This is a post by Sarah Phillimore. I am grateful for and agree with entirely his comments about the need for open dialogue and engagement with a variety of perspectives. He is also entirely right about the need for early fact findings. But I will remain politely sceptical about the ability of any suggestions for reform to make much headway if we fail to grapple with the underlying and serious difficulties that get in the way of resolving parental disputes about children; lack of judicial continuity, lack of legal aid and lack of consistent enforcement of court orders. Underpinnning all of these however, I will continue to maintain is the refusal to accept that courts are inevitably the wrong kind of arena to try and repair a fractured family.
We need to talk
McFarlane LJ began by acknowledging the respect that senior member of the judiciary hold for FnF and the need for dialogue. He recalled his days as part of the legal team working on the Norgrove review into family justice and the recommendations that produced to improve private law disputes:
to ‘make parental responsibility work’ by enabling parents to reach agreements, while ensuring that the child’s welfare remains paramount. We recommended the replacement of the pejorative labels of ‘residence’ and ‘contact’ with ‘child arrangement orders’. We recommended that there should be ‘a coherent process of dispute resolution’ starting with an online information hub to help couples resolve issues, moving mediation, MIAMS, SIPS and then, if necessary, to a tightly controlled court based resolution process conducted by the same judge throughout.
McFarlane LJ recognised that he has been far removed from the ‘coal face’ for some time now and will carry out over the next year vists and consultations at different courts with different groups to gain a proper understanding of the impact of those reforms, recognising of course that the removal of legal aid from many of these cases has brought its own problems.
I will comment here that it is surprising to find ‘contact’ and ‘residence’ labelled ‘pejorative’ although I accept they did tend to support an unhelpful ‘winner takes all’ attitude. Nevertheless, they are 100% less cumbersome and more easy to explain to a parent than a ‘child arrangements order’. However, there is no need for me to worry about nomenclature as it is clear that the media will never move beyond ‘custody’ and ‘visitation’.
The rather larger problem however is just how well on the ground translate such lofty ambitions as ‘making parental responsibility work’ and providing a ‘coherent scheme’ of dispute resolution. I suspect most lawyers and parents participating in the system would say ‘not very well at all’. The reasons for this are many and various and I will look at some in this post.
His address focused on three issues: Domestic abuse, alienation and possible future developments.
McFarlane LJ recommended that all those present read research published by Women’s Aid in May 2018 entitled “What about my right not to be abused? Domestic abuse, Human Rights and the Family Courts.” He accepted that this report had limitations; nonetheless it was an important piece of work, representing ‘the other side of the coin’ to the arguments sometimes made by or on behalf of fathers about the inherent bias in favour of women in the family justice system (an assertion which I just don’t think is true and have discussed at greater length in this post – Is the Family Court system biased against men?)
I agree it is vital for both sides of the debate to be heard; neither side has the monopoly on facts or truth and both perspectives need airing. I strongly suspect ‘the truth’ will be found more in the middle than at either side of the spectrum and bold assertions about male violence or female manipulation.
McFarlane LJ rejected a pre-occupation with agreeing a label for bad behaviour by parents. Rathe than debating if ‘alienation’ was the right label or a ‘proper’ mental health condition it made more sense to focus on the particular behaviour in question. He referred to the attitude taken towards Fictitious Induced Illness, which should be adopted for ‘alienation’.
If that behaviour was found to be abusive then action was taken, irrespective of whether or not a diagnosis of a particular personality or mental health condition in the parent could be made.
He accepted that ‘parental alienation’ was certainly ‘a thing’- and I agree:
I readily accept that in some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship. Further, where that state of affairs has come to pass, it is likely to be emotionally harmful for the child to grow up in circumstances which maintain an unjustified and wholly negative view of the absent parent.
Where do we go from here?
I was intrigued to see the comment about the importance of findings of fact.
It is, as I have already observed crucial, both to the interests of the alleged victim and, in fact, to those of the alleged perpetrator, for any significant allegations of domestic abuse to be investigated and determined as matters of fact, similarly any significant allegation of“alienation,” should also be laid out before the court and, if possible, determined on the same basis.
Anecdote from other practitioners and my own experiences, suggest that findings of fact are something the courts now try to avoid, which simply shunts the problem further down the line. If parents are utterly divided about the truth or otherwise of some really serious allegations then it is imperative that the ‘facts’ – in so far as they can ever be determined – are found. This is one of the key suggestions I make for attempting to avoid cases of implacable hostility bedding down over years.
My own recent experience is of yet another case where allegations were first raised in 2013 about issues starting in 2011. Two successive CAFCASS officers raised need for fact finding – no court ever ordered it. The case fizzled out in 2018 with no orders for contact and a child who had not seen his father since 2013. This is sadly not an unusual scenario, at least in my own experience.
He also suggests more thought about an ‘Early Intervention’ Strategy
At the core of the EI approach is the need to manage the expectations of parents as to the post-separation arrangements for their child from the earliest point. Key to this approach is the issuing of general guidance on what a court would regard a reasonable amount or pattern of contact to be (in cases where there is no safeguarding risk to the child); to be of weight, such guidance can only come from the judiciary.
EDIT – ‘the new normal’
The Transparency Project commented today about ‘the new normal’ suggested by McFarlane LJ, i.e. investigating possible judicial guidance on what is a ‘normal’ range of contact whilst outcomes are decided. This is an interesting point on which I should have commented.
The Transparency Project say:
This guidance, if agreed, could apparently take the form of ‘standing temporary orders’ which would aim to maintain reasonable amounts of safe contact while issues were being resolved. Such an idea will no doubt raise many questions about the individuality of cases and the welfare of each child, so it sounds like a very useful exercise to consult widely across these topics. If the lower courts are reluctant to follow PD12J and make findings – why is this? And what are the potential effects of new Cafcass guidance sending its practitioners down ‘abuse’ or ‘alienation’ ‘pathways’ before any determination of the facts has been made by a court.
I welcome any initiative to promote more consistent and coherent decision making in the family courts, so that parents can have a better idea of likely outcomes. However, it will be very interesting to see the results of consultation about this because certainly at first blush it appears to offend against the other important consideration – of early decisions about the actual FACTS in each case, to inform a welfare decision about what is best for each individual child. If anyone can identify the ‘one size fits all’ – I would be interested to know what that is!
I am very pleased to learn that McFarlane LJ is to embark on a year long process of consultation and dialogue and his speech marks a welcome beginning. The commitment to talking, listening and understanding is self evident. He is right to press for both sides of the debate to listen to what each other is saying – for too long I have been complaining about the harmful and chilling impact of rhetoric and polarisation in this field. He is also right to recognise the key importance of early fact findings. However, and of course, there are many more issues that need to be addressed and some – possibly the most important ones – will require some financial investment and clout that will not come from simply talking about them. Three of the key issues, in my view, are lack of judicial continuity, lack of legal aid and lack of consistent and rigorous enforcement of orders. This three issues bleed into one another. All will need tackling.
But, at the heart of it all I go back to my now wearily familiar mantra. The family court cannot hope ever to solve the problems of family dysfunction. It isn’t the arena, it doesn’t have the tools and is unlikely to ever get them. The key solution – in my mind – is for better education at the earliest opportunity for our children. What makes a healthy relationship? What discussions and agreements should you be having with your partner before you decide to bring a new life into the world?
The suggestion that we could do more work on ‘early intervention’ would seem to be supporting my views here; expectations need to be managed at the earliest stage, rather than suggesting the family courts can work miracles and render the unreasonable parent reasonable. I would rather have commitment to rigorous and early education/discussion about healthy relationships but this will do for a start.
Contact – a point of view Lord justice McFarlane March 2018
The Woeful State of Our Debate Part 8: Men versus Women Child Protection Resource Online May 2016