Why does everyone hate the family courts? And what – if anything – can we do about it?

The is a post by Sarah Phillimore, with a significant contribution by two parents; a mother who nearly ran and a father who has now lost a relationship with his child. I am very grateful to both commentators. In our various exchanges we have at times doubted each other’s good faith but have persevered  to try and have a conversation about something important. 

In November 2018 I attended a conference in London where it was asserted very clearly by a speaker, with the enthusiastic assent of almost all the (female) audience, that family courts were tools of misogynistic oppression and decisions were routinely made in favour of violent and abusive men who used accusations of  ‘parental alienation’ against the mother as a cloak for their own abuse.

In January 2019 I became aware of Ellie Yarrow Sanders who had ‘gone on the run’ with her 3 year old son just before a ‘significant’ court hearing involving his father’s application for contact. The Transparency Project have written about the background to and media attention around this case.

A petition has been organised to allow the mother to ‘tell her story’; already circulating on the internet is a letter purportedly written by the mother about how she felt she had no choice but to flee the father’s abuse. The Women’s Coalition who support the mother, have referred to the Judge in the case lying and ‘distorting evidence’; it is asserted that the appointment of a guardian for the child necessarily means he is going into State care – which is of course, not true.

They comment further

The Women’s Coalition is launching a counterattack to this public lynching of a wonderful mother, just like in the Samantha Baldwin and Rebecca Minnock cases [see link below]. Both cases engendered much public outrage about judges taking children away from loving mothers and giving them to controlling and abusive fathers. Help make this post go viral too!

The difficulty with this analysis of course is that Rebecca Minnock was found to be ‘manipulative, truculent and attention seeking’ and to have caused emotional harm to her son; he no longer lives with her. Samantha Baldwin gave her children drugs and made false allegations against their father. 

So what the Woman’s Coallition says no doubt feels very true to them. But has found not be to true on a number of occasions. Of course, no doubt they will say this is due to the (male) Judges who actively hate women or can’t be bothered to educate themselves about the extent and nature of male violence.

On the other side of the debate of course are the groups such as Fathers 4 Justice who will assert that women are no more than hysterical alienators of children and that the family court system bends over backwards to meet their every spiteful demand.

So what is going on? why are the two sides of the discussion so polarised? Why is our public discourse about this so often hysterical and toxic. so unwilling to admit any shades of grey to a narrative of ‘abusive men’ or ‘lying women’.

I had an exchange recently with one visitor to my site ‘John’ who was commenting on my post “Are the Family Courts biased against men?” Our initial exchange was quite dispiriting. We were both rude to each other. However in some post Christmas miracle, we were both able to reflect on our mutual NY resolution to be more mindful of our language on line and John made the following comment which I set out below in full.

I think it is an articulate distillation of the fundamental issues – which I think boil down essentially to pain, fear and distrust. There is little wonder that father and mothers can end up seeing the same situation in radically different ways; their perception and understanding clouded by pain. But equally there is little doubt the the system itself often operates to make things worse. I have commented before and at length as to why I don’t think the court system is ever the best place to attempt to unpick toxic and failing relationships  – but it is our only place and it is surely better than deciding a case on the basis of who can gather more ‘likes’ and clicks on social media.

Like John, I now consider the only way to attempt to counter the persistent and dangerous flow of false information, fear and misunderstanding is to open up the family courts to greater public scrutiny.

EDIT Jan 9th – I have now included an account from a mother who gives the other side of the coin. She nearly ran but didn’t as she was lucky enough to find a lawyer who had the time, patience and ability to explain what was going on and help her anxiety.  I agree that this is a very important part of the problem – too often I think lawyers make assumptions about what parents understand or worse, don’t even care that  much. A necessary survival ability to ‘switch off’ when dealing with human distress and misery on a daily basis, can if left unchecked develop into a callous lack of concern. If parents are finding it so hard to understand what is going on, those of us who are lawyers have to consider more carefully what part we are playing in this.

John’s story

“Grief fills the room up of my absent child,
Lies in his bed, walks up and down with me,
Puts on his pretty look, repeats his words,
Remembers me of his gracious parts,
Stuffs out his vacant garments with his form”
Shakespeare – King John

The above sonnet will resonate with many readers since this is what it feels like when you are cut off from your child. I would like to start by remembering that Fathers and Children have feelings, as well as mothers.

I can appreciate, that working daily in the Family court system you must encounter many occasions where people have helped to create or compound the problems they now grapple with. I am sure that the courts also have to deal with lots of cases of genuinely vulnerable, at-risk children. However I feel that it is rather too glib and superficial to maintain that the system is not at fault – it’s the people using it! If I may draw an analogue – if I were to design a car that required an expert driver otherwise you would crash, it would not be an adequate defence to maintain that it was the driver’s own fault that they crashed.

In a similar way, surely it is reasonable to expect a court system to provide maximally just and equitable outcomes. Maximum happiness with flawed material, if you like.

Of course I, and many others, tend to view the Family court system through the prism of their own experiences. It makes objectivity tough. I would also expect that the people who tend to contribute to blogs like this, are those that aren’t happy.

I do feel that an important factor is the secrecy surrounding the family court system and the consequential lack of reporting on, and analysis of decisions. It makes gathering accurate metrics and statistics hard. There seems to be a lot of anecdotal evidence, particularly with the rise of the internet and social media. Social media is not the best platform for a sensible debate.

I mentioned earlier that I read somewhere that the great majority of the time in the UK, the child resides with the mother. I honestly can’t cite the source. But unless we also know how many times that decision was contested, or was it by mutual agreement, and the circumstances, then we don’t have all the facts to formally establish bias (or lack of).

Without facts from careful analysis of hundreds of thousands of cases, we are tempted to fall back on ‘belief’ which is often founded on personal experience or on hearsay that confirms our prejudices.

I recognize that the court has a responsibility to protect the interest of the child. I also feel that the court has a responsibility to ensure that both parents are treated equally justly & fairly.
If we take it true though that the child ends up with the mother most of the time, then I feel that it follows that if the court must protect the child, it must also may, to some extent give greater protection to the parent the child now lives with, which could lead to an unequal treatment of resident v non-resident parent.

Another problem is the adversarial system that promotes conflict. It also provides employment and income to a great many people and there is an awful lot of vested interest in continuing that – and there has been for hundreds of years.

Anecdotally, many ‘resident parents’ knowingly engage in false accusations of abuse or in behaviour directed towards parental alienation as a means of exacting revenge against their ex-partner. They are assisted by lawyers who have a vested interest in promoting conflict.

There do not seem to be many instances where that behaviour is punished and reported on. The one I recall reported was a case from 2004. Interference with visitation and blocking of access has certainly been my personal experience. Am I the exception or the rule? Hard to say without statistics.

In my own case, I was disgusted to discover that the court seemed far more willing to accept my ex-wife’s word that I was ‘abusive’, despite their being no evidence, than they were to accept my word that she was interfering with visitation or engaging in alienating behaviour. I can understand why – it’s a lot safer and easier to prevent a dad seeing his kid ‘because he might be abusive’. But for those dads who have honestly done nothing wrong, it can feel like an uphill struggle.

As I alluded to before, the fact that these important decisions are not made by jury, but by a single human being, also is not helpful. I would imagine that the cases are often influenced by reports from social workers, agencies and so forth who are not subject to independent scrutiny.

In an ideal world there would be no divorce. Perhaps co-parenting after divorce just simply does not work.

Sigh. I don’t know. I didn’t file for my divorce, I didn’t ask to lose my child and I didn’t ever abuse my ex-wife in any way. It makes me very sad and occasionally bitter and angry that I have been an unwilling part of a process which I was powerless to stop.

In the end, it is the child that suffers most. I have been forced to move on. There is no point in spending my entire life fighting a battle I cannot win.

I have another child and I can cope with the loss of the first at great personal sorrow.
However my son can never have another father.

The mother’s story – she wanted to run but didn’t

It’s been some years since my decision not to run. I have met and instructed several lawyers since then but not all made me feel like a person and less like a process. This is an important factor in understanding why someone might not be able to trust their lawyer and feel they have no option but to run and we need to talk about this, as it goes hand in hand with misinformation about the family courts.

The law is there to protect but, all too often, a lawyer is seen as working a system instead of working for their client. This is a myth the law needs to work much harder to put right or more people, like Ellie, will feel they have no option but to run.

Although I rarely liked what my lawyer said, I learned to trust that she was working for the best outcome. It wasn’t an automatic trust. She translated the convoluted legalese into language that my permanently fearful self was better able to digest. She deconstructed the law and made it less intimidating, which was key. She understood my irrational fear of social workers yet she did not dismiss it but helped me to see what their role really was instead of the role I had assigned to them in my head of the Childcatcher from Chitty Chitty Bang Bang.

My lawyer remained patient and continually kept me informed every single step of the way, allowing me to process what I didn’t understand, often explaining on a loop. She understood that my exhausted body was permanently flooded with adrenaline, geared for threat and very, very bad at assimilating complex information so she would frequently offer a HUGE dose of calming perspective whenever something had upset me. Before each hearing, she would meet me in a café, so I would not have to go into court on my own. I believed my lawyer would fight my corner.

But what made me want to run? Things changed with pregnancy. It had started subtly enough. I found it difficult to breastfeed. He stood behind me and watched like a hawk- criticising at any given moment. It started when he told me my breast milk was inferior. That I was starving the baby. That the baby was better off having formula because you could see the ingredients on the packet. He was attentive and charming around the Health Visitors but once they had gone, he monitored everything I did, telling me I was useless because I couldn’t get the baby to sleep through the night, I couldn’t keep the house clean, I couldn’t do the most basic things that most new mothers found second nature. My struggles with parenting a newborn, the difficulties with breast feeding, baby blues and exhaustion were all cited as reasons for just how crap I was. I wasn’t a proper mother. Constant digs that I wasn’t coping with what should come naturally for a mother, led to him suggesting that if he didn’t support me, my baby would be taken from me . He told me he would prevent that from happening because he wanted my baby to have a relationship with me – even if I wasn’t a very good mother. I was at rock bottom and believed him, spiralling into an ever increasing mass of inadequacy.

He told me that I was disgusting, that I was no longer attractive and he was doing me a favour by staying with me because on my own, I would end up begging on Oxford Street. It never stopped and I started to believe that the only thing I could do, to keep my child with me, was to get away from a system that seemed hell bent on separating us.

I was too scared to speak to my GP, fearful it might set the child removal wheels in motion. In fact, I was terrified of anyone whose job it was to support and I have heard many women share the exact same fears.
I remember how grateful I was, that he would allow me the chance to be a mother!

I say all this because it worries me that people aren’t getting the help they need. I worry about Ellie and hope she has a lawyer who will take the trouble to understand her reasons for doing what she did and not demonise her.
I hope she has a judge who will understand why a mother might run and who can acknowledge that decisions like this won’t have come easily. I hope the judge asks what made her take the risk? What was going through her mind? What had she been told? What kind of support did she have around her? Which professionals could she trust? What was her relationship like with her lawyer? What was her greatest fear?
All of this even before considering whether her ex was abusive or not.

I don’t believe that many lawyers and judges are fully cognisant of just how imposing and intimidating court can be and how, when faced with the prospect of genuinely believing your child will be removed, how someone might see that their only option was to run.

For a person to have faith in the legal process and the court, the court needs to work harder to show that that faith has been earned and I cannot, hand on heart, say that it has.

21 thoughts on “Why does everyone hate the family courts? And what – if anything – can we do about it?

  1. Nick Langford

    It is extraordinarily difficult, isn’t it, to get an idea of what is really going on. Relying on the campaigning of groups like The Women’s Coalition or Fathers 4 Justice (of which I was once, regrettably, a member) will be unreliable, not because they are necessarily dishonest – though they often are – but because their vision is blinkered and they cannot see beyond their own agenda, just as most individuals with experience of the system cannot see beyond their own cases and assume every case involves the same issues (parental alienation, child abuse, paternity fraud, whatever). This is one reason we desperately need good, objective evidence from an open and accessible system. Judgments are probably the best evidence we have, but they don’t necessarily show the process by which they were arrived at, and it’s clear from the outcome of appeals that some cannot be taken at face value. Raw statistics may be more reliable, but don’t offer any detail: we might know the number of contact orders, but not the level of contact awarded, for example, and many studies fail to make important distinctions, such as that between fathers and stepfathers. Anecdotal evidence such as is presented here is valuable, but it is impossible to know how accurate or representative it is.

    Reply
    1. Sarah Phillimore Post author

      I don’t know. I am vacillating and worried. I thought that opening the courts would be the answer – but then you read the absolute tosh from the Woman’s Coalition – it doesn’t matter WHAT the courts say, WHAT findings they make, they will hold up women like Minnock and Baldwin as ‘heroines’. Publishing judgments has not helped those more extreme elements – they will, as you so rightly say, continue to hold up their individual sufferings as absolute universal experiences and they refuse to see beyond or behind them.

      I am really feeling quite bleak now about where we are going and what we can do. The family courts appear to have become the totem of all dissatisfaction with toxic relationships.

      Reply
  2. Angelo Granda

    A PARENT’S VIEW.
    I apologise ,in advance, if this criticism upsets anyone or makes them feel even more bleak but it is my honest response to the question posed in the heading to the post.

    One of the ‘systemic’ problems in child-protection is the distinct lack of ‘mediation’ between ordinary members of the public and professionals involved in it who are bound to differ in attitude . Lawyers, SW’s ,Guardians ,and LA management all have their own outlook on the matters being discussed .This has been recognised for a long, long time now ;all sorts of efforts are regularly made to correct this lack of communication and independent advocacy is actually laid down as part of the Working together frameworks but to no avail. This lack of communication contributes to not hatred but a deep mistrust. I hope this helps Nick understand why opinions are so polarised ; the lack of mediation!

    Professionals, whilst engaged in casting about all sorts of presumptious statements and critical opinions themselves can be very sensitive when criticised unless by a fellow or a judge so I apologise ,in advance ,for this honest comment. They feel above unqualified lay-persons and don’t take much notice of parent critics . Thus the law prescribes independent advocates and the Government supplies funds to organisations like the FRG. No-one wants to blame lawyers or any individual professional for anything but each one of them must accept they do play their own part in a system which is unfit for purpose and which continually represents failure for children and families subjected to its attentions.

    People have lost trust in the Family Courts because it does not follow the law related to due process such as that described above re – the simple matter of advocacy.
    Proof of the endemic failures including the illegitimate aims and policies followed by the authorities on a ‘cultural ‘ scale is continuously exposed by public enquiry and research etc. but those responsible for ensuring legitimacy never learn general lessons and apparently make no real attempt to resolve or to eliminate the failures. When victims report even criminal malpractices to them ,they repeatedly ignore their responsibilities and take no action. When i say ‘they’, i refer to Police, SW’s, Guardians, independent IRO’s , solicitors, barristers, Judges ,Doctors and even high-ranking care-home managers and worst of all archbishops. Even monks, nuns and cardinals let abuse pass. It is those in authority who act illicitly not lowly parents and ordinary SW’s. This has been evidenced time and time again through the ages ; we have a ‘cover-up’ culture which never seems to change. It goes right to the top of the tree and even if, in the event someone perhaps an archbishop or independent advocate were to attempt to intervene , it is impossible for them to override a Family Court. This is due to the discretion granted to the Court by law, apparently. The transgressors continually ignore official findings and endlessly encourage the myth that LA’s act unlawfully, remove children from home, invent false evidence, impose trauma upon them by so doing , neglect their true welfare interests throughout childhood and place them in situations where they can be physically abused by officials employed by the LA’s insisting it is in their BEST INTERESTS. A monolith of a myth! False ideology at its very worst.

    When parents use the term ‘systemic’ failure ,it is an acknowledgement that no particular lawyer or Judge is to blame personally; they are all part and parcel of the problem. They should understand that. The criticisms which follow are not personal to any of them as the Public recognise why it is so difficult for lawyers to balance conflicting duties.

    So even educated professionals and conservative parents have lost faith in the Family Courts. Not just the nutters and these people are not necessarily filled with hatred for the Court. They are well-justified!

    This is why. First of all, please will readers note that generally the Public are realistic and apart from the Family Courts ,it can be said that they show no loss of trust in our other courts. When citizens are treated justly and receive their civil and human rights to fairness and proportionality , they have no problem with the system concerned. Not many folk distrust the criminal system or the medical courts , employment tribunals and libel courts, divorce courts and so on. Alas ,the Family Courts are not fair. It is possible for the Authorities to make up evidence ( hearsay) and for individual parents to do likewise ( in private-law disputes) and it is possible for the system to take extreme actions on false bases which NO OTHER AUTHORITY OR COURT is permitted to take. Cases and concerns can be invented and the authorities take it upon itself to liquidate families in what it claims ideologically to be our best interests.

    No other Court especially an inferior civil one or Magistrate can do such a thing without ‘real’ evidence and without findings being subject to a jury. No Judge or lawyer would be given the power normally. The Family Courts destroy families ( both innocent and guilty) for no good reason . They literally ruin the lives of children , their Mums , their Dads , their Grand-parents , their brothers and sisters, their cousins, their aunts and uncles and all the rest . We are not going to genuflect to them and thank them for it! On invention very often, exaggeration very often, on the strength of false data very often and these authorities try to justify doing so on mythological grounds. This is that they do it to rescue them and improve their lives. How can Lawyers possibly be so stupid as to believe such a myth is beyond ordinary folk. It cannot be said the care-system is not disastrous for children in particular .

    This is why parents have completely lost faith with Family Courts and why ,as cases proceed, they lose faith with their own lawyers.

    Lawyers, in general, have a bad reputation, even more so than SW’s . The Public including other professionals ,who have to follow strict ethics themselves , often class them as hypocrites . Historically, they are ranked alongside tax-collectors, high priests ,money-lenders etc. It is the job of lawyers to act for the authorities, support their political imperatives and win their cases for them. To do so they have to find ways round the law ,obviously, and it is clear to all they will argue black is white and deliberately vacillate and blur lines in achieving what are illegitimate aims.

    Readers should note that in other countries there is also much inhumanity and injustice. For example, in Russia it has been possible for citizens to be given 20 years after being found guilty of treason in secret courts for offences which amount to no more than simple political dissent .All the evidence is invention. Likewise ,in Iran ,innocent students or holidaymakers can be gaoled and separated from their children on the strength of false espionage allegations. People can be arrested and even killed for nothing and this happened recently when some arabs murdered a journalist visiting an embassy. That has been covered-up and the offenders cleared. How is this relevant to our Family Courts?

    Let me explain . In all those countries , Lawyers are fully involved and have not only played their part in injustices but have been instrumental in cover-ups where they occur. They have to follow their political masters. Even the defending lawyers are at fault ,they make excuses for their colleagues, they have a conflict of interests and go along with law-breaking by keeping their objections down to the minimum. After all, tomorrow, they might be in a position where they are representing the authorities themselves. They tend not to put their own careers in danger, a natural instinct common to all of us but inappropriate for lawyers who act under oath. Hypocrisy might not be the right word to use, corruption might not be either but the Public certainly lose trust with lawyers who act in such a manner that allows for injustice and this is evident in our own Family Courts.

    The lawyers have to examine their consciences and the parts they play in Failure , make radical changes to frontline practices as per the Government’s vision for change not carry on as they are and please will they ensure the Law is followed?

    Restore Public trust in the Law and give us Justice as we are used to in other legal spheres. Set an example to third world countries , don’t stoop to their level.
    I am afraid to say all this and apologise for such a long , critical comment but I am giving my honest view.

    All comments welcome.

    Reply
    1. HelenSparkles

      Please would you post a link to the legal requirement for parent to have an independent advocate (& do you know that both social workers are considered to provide advocacy?).

      Reply
      1. Angelo Granda

        Welcome back Helen Sparkles. It always helps discussion along when we have a Social Worker contributing.
        This matter of independent advocacy has been discussed many times before. I do not have a link at hand about the legal requirements but it is stipulated in Working Together frameworks that SW’s are to inform parents of their right to it, give contact details etc. of advocates .
        I guess this is one of those matters where LA lawyers and Judges will tend to blur the lines in their own interests and make excuses .
        However ,it is oh so clearly within the spirit of the Children Act . The only actual legal requirement i can refer you to is Article 8(ECHR) which includes the stipulation that to ensure proportionality , all such guidelines ,frameworks set down by law and safeguards against injustice are to be applied scrupulously . Cases are to be conducted correctly or the only real remedy is by appeal to a higher court.Its a matter of good practice as against malpractice.
        In some London boroughs, the LA’s do facilitate the FRG and will actually finance its interventions. In others,they seem to do their best to discourage it from arranging family conferences and so on. They prefer a power imbalance and will refuse advocates permission to talk at meetings .Often they even stop the parents from seeking advocacy and any knowledge of their rights and command them to keep- away from such resources available online ( as will their own solicitors).It’s a post-code lottery.

        Reply
        1. HelenSparkles

          I’ve checked Working Together because you have mentioned it so often & couldn’t find mention of it.

          Working Together is available online, so I am sure you can provide a link? Please do, I would like to see what I am missing.

          Reply
          1. Angelo Granda

            There is no doubt about this requirement,as discussed before ‘. The issue should not be blurred or packed off into the background as superfluous. The object is that independent advocacy,intervention and mediation will assist communication between professionals and families and encourage working together . When the frameworks are followed ,it is much less likely that LA lawyers will be able to claim falsely that a parent does not understand concerns thus is unlikely to work with a care-order in time-scales.
            It’s sad that SW’s omit to follow guidelines like this one because they are so important. Please remember it in future.

          2. Sam

            29.
            “If a local authority considers that a parent carer of a disabled child (see Appendix A: Glossary) may have support needs, it must carry out an assessment under Section 17ZD of the Children Act 1989. The local authority must also carry out such an assessment if a parent carer requests one. Such an assessment must consider whether it is appropriate for the parent carer to provide, or continue to provide, care for the disabled child, in light of the parent carer’s needs and wishes.” Going off at a tangent, but as Angelo provided the link. I believe a considerable amount of pressure would be taken off the courts , if the law was adhered to about parent carers. I asked for a carers assessment and was told that such a thing did not exist ( yes I can prove that in writing and the manager that told me is now very high up in the social work world) . I was just a parent .
            I know it’s partly down to government funding, but I wish LA’s wouldn’t lie and just admit that they haven’t the resources rather than blame parents who if the statutory provision had been put in place may be able to parent successfully.

          3. Sarah Phillimore Post author

            Another part of the problem is that all these requirements are a mixture of a power and a duty. If its a DUTY the LA MUST do it. If its a POWER they have a choice if they exercise it or not and your only remedy is judicial review if you say they have failed to exercise their power reasonably. What you have quoted is prime example ‘IF’ the LA considers parent MAY have support needs…. it MUST carry out an assessment. So there is a subjective element to cross at the very outset.

            It is not therefore as simple as saying that the LA refuse to obey the law – the law is written in such a way to give them a lot of leeway/discretion into how they spend their money; which must be right. Different LAs will have different financial pressures at differing times.

            However I agree with you that more openness and honesty about the impact of lack of resources etc is sorely needed. The tendency appears to be to wish to reframe problems which are primarily due to lack of money as matters instead of legal principle. Which muddies waters for all.

          4. Angelo Granda

            Yes, but think about it. The LA’s can choose how to spend our money and they exercise their judgment as to how they carry out assessments and investigations,whether they follow guidelines and implements safeguards or not and very often they choose not to . Indeed ,it is their prerogative and the lawyers may deem that a parent has no support needs and opt not to carry out one of the assessments. It may decide not to follow any of the guidelines and often omits to follow most of them and sometimes doesn’t even talk to the parents simply saying “see you in court”. The law allows them discretion as it allows the Judge discretion, they will argue. Fair enough.
            However, the law as laid down by the High Court and the ECHR ( art 8) grants no discretion at all. High Court is quite unequivocal that removal should be ordered very rarely and never ordered unless all procedures and safeguards have been followed. Art 8 states plainly that if the procedures aren’t all followed scrupulously and all less invasive alternatives considered then the test for proportionality fails. Thus again removal should never be ordered. If the authorities choose not to spend the necessary money and time on conducted a case proportionally ,so be it ,but we should always follow the law .

          5. HelenSparkles

            Angelo – thank you, it isn’t that i don’t remember it, it is rather that I was confused by you telling me the LA should advise parents about advocacy agencies by law. If it was a statutory responsibility there would be advocacy agencies in every area and there aren’t.

            I am clearer now because you have indicated a paragraph which is about children attending conferences and being supported, which they are, and the family bringing someone if they want to which can be an advocate.

            “help prepare the child if they are attending or making representations through a third party to the conference. Give information about advocacy agencies and explain that the family may bring an advocate, friend or supporter.”

            That doesn’t detract from the sense that it would be helpful if there were advocacy agencies in every LA, there aren’t. I think families should have independent advocacy, and this is an element of pre proceedings which is helpful, they have a lawyer.

          6. Angelo Granda

            Helen, There will be several reasons ( owing to systemic deficiencies) why communications break down as regards advocacy ,mediation and fair brokerage. I think it is unfair to put the blame on SW’s totally and i, personally, would not do so.
            For example, SW’s take instructions from the LA lawyers and managers and often they will be directed not to bother with certain procedures if it has been decided behind the scenes to go straight to Court. The advice as to telling families about independent advocacy is part of what should be done if following an S47 enquiry , it is decided children are at risk; a conference should be held attended by family and the various professionals involved in the children’s care. However,if the lawyers don’t insist on that procedure then the SW’s won’t read the advice as to conferences and won’t see the parents to proffer the advice any way. Another example, if a conference is held and the SW’s do advise the parents of their right, if there are few or no services available, the parents won’t be able to find one especially if they are informed of the conference less than 48 hours before. Sometimes ,of course,even when SW’s act entirely correctly, it will be the parents fault for not taking it seriously, being to drugged up or for lacking the mental capacity to understand matters which suggests a need for advocacy going to them rather than the other way round. There are many reasons why children are failed by this system.
            If the lawyers plan court proceedings, the SW’s will advise the parents to see a Children’s legal panel solicitor and obtain advocacy but when they do so,the solicitors fail to provide it and refuse to attend conferences in order to mediate. Then again, if they do attend in some areas,they will not be permitted to talk or mediate as they should do by CS management .
            As far as due process and fairness is concerned, for all sorts of reasons,as i said, the system is in chaos . There are few,if any controls and a lack of focus. Whether this is because of LA money-saving, illegitimate aims etc, by a parents own inadequacies , by a solicitor’s failures. or by a failure of the Court office is not the point. The point is there has been a breakdown of fair process which should be reported to the Judge and it is the lawyer’s job to do it. Usually none of the three (or four) teams report it. So who is mainly at fault? You can’t blame any of them them absolutely ; they will claim a duty to the Public purse and the Court schedules thus radical changes to their general front-line practices and protocol are called for , surely , don’t you agree?

  3. Teresa

    The court system is antiquated and adversarial with he who shouts loudest or can afford the better Barrister
    The children often suffer at the alienation mud slinging which appears to now be the easiest way to force residency change regardless of the child’s wishes.
    Court orders are forced at great expense then breached my question in my case why was I taken through an expensive contact case for the father to then move abroad surely my costs should be returned.
    However my issue issue is as a single mum my daughters father despite being a millionaire gets away with paying nothing as his 2 nightclubs generate enough cash to hide under the radar so again the interest of the child is not paramount

    Reply
    1. Sarah Phillimore Post author

      That isn’t about the interests of the child not being paramount – its about the difficulty of unpicking complex financial arrangements. Rich people are very good at hiding their money. The courts do not have the time or the resources to counter this. Its not fair, its not right but it isn’t the court’s ‘fault’. What else can they do? What laws could you pass to stop rich people hiding their money? I frankly don’t think it could be done.

      Reply
    2. HelenSparkles

      Blaming the courts for the behaviour of humans is erroneous.
      You asked for an order that was breached.
      It happens, but the court gave you what you asked for, so in the simplest terms, you got what you paid for.

      Reply
  4. Diana Jordan

    Why does everyone hate the family courts? Maybe because the abusive parent usually wins.
    And of course it shouldn’t be about winning and losing in the first place, it should be about what’s best for the child so an adversarial family law system is simply unfit for purpose. It wasn’t always this bad though: I wrote a blog post last year (http://dealingwithdivorce.co.uk/whats-gone-wrong-family-court) setting out why I think things have changed so much.
    As Nick says above, we need some statistics. My hunch is that the majority of private law cases now involve some sort of abuse, be that parental alienation, other child abuse or abuse of the former partner (including false allegations). Because, as you say, everyone hates the family courts now, so who would go there if they didn’t absolutely have to? I suspect if parents are there only because one is angry or vengeful they would settle at the first hearing. If we knew how many hearings there were for each application that would give an idea of the scale of the problem – although my local court shuts down applications with indecent haste so it would not be a totally accurate indication.
    If a parent is abusive they are likely to have a personality disorder or other mental health problem. And lawyers and judges are not trained, qualified or experienced in dealing with these issues. So we’re in a big mess, and children are suffering.
    My solution would be to change to an inquisitorial family law system, with the first port of call being psychologists/psychiatrists rather than mediators/lawyers. But I don’t expect that would be popular with the lawyers.

    Reply
    1. Sarah Phillimore Post author

      More than happy to try an inquisitorial system. But intrigued why you think psychologists etc will succeed where lawyers and the court system fail? As you properly identify one of the major problems is that the most ‘abusive’ parent ‘wins’. I agree with that to this extent – the court have very, very limited tools to deal with the resolutely unreasonable and we can’t force them into therapy either.

      i agree that the adversarial system can often inflame matters. But the inquisitorial system is no magic cure all either. We will still end up with the 10% of intractable cases where one or both parents are utterly unreasonable.

      Reply
  5. Angelo Granda

    Our Family Courts don’t have the ability to settle such matters . The High Court judges themselves have said they are unable to unravel the tissue of so-called evidence which obviously is usually diametrically opposed and where speculative evidence such as SW reports ,medical reports,Guardians opinions are so brief,hazy and divergent .Most of the evidence the Courts are asked to make decisions about is so forensically uncertain and so often mere hearsay not factual at all.
    No court has the time to examine such disputes especially the Family Court which has a shortage of judges and time . It can only make summary judgments,it can’t go into matters fully and sort the wheat from the chaff.
    In my view,there are better ways of sorting out marital disputes. Mediation and advocacy between the combatants is always preferable. It is a complete waste of time and money going to a Court which admits itself it is unsuited to solve disputes. If one or other of the parents approaches a solicitor, then they should be advised in no uncertain terms to avoid the Courts and solve difficulties and arguments through advocacy,marriage guidance and mediation.
    Jaw-Jaw is always better than war war. Those Mums and Dads with no shortage of funds should ask to be put in touch with a public-access barrister experienced in mediation in marital disputes .
    Those parents without funds should access independent advocacy and mediation through the Family Rights group or some similar charitable organisation perhaps the Marriage Guidance Council. There are many effective strategies which can be used , for example, round table meetings between contestants refereed by an experienced negotiator,family conferences which include wider family and children. These methods stand a much greater chance of fostering an agreement , moderating extreme stances and bringing combatants back to reality and reasonableness.
    This may not be popular with you but arguing on the strength of statistics,predictive algorithms , ambiguous psychiatric reports and so on in any sort of court will get no-one anywhere.

    Readers should remember that if their case involves abuse by their partner ( perhaps domestic violence,threats ,coercive control etc.) their priority should be to obtain real forensic evidence of it.Take matters to the criminal system. All citizens have a right to a full investigation of circumstances and the full protection of the law from criminal offenders and that includes within domestic households.Go to the Police,complain and they will examine the facts. You can’t expect a Family Court to do it.

    I have used the word reasonableness above and naturally we will all have our own angles on it. If any men read this,even if you disagree with me ,i would be interested in your opinion. I seem to be out of kilter with much modern opinion. From what i can remember, at one time ,it was an unwritten rule of thumb ,taking into account ethics and family relations that when marriage partners separated or got divorced ,the children would ALWAYS remain with Mother at least until they were sixteen. Most children need their mothers more than father until that age. ( Most prefer Mum’s cooking to Dad’s) .It was regarded as the gentlemanly thing to do,if i might use that term and obviously would make men moderate their actions and demands also to think several times before initiating divorce ,going astray and starting adulterous relationships etc.
    I think it would help matters if the unwritten rule was formalised. Were the mother to refuse reasonable access then a man would not go to court but either wait until the child was of age or arrange family mediation and negotiate over time etc. They can still keep letter-box contact.
    I recognise there will be some circumstances where the rule may not be entirely appropriate ,for example, where we have a stay-at-home-Dad acting as main carer but the rule should still apply and the problems solved through mediation rather than a court which is toothless and unable to settle matters.
    All comments welcome.

    Reply
  6. Jon

    I think a real issue is to do with the ability to call for an investigation or not. Given the civil courts the burden of proof is different to a criminal court, particularly where there are abuse allegations, it is paramount that a proper investigation is carried out.

    In my lived experience, my allegations were ignored, and have continued to be ignored. Contact has been frustrated and in the jurisdiction my daughter now finds herself in, no-one seems to want to address the real issues.

    As has been raised in the blog, in the absence of meaningful statistics and reporting it is unavoidable that serious systemic flaws will continue to exist without any of the actors involved being empowered to enact change. It is a timeless truth, that when absolute power is wielded behind closed doors, it is inevitable that abuse will occur no matter how well meaning the people involved are in the system.

    In terms of the practical steps that can be taken:
    a) Resourcing the court system so that suitably redacted judgements are published
    b) Where abuse allegations are raised, it is imperative that they are investigated to a criminal standard of proof/evidence
    c) Train up more journalists to be able to report on Family Court proceedings
    d) Fund research to create an evidence base of outcomes from Family Court proceedings, which can allow for effective studies to be done and ultimately better enable us to choose routes that should reduce harm over the long-term.

    At the heart of the proceedings I have lived through, I have seen my human rights and those of my daughter ripped away from us. She now lives overseas, after being taken at 13 months of age to be illegally retained (aka kidnapped), I have not been able to speak with her in 11 weeks now. I refuse to normalise verbal abuse of me by having calls with her mother present. No-one in the jurisdiction they find themselves in seems to want to tackle this. I suspect similar issues occur here in the UK too. Ultimately it’s my daughter who suffers the most. I continue to heal and recover. I wouldn’t wish the pain and loss I have been forced to live through on another soul.

    Reply
  7. Amanda Wood

    Hi this a great article. I am Amanda Wood a family law Solicitor and have opened ALAS-Ltd specifically to help those such as the young lady mentioned in your article. Please don’t hesitate to call me on 07867847099.
    I have near on 15 years experience of the family Court procedure as a Solicitor and myself had the mis-fortune of entering into a relationship with a covertly narcasstic abuser who almost killed me. Having had to endure the wrath and procedure of the system, I welcome anything and anyone that also wants to assist to alter things procedurely for those abused.

    Reply

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