kids 2 of which have autism! No sooner had she got the house after the appeal she starts dumping the kids on social services so she could pursue her latest romance! What does it take to show the family courts what is going on? Some litigants have to keep on as the judiciary seem blind to the truth

Jo Archer - October 4, 2017 at 4:54am

I don’t think anyone would go anywhere near the courts if they had an alternative. It is all too easy to assume one of the parties is a vexatious litigant, when their case has not been properly managed from the start. Children’s needs change, circumstances change and the courts do not appear to be able to respond fast enough or to consider the wider context. Of course, there are individuals who use the process to abuse former partners but can you distinguish between parents who are trying to obtain the best for their children and parents who are only interested in evading their responsibilties and spending disproportionate amounts of money to help them do so? What may appear to be continuous litigation may actually be in response to behaviour that is largely invisible to the courts – the only possible response, by that stage. Don’t forget, there is no legal aid in family cases anymore and that is affecting the resident parents far more than not.

Peter Davies - October 5, 2017 at 4:37pm

Hi John

‘With little effort I could find another dozen such examples.’

Having recently completed a lengthy dissertation I have already also expended a little effort making searches of intractable cases which often get patted ad nauseum from judge to judge in the lower courts without anyone getting to grips with the issues. Perhaps John, if you took a little more care and made a little more effort then you would also have found cases like A (A Child) [2013] EWCA Civ 1104.

This is an extreme example where the litigant father was found to be ‘unimpeachable’ whilst the mother’s behaviour had sadly suffered from a long history of mental illness. The case spanned 14 years, involved 82 court orders, 7 judges and more than 10 Cafcass officers. This dad was not found to be obsessive or vindictive. He merely loved his kid and was using the last remaining legal means available in order to preserve a relationship which was desirable to him and, as the court subsequently found, in the best interests of his daughter. There was no doubt that the mother had always been implacably opposed to contact with the father and to the extended paternal family. Furthermore, whenever the child had contact with father the court found that it was positive and the child clearly loved her father.

The judgment catalogues a litany of failings which the appeal court concluded were in serious breach of both the appellant father and his daughter’s article 8 rights to a family life. ‘While McFarlane LJ did not conclude that the outcome ordered by the judge was, of itself, wrong and therefore to be set aside, he was sufficiently concerned about the process of these proceedings as a whole, which he had held had violated the Article 8 rights of both the child and her father, and also by the deficits in the judge’s analysis to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’.’ (See family law weekly). The case was subsequently retried.

If you had probed only a little more deeply you would also have unearthed judgments like F v M (Re D) heard by Munby P in 2004. Yet again the father was found to be unimpeachable and Munby P made a clearly embarrassed and public apology. There are others too and a few such cases, one involving a transfer of residence, have been summarised relatively recently in this very blog. I am not asserting that all fathers are saintly. We all know that they actually come in all sizes.

Sadly, the courts, by their own admission, can and do get it badly wrong. The only sin committed by the fathers in these cases was to misplace their trust in the system and remain paternally and loyally devoted to their children in spite of a system where cornerstone principles such as the ‘no delay principle’ and the enforcement of court orders are widely regarded as optional. Blaming litigating parents under these circumstances is comparable with victim blaming in domestic abuse cases. Indeed, the wrongful withholding of contact can be a coercive and ergo abusive behaviour.

John, in conclusion I think we can be forgiven for having little sympathy with your sensitive digestion. Victim blaming, even when the victims have penises, is unacceptable.

In reality, even during the halcyon days of legal aid, the vexatious or obsessive litigant was always been a rarity and largely mythical entity because legal aid was only available to those on relatively low incomes. Any father, apart from the stupidly rich, would have to pay legal costs, would be too busy working to fund them and would not have the ridiculous amount of time needed to languish in the courts anyway. Now that legal aid has almost been eradicated frivolous applicants are a virtually extinct breed who are usually restrained by s.91 (14) orders long before they get anywhere near the higher courts and publication.

If you can be bothered to read the responses to this post and disagree then please list the cases that support your bias and explain the criteria you apply to determine whether proceedings spanning many years are the fault of the courts or of litigants. Since most cases are dealt with privately, with the help of mediation or heard and dispensed with in the lower courts and seldom get published, I think we can wish you all the best in your efforts to substantiate a perception which can only really be supported by a desire to create mischief, gut feelings or restricted personal experience.

Mr T - October 5, 2017 at 7:24pm

Jesus Christ

This is an extreme example where the litigant father was found to be ‘unimpeachable’ whilst the mother’s behaviour had sadly suffered from a long history of mental illness. The case spanned 14 years, involved 82 court orders, 7 judges and more than 10 Cafcass officers. This dad was not found to be obsessive or vindictive. He merely loved his kid and was using the last remaining legal means available in order to preserve a relationship which was desirable to him and, as the court subsequently found, in the best interests of his daughter.

These are precisely the cases and most importantly the CHILDREN and their FATHERS that the family courts totally and utterly fail.

Jo Archer - October 8, 2017 at 4:33am

It would be very interesting to know what research had been conducted into cases where the father has not made any attempt to contact their child in the first 12 years of the child’s life, only to apply for parental responsibility in order to give them a greater ability to control and coerce the mother and use the legal system to do so.

We hear plenty about fathers who are denied contact with their children, but not so much about women whose integrity, nay sanity, is cast into doubt by the father’s highly-paid lawyers while the women, themselves, have no representation.

Stitchedup - October 9, 2017 at 1:02pm

Oh, that old chestnut! the deadbeat, absent father who after 12 years suddenly decides he wants to coerce and control the mother and use the legal system to do so. I imagine they’re few and far between Jo, and fade into insignificance compared to the number of fathers who are denied contact with their children as a result of parental alienation through the mother, who has enjoyed the full cooperation of the feminist courts and other agencies to paint the father as a dangerous, violent, abusive monster. Would the research really be worth the cost?? would it be loaded research?? because you appear to suggest you’re looking for a pre-determined result, like much feminist sponsored research.

Mr T - October 9, 2017 at 1:33pm

Sounds like a concerned dad to me and mother has a PD herself but therein lies the problem doesn’t it? People with NPD, BPD etc also have issues with denial. Probably don’t even realise they have an issue because of ego defense mechanisms like projection or deflection etc.

Mr T - October 9, 2017 at 1:35pm

Normal people or parents don’t stop their children seeing their other parent. Disordered ones do. Unless there are genuine (not fabricated) safety concerns.

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