Definitely not how to deal with a children dispute!

family law

These days I am generally not in the habit of reading comments upon my posts here. However, the other day I was persuaded to read a comment made on my post last Thursday concerning the case P v C & Others, in which Ms Justice Russell ordered that the children continue to reside with the mother, despite previously finding that the mother had emotionally abused them.

The commenter Paul Apreda, a Trustee of the fathers’ rights charity Families Need Fathers, and also an occasional contributor to this blog, said that the post was: “An all too familiar story of the failure of the Family Justice system to act swiftly enough or with sufficient determination to resolve intractable contact disputes.” He recalled a conversation he had had with Sir James Munby, the President of the Family Division, in which he recounted the experience of a new attendee father at a support meeting:

“This man was in the process of splitting up from the mother of his children and had come along at the earliest stage to learn more about what might happen and how best to manage the process. He listened to the others at the meeting recount their experiences and progress of their disputes over child contact. When it came time for him to speak he said ‘So from what I’ve heard the only way for me to ensure that I remain in the lives of my children is to grab the kids, make allegations against my ex and refuse to negotiate.’ ”

Paul admitted to Sir James that he “had struggled to come up with a convincing argument against that approach as we all knew how effective it was”, and asked the President what advice he would give to respond to such a question in future. Unsurprisingly, Sir James said that he hoped that Paul would NOT encourage that sort of behaviour. Paul said he assured Sir James that he would not, but “couldn’t help feeling that we all knew that such behaviour was the most effective for men to ensure they are not excluded from the lives of their children.”

So, what are my thoughts on the matter?

Well, I can understand why some fathers feel that such behaviour may be their best approach, but I am fully with Sir James on this one, as I’m sure are all family lawyers, and indeed every professional involved in the family justice system.

There are many reasons why such an approach is wrong, not least because it is likely to backfire, as the court is likely to see through it and then take an extremely dim view of the father’s actions.

In fact, I could write at great length explaining all of the reasons why such an approach is a terrible idea. However, I really don’t think I need to say more than this: such an approach misses the point by a country mile. The point in any children dispute should be well known to all involved in such disputes, and that includes litigants without legal representation. It is absolutely fundamental, and there is no excuse for not knowing it: in a dispute about children, the single most important issue is their welfare. Everything revolves around what is best for the child’s welfare. The ‘rights’ of the parent, if they can be called that, are entirely secondary to the welfare of the child.

Behaviour like that suggested by the father at the meeting is all about the parent, and what selfish steps they might take to ensure that they get their way. The damage caused to the child by one parent snatching the child, making false allegations against the other parent and then refusing to negotiate can be immeasurable, and can stay with the child into its adult life (often with the child ultimately turning against that parent). Any parent engaged in such behaviour has completely missed the point.

Now, having said that every parent must understand that the welfare of the child is paramount, I do realise that for some parents it can be very difficult to work out what is best for the child’s welfare. Surely, their welfare will not be best served if they do not have an on-going full relationship with them, due to the actions of the other parent? Well, yes, it is absolutely true that in the vast majority of cases the welfare of the child dictates that they should continue to have as full a relationship as possible with both of their parents. But behaviour like that suggested above, even if it is in response to the alienating actions of the other parent, is simply replacing one ‘crime’ with another, with very similar damaging effects upon the child.

It is trite to say it these days, but we need to move away from this idea that a dispute over arrangements for a child is a battle between the parents, with one parent becoming the winner and the other the loser. The parent who succeeds in ‘getting’ the child through subversive behaviour, whether it be the mother alienating the child against the father, or the father snatching the child as suggested above, is only working for their own selfish ends, not the best interests of the child.

And I can already hear a chorus of fathers saying: what, then, do you propose we do when the mother is alienating our kids against us? The only answer can be that you use the family justice system (including negotiation and mediation). It is certainly not perfect, and it is even more difficult to navigate now for all of those fathers who can’t afford a lawyer, but it’s all we’ve got. Contrary to what you may hear elsewhere, it does work for the vast majority of fathers, and where it doesn’t work we must all strive to improve it.

Photo by Barney Moss via Flickr under a Creative Commons licence

Stowe Family Law Web Team

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20 comments

Cameron Paterson - April 19, 2018 at 12:57pm

In other words: two wrongs don’t make a right

DD - April 19, 2018 at 1:25pm

Interesting article, as you state “There are many reasons why such an approach is wrong, not least because it is likely to backfire, as the court is likely to see through it and then take an extremely dim view of the father’s actions.”

Can you explain why when a mother takes such an approach, the court does not take a dim view of it – what actions are ever taken against a mother that stops a child from seeing his father?
Equally, why does the court process take so long (years in most cases) before a reasonable amount of time is given for the child to spend with the father. During all this time the child is effected – this cannot be in the best interests of the child!!

The system is flawed.

Cameron Paterson - April 19, 2018 at 2:40pm

Transfers of residence – i.e. taking children from their mother and sending them to live with their father – are one option and they do occur. Here’s one example, which occurred when the mother alienated the children. Some of our readers like to claim that the courts never ever take action against recalcitrant mothers but that is simply not the case, however imperfect the system may be

spinner - April 19, 2018 at 4:46pm

The institutionally sexist family court is *very* quick to enforce any financial orders against men but will only in the most extreme situations as you yourself have pointed out this one case, act to enforce a contact order against a women. It’s to the point where the best advice for men to follow is that laid out above as the courts in 99.9% of cases won’t help men.

DD - April 19, 2018 at 9:10pm

Well Cameron, you managed to find one example. I could list thousands of cases where orders have not been enforced. The courts are a farce, the resident parent knows to well they can make false accusations and ignore court orders. The courts need to start standing behind their orders and take action on a regular basis, resident parents would soon stop breaking the orders. The courts would be less busy and the children would be able to have a proper relationship with both parents.
The reality is though, the legal system cares very little about the children, what it does care about is long drawn out cases and the money that can be made.

Cameron Paterson - April 20, 2018 at 1:45pm

Here’s another one

DD - April 20, 2018 at 1:56pm

Well done for finding another one – now how many court hearings have there been for enforcement in the last 10 years

Cameron Paterson - April 20, 2018 at 4:18pm

Interesting question. I don’t have a figure to quote, but here’s another column by John on that very topic, from a couple of years back, in which a mother is sent to prison for interfering with contact

spinner - April 20, 2018 at 9:29pm

That’s three then. Interesting comment on that last article with some actual figures from MOJ stats stating only 2% of child contact enforcement actions involving women ended in any action being taken by the court against the women.

So with no enforcement in 98% of cases, are you still trying to suggested men should bother with the institutionally sexist family courts?

Cameron Paterson - April 24, 2018 at 10:25am

That comment actually only says “only 2% of enforcement applications ended in an order for such”. We don’t know what other factors might have come into play in at least some of those cases – mediation, reconciliation, etc. There doesn’t mean to say there aren’t problems and reforms aren’t needed, but what’s the alternative to men “bothering” with the family courts? Simply writing off the entire system as “institutionally sexist/ biased” doesn’t take you anywhere constructive and is arguably defeatist.

DD - April 24, 2018 at 11:06am

Cameron, you know it, we all know it, courts only enforce orders as a very last and I mean very last resort. They try to reach other agreements, which generally means the non-resident parent ends up with less access, which ultimately ends with no access, which has always been the residents parents intention, which is why it ended up in court in the very first place !!!

BillyO - April 24, 2018 at 5:13pm

Well it does actually take you somewhere Cameron.
It saves you a massive amount of cash and heart ache. Walking away from the court and lawyers was in my opinion the best thing I could have done. I have no regrets at all.
Don’t see your kids or donate thousands to the industry or walk away. It’s that simple.
The people that walk away are not reported. No one can access reliable statistics. It’s an absolute farce.
Let’s forget about the Father and grandparents. The child has lost half of his or her family due to an completely failed system.
It’s an absolute disgrace.

spinner - April 19, 2018 at 2:02pm

Court makes a child contact order -> Court enforces child contact order.

Until the courts start doing this to women in child contact cases nobody is going to respect court orders, why should they when they know the courts are institutionally sexist.

BillyO - April 19, 2018 at 2:21pm

In an ideal world we wouldn’t be reading this hogwash.
I understand the fnf frustration with a system that claims to act in a child’s best interests. In reality it most certainly does not.
Sadly the lawyers spout from the text book and don’t really care as they are raking in a good living. The delays are often caused by the law “professionals” we are listening to.
The reality is that the lawyers manipulate the courts and drag out proceedings for their own gain.
And guess what? Because it’s taken so long due tother greed little Johnny no longer recognises his dad!
Wake up you idiots, you know what you are doing. You are in a position to make changes.
“the child’s welfare is paramount”….. Hogwash!

Spike Robinson - April 19, 2018 at 3:51pm

John, I think you have entirely missed Paul’s point, which is not that fathers should behave in this way – as you quite rightly say they would face severe sanctions – but that significant numbers of mothers DO routinely behave in this way and face no sanctions or ineffective sanctions, too little too late to change long term outcomes for the children, not least because the courts then accept the status quo, despite clear directions to the contrary. This is something no one with recent experience of the actual working of the Family Courts could fail to see.

Paul is basically being ironic and rhetorical.

Jerry Karlin - Chair FNF - April 20, 2018 at 10:30am

Not only has John Bolch completely missed the point which Paul made to the President, but he has innocently revealed the institutional incipient prejudices affecting not just the broad family law “industry”, but even a wider public.

The point Paul was making (and I was there) was that mothers regularly take the children away and make unfounded and incredibly damaging allegations against the father and get away with it, often being rewarded with legal aid into the “bargain”. So it was not surprising that the the father Paul was quoting innocently came up with what in an adversarial system, seemed entirely logical, was to do the same.

Paul did not (and neither does FNF) advocate such tactics – on the contrary, we abhor them as our branches come across them every day. How would any decent loving father with a good relationship with his children feel if he was suddenly faced with horrible allegations varying between DV, paedophilia, and child rape – with no evidence (or truth) whatsoever – only to find that these are being taken seriously even after it’s clear they are unfounded? In most cases such brutal and misandric allegations do not result in convictions and the judge is very aware that they are fabrications, but the father is still the victim of these allegations, and worse, the children are often alienated by being told by their mother of the allegations and that they’re true. Losing all contact with your kids while they and others believe you molested them is a fate worse than prison when you’re not guilty. And this happens regularly in many courts – at huge cost (not just financial) to children, parents and society.

The prejudices I am referring to are twofold. One is the belief that the courts and other involved parties such as lawyers and Cafcass receive separating couples, look quickly and professionally at the evidence provided, and then dispense firm and fair solutions to the couple thus safeguarding the children’s rights to having two parents. The other prejudice of course is that despite the shouts for gender equality which now (quite rightly IMHO) emanate from every sector of society, mothers are still asking for and receiving special treatment when it comes to sharing care of children after separation.

In more advanced countries such as Sweden, the public do not expect such behaviour and nor do their courts give mothers “favoured parent” status before ensuring safety and justice for children of separated parents. Our courts need to be fairer, intervene early in these disputes and to stick to their guns and enforce the orders they make – regardless of gender.

This is the point Paul was making – and not only do I agree with him wholeheartedly, but as I recollect, the President did too.

So come on John – you’ve told us how not to do it – and we probably agree that a sizeable proportion of family law outcomes are satisfactory if unrealistically expensive. Sadly for many thousands of children every year, when one parent (not always but usually the mother) refuses mediation and negotiation – what’s your proposal for progress?

And then perhaps we can have a separate blog regarding whether alienating a child and deliberately depriving that child of a relationship with one of its parents constitutes abuse (as recently at last acknowledged by Cafcass).

Spike Robinson - April 20, 2018 at 11:28am

Well said, Jerry.

Spike Robinson - April 20, 2018 at 11:27am

Yes “hear, hear” to the remarks of Jerry Karlin. Come on then John Bolch, you’ve dispatched the strawman argument that no one was actually advancing, can you address the real point that was agreed by the President – that a strategy of seize the kids, make allegations, (and litigate on them by all possible means), then absolutely refuse to negotiate. It’s a proven strategy that is reaping dividends every day in every Family courtroom in the country. What’s your response to it? Sir James had none.

Andrew - April 20, 2018 at 6:04pm

I don’t want women sent to prison for blocking contact. I want imprisonment to be so certainly the outcome of doing it that they don’t do it in the first place. Every order for contact should be endorsed with a penal notice – I cannot see why any mother would object who intends to obey the order – and the first breach should get you a suspended sentence which the second breach should activate; just like non-mol orders.

Helen Dudden - April 23, 2018 at 8:40am

Speaking from personal family experience of failings within international law, I add this type of behaviour seems almost encouraged. Blame free divorce is one option.
I know a case in Vienna, the husband stated his former wife was not fit too look after their twin boys. I believe little has changed over the years. She has to stay to keep the complicated access allowed.
For some of us, legal action is simply too costly. Tens of thousands needed to have justice. No funding, no justice.
For sometime, I have believed in the lack of power of the court system in the UK, when international law becomes complex.
Children do become alienated and lose the right and emotional closeness to the failing parent.
I’m working with a grandparents group desperate to have access to their lost grandchildren.
Mine was different, I do have access, nothing legal that never happened. I’m still the only contact from my family.
It’s a very sad situation, some grandparents may never have this, it causes great unhappiness.

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