This is a post by Sarah Phillimore
Response of the CPR to the Family Inquiry into the courts response to domestic violence
I have commented critically on the nature of the Inquiry and the response of some such as Charlotte Proudman to what necessitates such an Inquiry – making the reasonable point that serious allegations require some kind of evidence.
I confess that I missed the initial call by a group of family lawyers into an independent review of how domestic abuse is treated in the family courts – reported here in Family Law Week on 29th May 2019 and here in the Guardian.
What happens when the starting point is ‘victim’?
The letter from the lawyers group is a detailed and clearly articulated statement of case that makes many good points. They say
There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.
This echoes the points made by Dr Proudman in her post for The Transparency Project. I commented that her experience did not reflect mine, nor that of the other family lawyers who commented via Twitter. We clearly see here the dangers of relying on one person’s subjective experience over anothers – as the tiresome but accurate cliche has it ‘anecdotes are not data’.
But there is something interesting going on. The group states:
We can say from our experience that Practice Direction 12J is often ignored or ‘nodded through’ without any proper risk assessment, leaving women and children vulnerable. Where a fact-finding hearing is listed, the victim is increasingly being told to limit the number of allegations that can be considered by the judge, meaning that there is not a full forensic and expert assessment of the risks. The impact of coercive control, emotional abuse, economic abuse and other forms of non- physical violence are routinely overlooked.
And its there in that use of the word ‘victim’. Clearly if your starting point is that anyone who makes an allegation of abuse is in fact a victim of that abuse then you are going to take a very different and probably negative view of a judge who takes another approach – as indeed every judge must. To deal with any family case on the basis that one party’s allegations are accepted as fact prior to any attempt to hear evidence about contested allegations is simply a denial of justice. It is wrong. Advising police, for example, that they must commence their investigations by ‘believing the victim’ has been rightly decried by the Henriques Report and caused much human misery and massive waste of public money.
The fact that anyone who alleges abuse is automatically a victim is embedded in the recommendations
A domestic abuse coordinator in each court appointed in order to specifically ensure that victims going through the court process are properly protected and all necessary measures are in place, to try to minimise the risk of further abuse through the court process.
And this is a real problem. It is my very clear experience, arising I accept from 20 years experience, not robust peer reviewed research, that while out and out lies made by women about abuse suffered are rare, exaggeration and re-stating history are very commonplace. Unkindness, cruelty, blinkered thinking, denial etc etc are qualities that I am afraid are demonstrated equally by men and women. I do not doubt that violence in relationships is a real and serious problem and I do not doubt that the majority of physical violence is perpetrated by men against women. But emotional abuse, ‘gas lighting’, unreasonable behaviour are common to both sexes.
Many of my cases chart a drearily predictable course. I will represent a woman who makes a large number of allegations, often over many years. There will be nothing by way of corroboration from either the police or the medical profession. There will be nothing by way of statements from family or friends. The relationship with the father has utterly broken down; often he will contribute to this by behaviour which can be measured objectively as selfish and unkind. But when the allegations encompass drugging, rape, serious physical violence and there is literally nothing before the court but the assertion of the ‘victim’ that this is is so – what do the lawyers or indeed anyone expect the courts to be able to do with all this?
The group make the following suggestion for reform:
Training for the judiciary to better understand domestic abuse, particularly the nuances and subtleties of abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.
To which I make the following reply. Judges don’t need ‘training’ to know what violence is. They live in the world. They know what violence is. What they need is evidence on which to base decisions. The family justice system simply is not set up to offer inquisitorial tribunals to unpick relationships that may span decades and involve considerable amounts of ‘nuances and subtleties’.
Conclusions – we need the data
This polarisation of the debate into women = victim and men = perpetrator and everything must then stem from that, has done real harm. We can see this in the actiivities of such groups as Fathers 4 Justice. it is easy to dismiss them as posturing idiots but the anger they feel didn’t come from no where. To simply remove men from the debate – as the Panel membership appears to do, Mr Justice Cobb as the lone exception – is to fuel this kind of anger and distrust to the detriment of us all.
It is a great shame as I agree with and think very sensible many of the recommendations made by the group of lawyers. Removal of legal aid has caused enormous problems. Findings of fact need to be held far more often and far earlier. But I don’t accept the problems in the system are due to ‘lack of understanding’ from judges about issues of violence. They stem more from the very clear understanding by judges of their duties to the Rule of Law and procedural fairness. These are concepts vital to any society worth living in.
The real problem for the FJS is that our judges do not have the infra structure to support them to make speedy and robust decisions. I accept that cases drag on and there is little by way of support either during or after the court process.
However, without establishing a firm factual foundation for investigation, any proposed ‘three month’ inquiry into all of this is clearly doomed. Because we just do not have a consensus about what is really going on. Groups support women will say false allegations of abuse are very rare, groups supporting men say entirely the opposite. Just what is the evidence about the rate of false allegations and how do we find this data?
The group of lawyers say, rightly:
There is no data collected about the implementation of Practice Direction 12J but anecdotal evidence suggests, as remarked by Lord Justice Munby in 2016, that there are very real concerns about its application in practice at different levels of the judiciary and across the country.
What the group of lawyers recommend and I heartily endorse is this:
that robust recording of decision making is made by the Judge, and collated by an appointed court recording officer so that we can begin to assess the scale of the problem and so understand how we must deal with it.
This will be the only recommendation of the Family Inquiry that will make any sense at all. In my view. Nothing will change unless it can be identified and faced.
A Parent’s View.
I agree with much of what the post -author has written. Serious allegations require some kind of ‘real’ evidence.
For criminal charges, Police have to carry out an impartial, full forensic and expert investigation of allegations,establish all available facts and make an assessment of risks. It is their duty to do so. They are then able to present ‘real’ evidence to the decision-makers.
L.A. child-protection staff are not trained or able to do so ; they are not impartial and anyway, they don’t have the power or the TIME to arrest,break down doors, carry out surveillance,confiscate evidence and sequestrate evidence. If they do take the time to question those who make allegations or the alleged perpetrators, they don’t have the skills or the equipment to question evidence fully and record statements,print them out and obtain signatures . They don’t even keep reliable minutes.
They aren’t suited to investigate and obtain ‘real’ evidence and that which they do is not tested adequately . Any value it has is relegated to little more than hearsay.
The L.A. staff also have a ‘crystal ball ‘ mentality and make no attempt to CHECK hearsay evidence and data ( such as that on computer) with which they predicate and make judgments.
‘Anecdotes are not data’. I haven’t heard that cliche before . In my opinion, anecdotes are either true or untrue.Anecdotal evidence is often put onto computer databases,however and later are disguised as facts and presented to Family Courts. Not all data is factual .
What Judges need is ALL the facts; that is the evidence on which to base decisions. The system is not set up to supply it and ,sadly, the courts themselves do not have the time or inclination to get to the truth. It’s only a civil process, after all. The Courts are only civil ones.
I think it is high time lawyers face the realities here and direct the attentions of the Public Inquiry to them. Use the same language as the criminal barristers who have been protesting.
The judicial system is broken! Even when ALL the facts are presented to the Court , the reality is that because of the legal aid problem and the shortage of court time, it is not possible to read all the evidence; pre-proceedings, the lawyers themselves don’t have the time necessary to read and test all the evidence to the high standard necessary to put their clients cases fairly. Family Courts are little more than gossip-shops dealing in hearsay evidence,predication , subjective assessments etc. and the Judges admit themselves they are unable to unravel all the lies,half-truths and stories they are presented.
Precise action suggested. a) limit the powers of Family Courts.b) demand fair trials.The funding problem has to be the priority. Hearings are useless if lawyers aren’t able to do their jobs properly. They can’t be expected to do it for nowt!
It is rightly said that ‘anecdotes are not data’ because they may not be reliable. someone’s subjective account of the system is not as good as research that takes into account many accounts and looks for similarities and differences. Of course, I think my experience over many years carries a bit more weight than mere ‘anecdote’ but I also have to accept that if I am prejudiced or make false assumptions, my ‘data’ may not be reliable.
That is why I hope the Family Inquiry Panel just make one simple recommendation – for research into these allegations that judges ‘ignore’ evidence about violence. I and a lot of other family lawyers say that isn’t true. Some family lawyers and a lot of parents disagree. We can’t square this circle by trading anecdotes. The time is long overdue for proper evidence about this so we can fix what needs to be fixed – and there is plenty. I just don’t think judges ‘ignoring’ violence is one of the problems as I have seen no evidence of this in 20 years.
I was disappointed to see that the Inquiry seems to be concentrating on the dv issue. I thought it was supposed to be addressing the Family Courts system as a whole,its protocols and so on , the severity of sanctions,proportionality,fairness ,time limits,legal funding,secrecy,bias etc.etc. in other words all those reasons which lead to a lack of public trust.
Private law cases and allegations are just a small part of an overall problem . Public Law cases are much more important because of the draconian sanctions available to the Court.Does anyone support me in saying limits should be set? At the same time,the Court can have less severe measures added to their powers. Such as fines,asbos,probation etc.?
I expect these more important issues will be sidelined. issues
Sarah, i spotted on the twitter links above someone referring to anecdata . Also it says that anecdotes help to illustrate datasets.
That is all very well if kept to decision-making as to possible support plans ,policy making etc. within social work circles but such crap should not be admissible as evidence in law courts. Especially when the data has been collected unlawfully as happens now ( see the data-protection act).
In my view, the correct word lawyers should use for such evidence is FACTITIOUS . It says everything. Meaning:-
Not definite or based on fact: apparently, supposed, alleged…. propositions based on conjecture….. maybes.
Hopefully, at the end of the Public Inquiry, the panel will announce in no uncertain terms that the judicial system is broken.
Thus it fails all the tests as to articles 6 and 8, ECHR. The ‘best interests’ of children which the Judges cite to interfere with family life are not fair and judicial.The best interests referred to are political opinion.
As a result ,sanctions imposed regularly are unlawful ones and as such article 3 is activated.
A system that is used to cover-up birth complications and possible neglect claims for damages, is not even used in 3rd world countries, yet it is used in this country, A system that is for employment and lifestyle
(including fostering) that has severely altered the face of this nation would be interesting to fast forward 20 years, the damage ir-repairable the English nation the minority????????????
Never in my lifetime did I contemplate that I would witness young couples opting to foster rather than produce their own family because of the benefits (payment to cover a mortgage etc etc) children are children no matter whose, the benefits pay for a lifestyle, who can blame them? it is a lifestyle survival option?
I am not a lawyer but I don’t think i am talking nonsense.
Lawyers should take the opinions of ordinary members of the Public into account and adapt their own legal arguments to fit ours.
After all, their first priority is the Public interest not that of the authorities at all times.
As far as article 3 is concerned , they should be very picky as to the precise meaning and wording of the law .There is no doubt in my mind that family liquidation imposes a level of mental torture upon children ( and their natural parents) . However, apparently it is argued by lawyers that torture must reach a certain level of ‘seriousness’ before article 3 can be argued. The victims of mental torture will tend to regard it more serious than lawyers who , I guess , will tend to differ; they are detached from the pain and suffering . Perhaps victims should be asked to write an impact statement.
However, it seems to be fairly well established that both the children and parents suffer degradation which is also subject to article 3 ,an absolute right.
The Law states this clause:-
QUOTE: ‘It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions ‘: UNQUOTE.
If we examine this wording, if we are picky……… the suffering imposed by Family Courts are NOT inherent or incidental to LAWFUL sanctions, in my opinion.
Why not? To answer that question, here is the definition of ‘lawful sanctions’. It comes from a dictionary.
QUOTE: Sanctions, in LAW and LEGAL definition, are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines :UNQUOTE.
The liquidation of families in child-protection does not fit that description. Neither parents or children are being punished and the Family Court does not exist to dole out penalties. No-one is on trial for a crime and no-one is officially accused of one.
The Family Court ,it seems, exists to examine professional opinions and decide what is in the best interests of children.That is entirely different. Those interests are decided on value-judgments ,on reasons of political policy and ultimately such decisions rely on the personal discretion of a judge.
The word ‘sanctions’ has two quite different meanings. We have lawful sanctions and we have sanctions endorsed for reasons of governance and control of the Public by civil authorities.
This is the type of issue which lawyers should get to grips with rather than blur the lines and turn a blind eye. I think strict lines should be set. All comments welcome.
For anyone interested,follow this link:-
https://childprotectionresource.online/article-3-echr-and-care-proceedings/
If any readers are interested at all in article 3, ECHR. ,here is another link worth looking at.
Particularly page 15 of the guide refers to sanctions.
https://web.archive.org/web/20120310193942/http://echr.coe.int/NR/rdonlyres/0B190136-F756-4679-93EC-42EEBEAD50C3/0/DG2ENHRHAND062003.pdf
Are there any circumstances when Family Court judges should ‘ignore’ evidence about d.v. and’or child abuse?
For example, when one parent presents their own complaint/allegation/account that their ex-partner has offended but that parent denies it?
If the allegations have been looked at and investigated as to their truth by Police and the C.S. and found not to have any credibility, is the evidence to be granted credibility by the civil Judge or ignored? Should allegations when fully examined and found to be false be admissible in the Family Court?
Bear in mind that the party making the allegations may have a strong motive for doing so and the motive may not be malicious. He or she may be absolutely convinced the allegations are correct; perhaps there have been arguments and rancour,disagreements, rows in the home and so on. Perhaps the issues are borderline.
It seems to me that the Judge has two choices.
1.Declare the evidence not to be credible on the strength of the full and impartial Police forensic investigation.
2. Declare that the evidence is admissible hearsay .
If the Judge makes admissible anecdotal,hearsay evidence which has no forensic credibility , fair enough but ,in my view, fair appraisals cannot follow unless each allegation is checked out in detail .We all know the Family Court does not have the time or the ability to do so given that the system is broken mainly for reasons of funding. Time is the main problem! The High Court judges have announced long ago, it is impossible to unravel the vast amount of hearsay admitted as evidence. Which is why,of course,hearsay is inadmissible in the superior courts.
Thus, in my opinion ( and i’ve said it many times,will it ever sink in) proportionality must come into play. The Family Court is an inferior one unable to examine issues to the standards necessary to ensure fairness. It should not be permitted to impose ‘sanctions’ in access of those available to the upper court . Especially any which interfere with absolute human rights. Such as capital punishment,detention for life or family liquidation.
Strict limits should be placed on Family Courts just as they are on inferior Magistrates Courts.It may be okay to issue care-orders and impose care- plans which supply support and monitoring in accordance with the Children Act but no more.
If a finding of fact is made then that ‘fact’ as determined by the court becomes ‘the truth’ for all time. It is possible to challenge findings of fact but you would need to have clear evidence and also an explanation as to why that evidence wasn’t before the court at the first hearing. The court must not ‘ignore’ any evidence. It determines what weight each piece of evidence has and how it influences the findings made. The courts may reject evidence as lacking credibility but they cannot ignore it.
When you say the Courts can reject evidence as lacking credibility, do you mean the three sets of lawyers decide together in pow-wow which evidence is credible and which to present to the judge and which not to present. Do the lawyers check years old hearsay and unlawful data set down in L.A. files meticulously in great detail? No,of course they don’t , they don’t have the time and once in Court , the Judge doesn’t either; the judiciary admits quite plainly it cannot unravel it all and separate the truth from untruth.
Thus so-called findings of fact are not findings of fact at all,are they? It is folly,utter folly for any one at all to state the findings are ‘truth’ which stand for all time and i cannot believe any rational judge or even a sensible ordinary lawyer will grant Family Court findings such esteem.
Evidence which is uncheckable is admissible and even if respondents manage to prove that some L.A. evidence is false, the rest is still admissible notwithstanding that it emanates from the same unreliable source e.g. the L.A’s unlawful , computer database.
The problem the Court is faced with , in Public law cases, is that it relies largely on the integrity of the professional evidence. It trusts the professionals have checked it for truth by full,impartial investigation carried out according to all the legal guidelines and procedures when it has not!
Their ‘evidence base’ isn’t checked and vouched for.
Next injustice ; when the respondent/s reject it ,the professionals claim he or she does not acknowledge and understand ‘concerns’.
What a way to decide cases in the explicit interests of children!
Another massive injustice is that many so-called findings of fact are made very early on at the Magistrates Court which issues I.C.O’s. The decisions are made after the bench has read applications,core-assessments,chronologies and threshold documents lodged with the Court UNDER OATH. Because they are signed and sworn by L.A. lawyers ,it is assumed the forms and documents are correct when very often they are not.
Next injustice is that all this incorrect evidence ,even that which is later rejected , is presented en-masse to independent parenting assessors and expert medics and so forth. They also assume the contents are correct . Thus their various opinions are rendered invalid, wouldn’t you think so?
The best thing i can suggest is , as much of the evidence in these cases is unreliable and it is known the Court hasn’t the time or the ability to get to the bottom of it all , that limits should be set down as to the seriousness of any sanctions imposed. Especially as there are no juries, cases are heard in secret and when appeals are so hard to make because of the funding problem.
This is just my opinion of course.
The Court and I QUOTE: determines what weight each piece of evidence has and how it influences the findings made: UNQUOTE.
I suggest that when the court has made these determinations, it would then be apposite if an independent forensic appraisal review ( F.A.R.) was conducted in respect of the specific evidence cited as being influential to the findings. It wouldn’t take as long as it does to check everything. Such F.A.R.’s are widely used in civil courts in other spheres. Indeed they were recommended by one very highly experienced commentator in these columns two or three years ago. His name escapes me.
They can’t be used that widely as I have never heard of them! The mechanism for challenging evidence is an appeal.
No. Of course I don’t mean that the lawyers collude to cherry pick evidence. That is a disgraceful suggestion. I make my client’s case. that is my job and the clear ethical expectation laid upon me.
But you do argue the credibility of evidence out-of-court and you all adapt your input accordingly. I don’t say that is ‘collusion’ at all ; it seems to be following the court protocol.
Face reality, though none of you have the time or the funding to examine the evidence thoroughly. Many barristers admit that ,due to the scantness of legal aid funding , they can’t even read the bundles fully.
Indeed, this is why only poor,vulnerable families are targeted. They can’t fund there own barristers or appeals. Let’s hope someone makes the point at the inquiry. It relates to article 6.
Thanks as always for discussing it all ,Sarah.
Sorry I maybe reacted too hastily. Yes of course there are discussions between the lawyers – the overriding objective in all cases is to deal with them efficiently and fairly. If I think the LA case is weak, I invite them to abandon at least some aspects of it. If I can see their case is strong, I will probably have conversations with my client about the need to concede certain points.
If I have not had time to read a bundle, I need to seek an adjournment as I am not properly prepared. But this doesn’t happen as barristers routinely stay up until the small hours to do the reading that they know must be done.
Can I also suggest that when the L.A. computer database viz . its ‘evidence base’ has been collected and compiled unlawfully against the strict practice rules of the Data-Protection Act that the three sets of lawyers should agree it lacks credibility en-masse? Unlawful evidence should all be inadmissible.
As an ordinary member of the Public,I would think that the right way to go.
Data subjects must be informed and given the opportunity to correct information held on them by law.
Otherwise wrong data festers and hardens on file for years. It is impossible for the Family Court to check dated input and intelligence,call every named referrer ,social worker or intelligence source to Court etc. It simply hasn’t the time or ability to do so. Many of the workers may have left the service anyway.
Or is data-protection meaningless in Family Courts? In my humble opinion , these are important points to be made at the inquiry.
Sorry, i meant ‘excess’ not ‘access’.
Slib of the beyboard!
To the post – author ,may i say thank you. I try to read pretty much all of the contributions to the CPR and recently i read your concerns somewhere ( can’t remember exactly) that the politicians were working to hijack the law and judicial system in their own political interests. This will include,of course, the various politically inspired male and female interest groups and campaigners.
There are concerns that the women’s groups already seem to have hijacked the public inquiry ,the concerns being evidenced by there only being one man on the panel.
In my opinion, the aim of the inquiry is to see that the Family Courts act in the explicit interests of children. This means not only in private law cases but also public law.
We recently looked at the reasons why the Court system fails us. It is because of its failure to insist on ‘real’ evidence and its inability to penetrate all the peripheral false or true allegations and conjecture.We discussed how the instigation of court proceedings in the first place represented failure of children either by parents themselves or by professionals. Intractable positions.
The point is that when ‘warring’ parents separate and start proceedings, it cannot be said they have not failed the children.Likewise, when L.A’s do so ,it can also be said they have failed the children and their families.
Tug -of-love parents do it arbitrarily for what they see is in the explicit interests of their children and often present factitious allegations.
L.A’s do it arbitrarily in what they see politically as the best interests of children . They often present factitious evidence.
Both try to hijack the Court system for reasons which aren’t in the explicit interests of children but their own. Sorry if i am long-winded but i am trying to make the problem as clear as i can to all readers.
The Court system must uphold the law not let itself be hijacked . The biggest problem with Public law cases ,however, is that the L.A’s not only try to hijack the law but have already hijacked the whole theory of charitable and proactive social work . In their own political interests. To me, there is no doubt about this.
All comments welcome.
Mr. Justice Cobb has form, his redrafting of PD12J included dis-applying the presumption of involvement where there were allegations of domestic abuse, a move which would have seen a Practice Direction overturning primary legislation. He doesn’t seem to understand his authority or the role of Parliament.
He was also briefly a Trustee of Gingerbread before becoming a judge. In his review of the Child Arrangement Programme he is now proposing that Gingerbread is one of the “Alliance” who would prevent cases coming to court. How on earth a single parent pressure group who seem mainly interested in getting more benefits for their members could assist with resolving parenting disputes is beyond me.
I agree that judges don’t necessarily need more training about Domestic Abuse, but we need to see what training they are currently being given by the Judicial College. This body is commissioning training from organisations such as Women’s Aid on Domestic Abuse, but the public is not allowed to see what this training is or challenge whether it meets the requirements of the Equality Act.
One last point, PD12J in its current form describes one parent (seeking contact) as having “perpetrated domestic abuse” when there are only allegations, no findings. In section 5, in the last bullet point says:
“ensure that any interim child arrangements order (i.e. considered by the court before determination of the facts, and in the absence of admission) is only made having followed the guidance in paragraphs 25–27 below.”
“In particular, the court must be satisfied that any contact ordered with a parent who has perpetrated domestic abuse does not expose the child and/or other parent to the risk of harm and is in the best interests of the child.”
This is wrong and overturns the presumption of innocence fundamental to our justice system. Later on there are repeated references to protecting the child and the parent the child is living with. The only reasonable interpretation of this is the child is living with the victim of Domestic Abuse and the parent seeking contact is the Perpetrator, from whom the child and “resident” parent should be protected. Again this creates a presumption which inevitable means the situation where children are living with an abusive parent is not covered by PD12J. There’s no protection for these children and abuse will occur!
PD12J needs scrapping and we need to start again from the position that either parent, or both parents, may be abusive, that denying contact without justification is also abusive and should be treated just as seriously.
yes I find it very worrying that there appears to be this embedded assumption now that men are perpetrators and women victims. I am particularly worried about what you say about training. We are certainly entitled to know how our judges are being trained – and by who.
The Judicial College is not subject to FOIA, so they don’t have to disclose what their training is. The issue with PD12J is not directly about men being perpetrators and women victims, it just so happens that 90% of applicants seeking contact are fathers. The concerning aspect is the “possession is 10 points of the law” approach, if you have the child living with you, you can only be the victim.
The direct discrimination is deeply embedded in Cafcass who have only ever commissioned perpetrator programmes for fathers, despite admitting there are abusive mothers and some of the same organisations who provide the programmes for men also providing programmes for women. in the last 10 years over 2,600 fathers have been sent on these courses by the courts following recommendations by Cafcass, but not one single violent mother. To this day they still don’t have any courses for violent mothers. Family Court Judges know this, how could they not? I know of one judge who told a father accused of Domestic Abuse when there were cross allegations “Cafcass have courses for men who misbehave”.
If that isn’t discrimination, I don’t know what is.
Surely, the flaw with the family justice system is that the appointed Judges are EXPECTED to decide cases at their own personal discretion in the first place. This is what they asked to do! It is what the system demands of them.The protocol grants them the power to overturn or accept any views or opinions they wish to . Even when it is known there is no ‘real’ evidence to prove allegations, they have to make a judgment as to if they might possibly be true and if they ‘probably’ occurred and who the ‘likely’ perpetrator was and they have to do it on evidence which the Courts know neither the Judges nor any of the lawyers have the time to check out and unravel thoroughly. Even when it is proven some of the evidence is false and that someone has given false testimony or acted dishonestly, the protocol instructs that they must take into account that witnesses do sometimes ‘lie’ and are not strictly impartial, nor do they always follow correct procedural guidelines; they have to assume that they do not ‘lie’ all the time and that some of what they say might be true etc. etc.
It is generally assumed that just by being in Court at all, parents have failed somewhere along the line and that there are ‘victims’ involved be they children or partners.
All the normal rules of fairness and proportionality can be thrown to the wind if the judges decide there remains an element of ‘risk of significant harm’ and if they think there might be, they are expected to decide what is in ‘the best interests’ of children.
Risk assessment and ‘best interests’ are essentially political decisions made on value judgments and personal prejudices.
Judges even have the power to overturn expert assessments and forensic evidence when they decide it is in a child’s best interests.
In my opinion, we should think more radically.
If decisions are to be taken in this way in civil,family courts we must set limits . Let them issue care-orders and approve family support plans etc. but the permanent liquidation of families or taking away human rights in any other way should be beyond their power!
As an ordinary parent,a man, a son and a father who has never had any involvement myself with separation from my wife or divorce, may i say that men and women with children should ,in duty to their children , postpone breaking – up until their youngest child reaches 16 years of age.
I do believe that it is irresponsible not to wait. When a couple marry, they make a contract. Yes ,it is true that divorce is now legally available to us all but it is not morally or spiritually right ; it is degenerate in that the pair are unable to control their manners, basic civility ,aggressive instincts, words and dislike of living together even though they know it isn’t in the paramount interests of their children to witness or experience the effects of arguments and rancour /contempt/ antagonism and scrapping .Ask the children themselves if you aren’t sure! Hold a family conference.
When a marriage fails, the children are failed.Before parting your family, ask the children what they want.
Nevertheless , it is true that divorce is commonplace and that we must make decisions as to the best interests of the children. I think that Court is not the place. I suggest conventions should be set and held to. Perhaps ,to count out Family Court legal disputes post-divorce the conventions should be laid out and determined in the marriage contract itself by law or by a mutually agreed pre-nuptial .
If a national convention were to be set as i suggest,it would have to be discussed fully first,of course , and i expect philosophers , theologians,the clergy, university professors of all kinds including child psychologists would be involved and also the common people represented by Parliamentarians and the various interest groups .
What is my recommendation and why?
When the couple marry , the man gives a child to his wife. The child comes from her womb, of course which is very fundamental. The child has come from within her; the child is part of her and there is a bond between them which can never be broken except by an act of inhumanity. The child is more hers than her husband’s and men should accept that point as a matter of principle. I agree the child also has a genetic link to his father and that ,within a marriage, the husband and wife are to be considered one and the same part of a combination. They are equal parts and both share parental responsibility and a duty to the child/children.
However,if a couple choose divorce, they are no longer one unit. Fundamentally, the child remains more the mother’s than the ex-husband’s. Father is no longer a part of her,they have split.
Children are the mother’s responsibility and more hers than the fathers. THIS IS A FACT we should all be forced to accept! Indeed , it has always been accepted until fairly recently. Why do we think babies have always been fed and changed by mothers and why is it considered that fathers can go off to work, the army etc. and do their own thing?
It is an age-old convention which in our modern society, both men and women seem set on changing for selfish reasons. We should set it down in stone.
I suggest the result would be less tension when couples do divorce.Any dispute would be counted out by the original contract or pre-nuptial.
We also have to consider children born out of wedlock ,don’t we? Again, the mother has priority.
All comments welcome, especially from readers who disagree and will enter into discussion. I , for one, recognise my opinion may be quite wrong.
May i suggest another convention to be added to the marriage contract or any pre-nuptial agreement.
This would be that the family home regardless of monetary value should remain with mother and child/children at least until the youngest is 18 years of age.In the event of any breakdown in the marriage, it should be accepted that the husband is to be the one forced to move out.
Obviously this proviso protects the interests of helpless children but it would also go some way to correcting the power imbalance between Mum and Dad.
Both this one and the one i have suggested above ,as with any pre-nuptial , will in practice have a subliminal effect on arguments,disputes ,threats and even controlling coercive behaviour and violence between parents as a matter of course.
Some essentials of any separation or divorce will be pre-ordained and both of them will think twice about such a course.
There is a danger,of course, that Mum will use both provisions as a threat against Dad unreasonably as her own weapon of war . Dad could present such ‘facts’ if they exist to the divorce court but , in general, the original mutual contract should be sustained by the divorce judge.
Other suggestions and disagreements welcome.