This is a post by Sarah Phillimore
As someone who spends a great deal of time complaining (legitimately) at the simply woeful state of our national debate about the family justice system in general and proceedings involving children in particular, I accept that it is incumbent on me to put my money where my mouth is particularly when I appear to have caused annoyance with some sound bite response.
@SVPhillimore Simplistic thinking, particularly for a family law barrister I would suggest.
— Jeff Botterill (@FamilyLawD) May 29, 2016
I invited Jeff Botterill to write a guest post for this site to which I could respond at greater and more nuanced length, but it does not seem that Jeff wishes to take up that opportunity, so I will hopefully start the ball rolling with this.
Jeff asked me to consider some articles, via a series of tweets.
One was from the Telegraph in 2009 which stated that children in a third of family break ups lose contact with their fathers due to ‘failing court system’. Another from the Telegraph in 2008 which stated that ‘fathers were powerless against vengeful mothers’. And finally an article from the Guardian in 2004 which stated that Munby J (as he then was) launched an ‘extra-ordinary attack’ on the family court system for ‘failing fathers’.
So what is my response to this?
First: these articles range from 2004-2009. Already that puts the debate on the back foot. A lot has happened in the family justice system since 2009 (some of it good, some much less good). I am not really interested in arguing about what things were like 7 or even 12 years ago – I would like to focus on the situation as it is now.
I would like to know what Jeff’s response is to the rather more recent research in 2015 that found that courts did not discriminate against fathers. However, I clearly can’t ignore the fact that these articles struck a chord with Jeff, and presumably would continue to strike a chord today with many others who represent fathers or fathers’ rights groups. So lets look at what they say.
The Telegraph article from 2009 states:
A quarter of the children said that they had been asked to lie to one parent by the other and 15 per cent said they had even been called on to “spy” for their mother or father.
Meanwhile half of parents polled admitted deliberately drawing out the legal process for maximum benefit and more than two thirds conceded that they had used their children as “bargaining tools”.
This article gains a little more ‘oomph’ than I would normally expect from something in the Telegraph because it quotes an actual lawyer who says:
“The adversarial nature of the system invites people to come and use the courts system as a punch up and the children get used as pawns,” said Sandra Davis, head of family law at Mishcon de Reya, for whom the poll was conducted.
“It polarises parents and it puts children in the middle of the antagonism.
“Some fathers back off because it is too painful to carry on litigating, they give up.”
But this is the problem. I simply don’t accept that it is the court system that makes bitter, angry people bitter and angry. I don’t accept that it is the court system that makes parents use their children as pawns in their horrible battles against one another. I don’t accept it because it is emphatically not what I have witnessed over 17 years.
As Julie Doughty said:
— Julie Doughty (@julie_doughty) May 28, 2016
Of course – the court system will certainly NOT help make people less angry or less bitter. Court is absolutely the last place angry bitter people need to be. But it isn’t the court causing this problem. It is simply that the court can’t really do anything about it. That isn’t a question of ‘fault’ – its a recognition of reality.
My very clear view, based on now nearly 17 years working in the family courts in both private and public law proceedings is that the law is a very blunt instrument for dealing with the misery and pain that comes from the toxic unravelling of a relationship; particularly when there are children involved – the ultimate hostages to fortune. It isn’t possible to simply imprison hostile mothers who are the primary carers of young children. What is the likely impact of that on the child? Fines have limited impact if someone has no money. The court has very few weapons in its arsenal to make the unreasonable, reasonable.
I have considered the law about intractable contact disputes in another post. It is clear that the senior courts agree with me – being a parent is a responsibility. Bringing another life into this world is a very serious thing and one that should not be considered lightly or frivolously. Because when it goes wrong, the shock and emotional fall out is considerable for everyone involved.
What the more extreme fathers’ rights groups such as Fathers 4 Justice seem to want us to accept is that all their members were just so terribly unlucky – to trip over and find themselves accidentally impregnating some awful woman who went on to make their lives a misery and thwart their relationship with their children. Presumably the reality is more likely to be that at some point, these men and these women met, formed a relationship, had consensual sex and decided to bring a child into the world. If they made this decision without really taking the time to get to know each other and to make sure that they at least liked and respected each other enough to co-parent well, then I am afraid it is their fault when things go wrong down the line and they find they lack the tools to communicate with or understand one another.
Maybe that sounds a bit harsh. Maybe love – or lust – is blind. But the one thing they cannot blame for their inability to communicate reasonably or respectfully, is the court system.
I am quite clear that behaving badly in court is not the sole province of either the male or the female. Both can and do behave very badly and their children suffer for it. For every article decrying the system failing fathers, there will be reports from other pressure groups saying it fails mothers by being far too soft on violent men. See for example the 19 Child Homicides Report from Women’s Aid.
So much of this debate is woeful because it is turned into a ‘them’ versus ‘us’ debate; the Evil Feminazis against the Violent Abusive Absent Fathers. Lucy Reed discusses this clearly in her blog post – Talking AT and OVER not TO and WITH – and I endorse all that she says.
What both ends of the polarised extreme can agree on however is that the court is to blame whenever something goes wrong. And I reject that, and will continue to reject it as a clear example of attempt to deflect responsibility to some external agency.
There is real debate here about what we need to do to stop the problem arising in the first place – better sex/relationship education at school? – and to provide better mechanisms for dispute resolution – more access to counselling/therapy?
But we won’t be having that debate when all happens is two opposing camps shouting at each other across an abyss. I accept that my experience is just that – my experience. Others may have different experiences. But equally, it is not reasonable to expect me simply to abandon my experiences on the back of some news paper articles now many years old.
But if I am wrong, if I have missed some fundamental point, I hope Jeff will reconsider and provide a response to this. What we need to do is think about how to make a bad situation better and encourage dialogue between all those on whom the family justice system has an impact – which is pretty much everyone.
EDIT 30th May
My fault for not being sufficiently clear. I am of course talking about disputes between parents where there have been no findings made against either of them. I am emphatically NOT talking about cases where there is clear, proven reasons for one parent to be very wary of the other – for example because of violence or false allegations made by one against the other.
I don’t think the courts are as bad as some claim at recognising the seriousness of domestic violence but I understand and appreciate that many disagree with me. For what it’s worth, my comment on the problem is that this prevailing culture of telling victims ‘we believe you’ is all well and good but it leads to some nasty shocks when actually in a court room setting where a Judge is not saying ‘I believe you’ but rather ‘show me the evidence’. And I accept it is often very difficult to ‘prove’ in a family court historical allegations for which there is no supporting evidence, such as police or doctors’ reports. People in relationships with violent and abusive people need help and support to get out as quickly as possible and to make sure their concerns about the other’s behaviour are reported to other agencies and well documented.