Why does everyone hate the Family Court ? Part Two

I am grateful for Emma Sutcliffe for this guest post. Its been an interesting month for thinking and talking about why the family court seems to inspire such strong and invariably negative feelings. I first wrote about this on January 8th where I shared two narratives from two parents – a mother and a father, both with a very different perspective but united in their fear and distrust of the process they had experienced. 

Then I heard Professor Jo Delanhunty QC’s Gresham College talk, wishing the Children Act 1989 its happy 30th Birthday, and her clear and urgent reminder that the ethos of the Act was in serious danger of being undermined by the lack of resources now provided to support what it wanted to do – to recognise the child as the heart of every decision and to enable parents to care safety for their children. 

Short on the heels of this, I had to then consider the astonishing allegations of Victoria Haigh; who appears to be developing a presence as a ‘campaigner’ against the family court system without apparent concern or criticism from others in this field and despite the very serious findings made against her about the harm she inflicted on her own child. I can only assume the lack of challenge to her more fantastical assertions stems from the fact that they ‘feel right’ to a lot of people. This is depressing indeed. 

So what do we do? I have very little power or influence. But that’s the same for  most of us. Acting alone we can achieve little. But if we come together and were prepared to talk – openly and honestly – I want to believe that we could achieve something positive. 

So I am very grateful for Emma for sticking with our conversations on line, not always easy for either of us at times, and producing a powerful articulation of how and why her reaction to the family justice system was so negative. 

 

Why do people hate family court?

Emma Sutcliffe

People hate family court for the same reasons they hate hospitals; something pathological has happened to you that you cannot resolve alone and you have to put your life in the hands of people who are deemed to be more expert about your condition than you are. If you’re in family court you’ve likely been through something painful, there’s no guarantee it will stop hurting and the interventions themselves cause bruises. There’s also a hefty bill at the end and the surrounding quality of life direct and indirect costs of loss of earnings and utter exhaustion. Plus … like lots of diseases, it might not go away, it might come back; next time it could be fatal.

Why the determined correlation with medicine? I’m trying to align what I know with what I’ve experienced – knowledge of facts and wisdom of interpretation. I’ve been a medical writer for 25 years following a degree in medical biochemistry and application of that in the research and development of medicines. My entire nature is that of enquiry and fact-based decision making and behaviours. I believe in logic, cause and effect, sensibly following ‘doctor’s orders’.

I’ve also spent too much time in family court as a petitioner which saw 18 hearings in 22 months. My faith in facts, practitioners and the sensibility of court orders was put to the test before, during and after every one of those hearings. It was like preparing for surgery.

Let’s cut to the end result to be able to get back to the original question of ‘hatred’: although technically ‘I won’ — as in the contact order I applied for (on police recommendation) was granted — the experience was like surgery without anaesthetic where you leave feeling as though the presenting diseases may have been excised but fragments of infection are lingering away in septic reservoirs leaving with you a body and mind too reversibly damaged to recover and parent well. ‘Our case’ was just a lose:lose for the entire family. Both families; the old and the new and the penumbrae of families around us.

Our case had its ‘final hearing’ (an oxymoron if you consider that toxic parenting is a chronic condition) more than a year ago. I’m still haunted by the ghosts of hearings past and have my very own reservoir of Post Traumatic Stress Disorder leaving a lasting impression. The reality of the court orders is that unlike doctor’s orders, I’m already forced into breaking them and live every day with the fresh fear that CAFCASS will find me to be in breach and my ex husband will take me back to court. Because family court transacts on what has happened and assumes that children’s needs are fixed. Funnily enough, children grow and change whereas court orders don’t (without another set of injurious hearings reopening wounds) and as I now have a sentient, articulate adolescent determinedly refusing to stay at Dad’s house that essentially turns me into a criminal and opens me up again to allegations of the never-proved, academically derided ‘junk theory’ of parental alienation.

Like Andrew Wakefield’s infamous MMR causal link to autism saw him struck off yet the myths still perpetuate; parental alienation accusations conveniently drown out what ironically is ‘the voice of the child’ – child says ‘this is happening to me; I don’t like it’, CAFCASS officers respond with ‘they’re too young to know what they’re saying, they are the mouthpiece of the parent’. Pick a lane please. By all accounts, therefore, if recent judges’ blunt condemnations that ‘alienating mothers should be subjected to a three-strikes and you’re out’ – or imprisoned – then who knows if my next blog will be about life behind bars?

Therein lies the promulgation to distrust, fear, anger — hatred.

Despite living in purgatory, I have been able to step back and consider what in the hell happened there. My observations are that, like medicine, where a diagnosis, prognosis and treatment is sought through sedulous investigation of symptoms to reach a purely factual outcome – so too does the law of family court (specifically the implementation of ‘The Children’s Act’) rely on facts to achieve a sensible outcome that secures the best outcome for the child. As such, both the practices of medicine and law are ones which rely on its participants and processes being underpinned by integrity and accuracy. Trust should therefore be implicit.

However, neither medicine nor law accommodates human nature and emotions – which when put under pressure will contort and eclipse rational and logical decision-making. When afraid, hurt, confused or distressed the easiest of the emotion to employ is anger. Family court is that A&E part of the hospital where anger dominates; complex decisions are being made amidst a melee of jargon, allegations, process and manipulation. It becomes too easy to archetype ‘all mums are histrionic and cry wolf on domestic abuse’ or ‘all dads are intimidating and claim parental alienation’. However, this isn’t about gender – it is about which parent is the angriest parent in family court because they are more likely to be the one also prepared to be the most ruthless; to take the greatest risks. When parties enter the court they will each know how to attack and defend and how far the other is prepared to go.

The hate of family court is the knowledge that parties will default to their character type and court processes and practitioners by their very need to be thorough and percipient to protect a child have to also be open to the angriest party’s determination to exploit those people and processes in continued pursuit of punishment.

People hate family court because it prolongs the pain of punitive pursuit.

I could further my anecdotes and detail the utterly ludicrous allegations postured at me that I had to defend. But that would be pointless precisely because I was able to defend them thanks to a brilliant barrister and very caring solicitor who, importantly, were able to get me to listen all the while that my anger and fears were raging towards a maelstrom that possibly would have seen me lose custody of my own children and only be permitted supervised visits. If my ex had got his way and the full force of his anger and risk-taking of out and out lies had succeeded in influencing the judge as they biased the CAFCASS officer throughout proceedings then this story might have been very different indeed and even have seen our children placed in the care system. I won’t comment on the allegations because that’s the subject of a different blog (how narcissistic parents behave in court).

But that is why only relying on ‘facts’, denying how emotions can influence behaviours and seeing things in the fixed black/white process of the law is merely sticking a plaster over a seeping wound. People hate family court because it is sterile and doesn’t accurately reflect life outside the chambers. The law is fixed, but life is fluid. And people’s emotions over their children will always spill over … the angrier, the louder, the more heinous the allegations, the blunt threats and brinksmanship of disingenuous practitioners … when faced with the prospect of fight or flight, most mothers without strong legal support will run.

There needs to be allowance for the emotions of all parties and just as a good doctor seeks to help the physical and holistic needs of a patient; so too must family court consider the importance of helping and communicating that it should be a place for resolution rather than fuelling hatred. That can only begin when we seek to align knowledge of facts and wisdom of interpretation.

41 thoughts on “Why does everyone hate the Family Court ? Part Two

  1. Maxine Melody

    Very eloquently put. It reflects my own experience as, I am sure, it will many others. The only difference being that i was a litigant in person, as many are. No one to hold my hand through the numerous appearances. One time he turned up with a very recognisable QC as his McKenzie friend. Scariest days of my life. And now, like you, I run the risk. Four children making choices for themselves as three are now teenagers. Try making a 6ft 15 yr old do something he is adamant he will not do!

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  2. Anonymous for a reason

    Mandatory psychiatric evaluations on the door. Family Court is not a suitable playing field if either of the parents have a psychiatric disorder. There needs to be a separate system that kicks in where it’s clear mental health is driving proceedings. It’s disgraceful how people are left to deal with the aftermath of a disordered person’s behaviour and equally as damaging for the other person who is vulnerable and not capable of dealing with the process. Children can’t chose their parents but they would surely hope to goodness that an adult would step in to stop them from destroying the other/each other.

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    1. Sarah Phillimore Post author

      Sounds good but sadly we cannot force people to undergo an evaluation unless they are so dangerous to themselves or others that they require sectioning under the MHA. There are some real ethical difficulties with any other proposals. And in any event, people who are resistant to assessment are highly unlikely to co-operate and the outcome of the assessment is not going to be that useful.

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  3. Angelo Granda

    I go along with that Sarah, decisions should be taken on FACTS ALONE,
    a standard order for the disclosure of GP records is proportionate to Family proceedings. If there is a history of mental problems, they will be detailed within the medical records and any diagnosis will be at the head of clinical letters .If no such diagnosis in the records, that FACT means there are no mental problems on the simple b of p, on which cases are to be judged. If there is no such diagnosis, then any allegation and call for a psychological examination by any party or non-medical professional is probably subjectively made in the interests of litigation. That is neither fair nor proportionate.

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  4. Angelo Granda

    Anonymous for a reason, I agree also with your comment. Indeed i believe there are real ethical difficulties all round when Courts stray from the facts and choose to go for vague ‘assessments’, ‘evaluations’ ,’predications’ based on ‘antecedents’ and all other professional opinion.
    I mean that whatever is driving proceedings. It’s all about fairness and proportionality.Psychological or any other subjective assessments are nothing to do with facts. The only fact which matters would be a clear medical diagnosis and,if possible , a prognosis. Any psychologist will tell you that it is impossible to make a clear diagnosis outside a clinical setting and without keeping a subject under careful observation for a few weeks at least. Then once, a clear and definite diagnosis is made , only then can the psychologist start working on a prognosis after commencing therapies.As Sarah says, the assessments are not really very useful. Except to a Mum’s opponents,of course, who will obviously point out every negative within the speculative assessment.
    Proportionate hearings and fair hearings are a human right and the two concepts are closely entwined. It is completely unfair to call on vague assessments and evaluations and use them to ‘prove’ vague, undefined cases against anyone, especially when they are instigated after the commencement of proceedings . Why is it so unfair? Because it is impossible for the respondent to ‘prove’ their own claims. One cannot fairly disprove professional guesswork even if one gets a second opinion based on more guesswork. When cases are serious enough for a Court to order removing children from a parent’s care,stopping contact rights or for interference in citizen’s rights in any way ‘proportionality’ calls for a genuine diagnosis carried out by a real hospital .
    For a respondent to have any chance of proving his or her claims in Court , the matter at issue has to be clear and definable.
    This is why I have been saying for a long time now that Family Courts do not give fair hearings and our human rights are contravened . Article 6 ECHR means that interference which impairs the very essence of our rights to a family life,as removing children does , is illegal without a fair hearing .
    The threshold criteria are indefinable even after 30 years of the current Children Act. There is no openness and honesty, parents are not told what is expected of them because the professionals cannot define what the criteria are themselves. If respondents don’t know what it is they are trying to disprove and the criteria are so low ,apparently, then , yes, let the Courts issue care-orders at the Judge’s discretion but no way is it fair or proportionate to remove children at the Judge’s discretion. This is why people hate the family Courts.
    If mental health is the main driver of a case, then complete and proportionate evaluations must be made BEFORE even applying for an order.

    Also, all harm to children is significant thus it is impossible for them to prove or guarantee there is no risk of it! By the same token, it is impossible for any parent to ‘prove’ or even keep a child 100% safe. Nobody else can!
    Thus for reasons of ‘fairness AND proportionality,in my humble opinion , strict limits must be set on Family Courts as with other inferior courts. Keep families together and help them reduce risks.I hope all this makes sense to readers.
    I hope this helps us understand why non-professionals are so critical of the system. We are right to be. It’s the system we detest not any individuals so any professionals reading this,this is not an attack on you.

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  5. Emma

    Facts, like data can be distorted, omitted and communicated to create such a cognitive dissonance, offence and flood of cortisol that people are literally ‘not in their right minds’ or rather are in their right minds for survival to a perceived threat.

    Perceived threat is like pain — every brain is wired slightly differently so has different pain thresholds and threat thresholds.

    In the absence of strong legal support those facts become just building threats.

    Facts are not the truth: just like cells are not an organ. It’s how the cells work together or don’t that determines function. As such facts alone do not present the truth.

    As to psychological assessments. I think they should be mandatory in family court and also there should be no allowance of outdated psychological theories that represent the trend of the day. ‘Splitting’ for example has ambivalence but is used to force a proposition of alienation and grounds for recommending a change of residency — but is ‘diagnosed’ based on one vulgar test on one random day on the child being tested.

    In medicine a coterie of lab tests and differential diagnosis is part of the work up — eliminating the absolute impossible and leaving everything on the table until the only removing possibilities provide a likelihood of a diagnosis.

    In law the recommendations made by a Cafcass officer or a guardian are based on rushed, inexpert and absurdly broad assessments with non-sequitur recommendations. It comes down to the ‘performance’ of the child in a fraught and peculiar circumstance (questioning under duress!) and the pressure of the officer to secure the ‘facts’ expediently to ‘shrink to fit’ assumptions.

    Meetings with children are never recorded so we never get to hear tone of response or style of questioning. Hence ‘facts’ are liberally to justify a recommendation already pencilled in on reports.

    I’m curious to know how many reports contain facts obtained under this circumstances.

    Because those facts are then subjective. Which defeats the objective. Literally.

    One solution — record all meetings with children and ensure both parents hear the recordings. And that all parties lawyers hear the tone of the questioner.

    Reply
    1. Sarah Phillimore Post author

      But ethically, how can you compel people to submit to psychological assessments if they don’t want to? And – perhaps more pertinently – who is paying for this? Given large majority of people won’t be able to afford to pay privately for an assessment.

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    2. Caroline May

      Hi Emma. Are you the same Emma Sutcliffe who wrote this article? I’d be interested in getting in touch with your barrister. I agree and coming from the side where I too have dealt with a narcissist who subjected me to significant abuse, it seems the courts hardly care. To be honest he still does. He told me if I ever left him he’d do this to me and he’s still making our lives an utter hell while smiling sweetly like the perfect person in court. My very complicated proceedings are only starting but I’ve realised I won’t get anywhere if I don’t have the right person representing me

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      1. emma

        Yes Caroline. Same Emma. Sorry to take so long to reply — I found writing this article and the response to it quite overwhelming! My barrister and solicitor were incredible because they understood the importance of getting me to truly listen to what was going on in the court and they saw for themselves what I was facing; they knew the law and the circumstance and how to help me put my emotions aside (very hard) and think logically. I’m happy to give you their details. Sarah will need to advise how to let you have my email address.

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  6. Angelo Granda

    How do you compel people to submit? Easy, usually their own solicitors will merely tell them they have to have the assessment,it is normal and expected of them and that should they refuse to co-operate with ‘enquiries’ it will be held against them in court, that adverse inferences will be taken and that their children will be removed from home permanently.
    Just to let you know how these things work in practice.Any ethical difficulties are generally ignored.

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    1. Sarah Phillimore Post author

      Ok. so you’ve dealt with that part of the problem. Now tell me – who is going to pay for all of this?

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      1. Angelo Granda

        I can only make the same point i made before on another thread bearing in mind that it is the task of investigators to establish freely available facts ( such as diagnoses and prognoses) at no cost well BEFORE proceedings commence. This will be by the use of mediation and consultation with GP’s and medics .
        If they fail to do that and doubts cause the Judge to order a psychological assessment, then they should pay for all of it.
        In Public Law cases, that should be the LA. In Private Law cases, it would be the party making the allegations.

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  7. Anonymous for a reason

    Hypothetically speaking I agree with Angelo that GP notes are a first port of call and surely there is an ethical concern for Solicitors/barristers who aren’t furnished with this information before heading off into territory where they act on behalf of some who has diminished capacity by the virtue of a diagnosed psychiatric disorder.

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    1. Sarah Phillimore Post author

      All I can say is that it is very rare to have an expert reporting who does NOT have the GP notes; that is one of the first things we ask to be disclosed to the expert. Sometimes notes do get mislaid or can’t be found, but in my experience this is rare and certainly no competent expert should agree to report without them, or if there is no choice the report should make it VERY clear what is lacking.

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      1. Angelo Granda

        I can believe it is unusual and should not happen but it was a clear example of a case not being conducted correctly. The GP notes, the specialist Alcohol team report and lots of other relevant background was not provided to the psychologist.
        The main point is that you often say that evidence is always tested and so it was in the story. However, as I have often said, it doesn’t matter how much evidence a respondent proves wrong, it doesn’t matter. No matter what it is, it can be swept under the carpet at the judge’s discretion.
        Thus, surely it is unfair. often It’s a waste of time arguing evidence in the lower court or at appeal as was proven by the story. The only way is to argue on the basis of correct procedure and guidelines not being followed.

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  8. Angelo Granda

    I hope you don’t mind if i relate a short story for the interest of readers explaining why one family ‘hates’ the Family Courts. It is not invented narrative and i will be interested in any other such tales.
    CS reported that a Mum was a drunk and alcoholic.
    No concerns about drunkenness or alcoholism in medical history notes supplied by GP.
    For the Court hearing,she agreed to the Judge’s recommendation which was to undertake a thorough assessment by the experts of the Community Drugs and Alcohol team.
    The assessment was held over a period of several weeks by these experts who sent a report to Court that Mum had no problem with alcohol. Although inexpert themselves, CS reported that they suspected she had probably deceived the EXPERT assessors throughout the assessment.They also kept reporting that Mum was erratic and ‘smelled ‘ at contacts although over several weeks no-one was able to say what the smell was!
    Neither the GP medical history nor the professional drugs and alcohol report were made available for the psychological assessment by the Guardian who compiled the instruction letter. In fact the psychologist claimed later he had been told (falsely) Mum’s medical notes were unavailable. In his assessment ,psychologist reported that if so many SW’s claimed she was drunk that she ‘probably’ was.
    Notwithstanding either of the favourable pieces of professional evidence , Judge found at her ‘discretion’ that Mum was a drunk.Mum lost her children. Mum had co-operated fully with the Court agreeing to disclose her medical notes and to the Alcohol team assessment, both were positive for her but both were ignored on the strength of the ‘probablity’ in the psychological assessment.
    Mum advised by her barrister no grounds for appeal!

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    1. Anonymous for a reason

      Sounds like the facts were made to fit the feelings. On the subject of ‘experts’ they would only be called in in more complex or protracted cases? What if the first time you hear about your clients diagnosis is in the court? I don’t want to come across as feeling too sorry for either of the parties in that case but my sympathies would to an extent lie with the diagnosed parent who maybe hadn’t understood that not disclosing their conditions might have changed the situation or meant that they weren’t in a position they fundamentally weren’t able to handle. What my original suggestion was was that mental disorders should trigger a different process by which it’s acknowledged from the outset that adversarial processes would harm the child.

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  9. Angelo Granda

    Anonymous for a reason, I understand and agree with the points you make and Yes, all solicitors should make it their duty to establish clear facts before going into the arena and ,of course, where a Mum or a child has a diagnosed medical condition of any kind that will be an extremely relevant fact.
    That is why guidelines and working frameworks are stipulated in the Children Act. Unfortunately the Court does not enforce them strictly. A thorough investigation of facts is essential ,advocacy and mediation with parents and other professionals should be the norm. For all sorts of reasons, the LA ignores procedure. Also, ofttimes when they obtain relevant evidence,they shelve it if it does not support their litigation to replace it with vague opinions and assessments.
    Whenever any guideline is flouted ,in my opinion, the test for proportionality should be applied and the no order principle followed. To be ethically correct ,that is.

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  10. TC

    I have read this may times and have held my tongue’;

    REDACTED

    I have removed this comment.
    You are not welcome on my site.
    You were extremely rude and abusive to me.
    You have failed to apologise.
    you continued to harass me via email.
    you utterly lack insight into your own failings as a parent and continue to parade yourself on social media as some ‘victim’ of children’s services who are ‘jealous’ of you.
    Do not comment here again.

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  11. Angelo Granda

    The trouble is that i am thinking about Public law proceedings and others thinking mainly of Private law ones and this causes confusion.
    I have never been involved in a private law dispute but I would imagine that the proper thing would be for a thorough investigation of facts to be undertaken before any proceedings by an impartial barrister appointed by both solicitors; the investigator might then make his report to an impartial arbitration service in an effort to avoid court proceedings.
    Please note that in other disputes ,arbitration and conciliation is the norm and usually successful. For example, in industrial relations . I suggest readers look into the practices of the Advocacy,Conciliation and Arbitration Service (ACAS) . This service has been in existence for several decades and solves hundreds of workplace disputes which are often very heated and complex. Something similar in private family tug-of-love cases should perhaps be established.

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    1. Sarah Phillimore Post author

      Yes, alternative dispute resolution such as mediation etc is often successful in other types of disputes but has been very heavily pushed in field of family law but failed to take root. This is because the nature of disputes about children are very different to commercial arguments etc. There is considerably more raw emotion, panic and fear. That does not bode well for rational decision making. Mediation does not appear sadly to have made any dent, certainly not in the more intractable cases.

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  12. Angelo Granda

    I understand your comment and agree there is rather more emotion,panic and fear involved in Family Court disputes.This post is called ‘WHY DOES EVERYONE HATE THE FAMILY COURTS PART 2’ and clearly it is the intractability of these disputes which must be addressed.
    I am not too sure whether there are working together frameworks in Private law but in Public, a requirement for advocacy and mediation is actually included the intention being to preclude intractable attitudes and stances.
    Mediation is essential ,in my book, to eliminate any possibility of irrational decision-making. If readers will look on the WHY DOES EVERYONE HATE THE FAMILY COURTS PART 1 thread , i have gone into a little bit of more detail about the essential qualities of mediation and arbitration and you will see how the process eliminates intractability because the ‘possibility’ of bias is not present in the actual decision-making process.

    Family Courts have very, very limited tools to deal with the resolutely unreasonable and we appear to agree that a major problem is that the most ‘abusive’ parent ‘wins’. I think the success of alternative disputes resolution is largely down to the fact that the the Court arena is avoided . i agree that the adversarial nature of the court system can often inflame matters , a factor which is counted out by the arbitration model.
    Of course,if one party refuses to accept a decision and , they still have their right of access to a court. That essence of that right will not be impaired, however the ensuing court decision will be subject to limitations.
    The decision of the arbitration service shall be produced at Court and the essentially factual and individual nature of the inquiry (including the elimination of bias) should not be glossed with legal concepts which would produce a different result from that which the factual inquiry produced.
    For example , no party would be able to make false allegations or muddy the waters by requesting psychiatric assessments. The Court would rely on the full and complete factual investigation which had already been produced.
    I am sorry if i am long-winded but i hope this makes sense. Don’t forget the need for mediation has already been well-thought out by the law-makers and is desirable according to frameworks, even if not an absolute requirement.
    I suggest it should be an absolute requirement.

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  13. Angelo Granda

    In Public law disputes, mediation is pushed and laid down in guidelines.
    As with so many guidelines, LA’s choose deliberately to disregard correct procedures in their own interests not those of children.
    They won’t wish to foot the bill for a start.Secondly,they prefer to avoid freely available facts and enter their own wild guesswork based on hearsay into proceedings in order to procure children for their own illegitimate aims so they refuse to engage even when a parent pays for his or her own advocate.

    So the judiciary is at fault for not enforcing guidelines.
    Mediation cannot possibly make a dent unless it does!

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    1. Sarah Phillimore Post author

      No its not. Possibly it should be. But there is certainly no agreed or funded framework for mediation in public law disputes. There have been attempts at ‘settlement conferences’ but now seems to be conceded that these don’t work; I think they have been set too late in the process and should not be conducted by judges.

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  14. Angelo Granda

    Yes,you are quite right ,Sarah; the mediation and conciliation should take place at the outset well before proceedings. An independent service should be appointed to carry out a full,impartial investigation of facts.
    If i may add another criticism of the judiciary. In my experience , the Judge administering a C.O.P. case running in tandem with a Family Court one actually issued a Court order that there was to be a pre-court meeting for mediation with the intent of reaching an agreement. The parent responding to the DOLS application was perfectly willing and able to participate ,went home and awaited the meeting. The Court order was flouted, the parent’s own solicitor went along with it and the LA went on to put much false evidence to the Court. The parent wanted to appeal and amongst the complaints was that two court orders were flouted by the LA. The solicitor refused to put in an appeal!

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    1. Angelo Granda

      I believe it was McFarlane it was who proclaimed in one of his past judgments that it is actually the duty of the SW to carry out a thorough impartial investigation into all the facts and circumstances of each case ( which are all different) at the outset and his or her simple task to report to the decision makers what they find. It is the SW’s job to be the honest broker ,to advise parents as to advocacy and so on in order to assist the family and get professionals such as medics and teachers already involved with a child/children and their parents together to work together and keep families together.
      Of course , this does not happen in practice does it? Our retired SW wrote in a post that SW’s take it upon themselves to ‘prove’ significant harm and there is no such thing as an impartial investigation and report! A fundamental flaw for sure and Sarah, you recognised the ‘two hats on their head’ sickness. In other words, the conflict of interests due to the toxic connection between the CS and the LA. See the thread entitled ‘What is significant harm and how do we prove it?’.
      Rather than investigate facts, the LA lawyers examine the initial referrals, questionable data ,past antecedents etc. then decide on an application and ‘instruct’ the SW’s from there on in with the emphasis on proving significant harm. This is a very fundamental flaw .Very often , the CS flaunt fair procedures and don’t actually even involve parents in any enquiries,simply saying ‘see you in court’. They don’t mediate or seek the facts from parents! The supposed investigators are themselves closely involved in the decision-making process with all the dangers that brings as regards bias and pre-judgment.The ACAS model stipulates that an investigator taking part in decision-making is deadly.
      If the CS are to carry on in such a way where they are employed by the LA thus compromising neutrality then an independent service pre-proceedings is a necessity for justice to rule.
      In private law where the two parties are so at loggerheads , independent arbitration is essential before proceedings too.
      All opinions welcome.

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      1. emma

        Can I get some responses on the following, which are not hypothetical:

        1. What about when one party refuses mediation?

        2. Or when a mediator completes MIAM with one party then after MIAM with the other party then describes the situation as not suitable for mediation because of the behaviour of one of the parties. That then forces the court situation?

        From my perspective that is the aggressor forcing the arena of the court. Should this be highlighted as the unreasonableness of one of the parties?

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    1. Sarah Phillimore Post author

      Mediation Intake and Assessment Meeting. Now compulsory in all private law proceedings. but easy to dodge – basically one side just says they don’t want to do it. Crucial point of mediation is that it is VOLUNTARY. No one can be ‘forced’ to mediate.

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  15. Angelo Granda

    Nevertheless,in my opinion,if the mediation is compulsory in private law as you say, it should not be dodged by either party.The only crucial point is that one’s rights of access to a Court is maintained. Thus one can VOLUNTEER to accept the intervention aspect i.e the mediator’s arbitration or not. No-one can be forced to accept it but if they don’t ,’intractability’ raises its ugly head.

    I am not a lawyer but i can only see two scenarios, either the case involves children or not. If not, it must be financial with no children in the family.

    If the former, then the children take precedence and intractability discouraged because it may cause emotional harm to them. So i repeat what i said in another comment above. The decision of the arbitration service shall be produced at Court and the essentially factual and individual nature of the inquiry (including the elimination of bias) should not be glossed with legal concepts which would produce a different result from that which the factual inquiry produced.
    For example , no party would be able to make false allegations or muddy the waters by requesting psychiatric assessments. The Court would rely on the full and complete factual investigation which had already been produced. GP records will have been investigated by the mediators but wild guesswork,for example, that ones opponent is mental and calls for psychological opinion will be inadmissible.
    If the latter, a dispute over money, when a party will not accept the mediator’s intervention voluntarily and insists on going to court, again the arbitration decision should be sent to Court and neither party should be able to rely on hearsay evidence or ‘allegations’.It should be inadmissible. The only evidence acceptable will be ‘real’ evidence and that would mean full disclosure of bank accounts,balances, tax records, income and outgoings etc. etc.
    Emma, regarding no.2 on your list, in my view,and remember i am no lawyer that it may be intractability on the part of the aggressor which may be unreasonable or it may be because of the method used by the mediator. As I discussed above, mediation must be fair and impartial and must preclude any possibility of bias. As with ACAS, the investigator must submit a factual report only and play no part in the arbitrator’s decision.

    If the possibility of bias exists, the losing party can argue and argue ad infinitum and ,of course, HE MAY BE RIGHT, which is why family court disputes go on and on and on and everyone ‘hates’ them.

    I look forward to the responses of others.

    Reply
    1. Sarah Phillimore Post author

      Mediation is an entirely voluntary experience otherwise it can’t work. Its about the parties to the mediation being willing to listen and to bridge the gap between them. They must WANT to reach a settlement. I am afraid many parents don’t. What they WANT is to hurt the other parent. To think ‘mediation’ or any form of dispute resolution is a magic solution to that kind of motivation, is hopelessly naive.

      Reply
      1. Angelo Granda

        Is MIAM compulsory in private proceedings as you wrote or was that a slip of the keyboard? It can’t be entirely voluntary if it is.
        BTW , if one party wants to ‘hurt’ the other and insists on court proceedings rejecting mediation, then one magic solution would be that they be forced to pay an increased court fee ( say £10,000) AND pay for the legal representation of his or her spouse/ex-spouse plus the child’s legal representation ( CAFCASS).
        Sarah, We know these intractable cases in court cause emotional harm to children ( and the primary carers as a result) . Can the primary carer refuse to co-operate and attend proceedings in court without both parties co-operating with mediation first? In the paramount interests of the children.

        Emma ,i do think it should be highlighted that refusal to accept mediation is unreasonable .The aggressor is unlikely to accept the Court decision because it IS open to bias.

        Reply
        1. Sarah Phillimore Post author

          It is compulsory to attend a MIAM.
          It is not possible however to enforce subsequent attendance at MEDIATION
          People go to the MIAM and say ‘I don’t want to mediate’.
          Mediation therefore doesn’t happen.
          Which is right. You cannot force people to mediate.
          It goes against the very essence of mediation as a voluntary activity.

          Reply
  16. Angelo Granda

    What is mediation?
    The parties don’t mediate . The very essence of independent mediation is that a mediator mediates between the two parties after meeting both ( separately) and hearing both of their respective positions and arguments.
    I understand it is compulsory for the parties to attend the MIAM. They don’t meet and argue, they merely present their case .The mediator listens to both cases,INVESTIGATES the actual facts using relevant documentary evidence and by interviewing and gaining statements from witnesses and then submits the case to a decision-maker for impartial arbitration.

    Far from being naive, the process has proven to be successful in other highly contentious and apparently intractable disputes e.g. those between workers and management.

    Do we all share the same understanding of the word mediation? In divorce cases, the two parties don’t meet; their respective solicitors don’t either, they just investigate facts and present them for mediation. The decision-maker acts accordingly.

    Reply
    1. Sarah Phillimore Post author

      no. You don’t understand mediation at all. The mediator does not take on that role. The mediator provides a safe space for the parties to reach their own agreement.
      you are confusing ‘mediation’ with ‘arbitration’ I think.

      Reply
  17. Angelo Granda

    Obviously, the whole meaning of independent advocacy ,mediation and decision is confusing.From what I can gather from the dictionary advocacy means advice AND intervention. According to frameworks parents are entitled to an independent advocate or friend to mediate with their opponent ,present their version of the facts etc. and to intervene decisively where the two versions differ.Also,I suggest,they should intervene when the LA conducts a case incorrectly and abuses procedures.
    We should make efforts to clarify exactly what the Children Act intends when it recommends working together and independent advocacy by a service such as the FRG.
    Thanks for discussing.

    Reply
  18. Angelo Granda

    I agree with this sentiment expressed by the post writer above and ,as I have commented , we should establish exactly what the Children Act intends and set out a clear framework.

    QUOTE: But there is certainly no agreed or funded framework for mediation in public law disputes. There have been attempts at ‘settlement conferences’ but now seems to be conceded that these don’t work; I think they have been set too late in the process and should not be conducted by judges : UNQUOTE.

    Perhaps Sarah will help by explaining why she thinks the process should not be conducted by the judges? The professional mediators proclaim that the judges ( i.e. the decision-makers,arbitrators ) should never be involved in the mediation process and fact-finding exercise. Why not? Because subsequent decisions will be affected by personal impressions of the parties , by all the non-factual evidence, by personal value-judgments,biases etc. etc.
    That is not a fair process but readers will see that this is actually what happens in Family Courts. The protocol allows judges to decide matters at their own discretion. Another argument in favour of juries in serious cases,in my opinion.
    All comments welcome , hope this helps.

    Reply ↓

    Reply
    1. Sarah Phillimore Post author

      Because mediation is entirely different to a court hearing. Because judges are not trained to mediate. It’s a terrible idea. In my view.

      Reply
  19. Angelo Granda

    Thanks . I think that cases go very wrong at a very early stage in proceedings at Magistrates Courts which often don’t do a genuine fact-finding exercise at all ( for example the recent 15 hearing involving the father who wanted his kids back ).
    The Judges at the later hearings in the Family Court assume the facts have already been proven and that might be why they take against respondents who continue to argue and present disagreements,why they won’t spend much time re-examining the truth of facts and matters relied upon by the LA and appear so biased towards the authorities. Plus why they sometimes frown upon or even exclude any detailed cross-examination of LA evidence.
    They rely on the reports of so-called facts put before them without question just as the arbitrator does acting for ACAS. Of course they don’t want to waste valuable Court time and they are very,very busy sometimes going from courtroom to courtroom hearing more than one case at the same time.
    There is so much wrong with the system but I have noticed that when appeals succeed , it is found that big mistakes are made early on. Usually ICO’s are issued without due attention to facts by Magistrates,i think, and that is usually before qualified barristers enter the fray.

    Reply
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