Thursday, April 30, 2009

Don't Fuck Up Your Children

In one of the sternest judicial warnings to warring parents I have come across, Lord Justice Wall (left) quoted from Philip Larkin in the case of R (A Child), Re [2009] EWCA Civ 358 yesterday. The case involved a highly acrimonious residence application, part of a dispute between the parents that had been on-going since they separated in 2003. Judge Everall QC at Luton County Court had found that it was no longer possible for the parents and the child to work together, and so made a residence order in favour of the paternal grandparents. The mother's appeal against that order was granted but Lord Justice Wall in the Court of Appeal gave a warning to the parents of the serious harm that their actions were causing to their child. "I hope this case has given the mother a fright. I hope it has also given the father a fright." He said. "They have come within a whisker of losing their child." In a postscript to his judgment he then quoted from Larkin's poem This Be The Verse:

They fuck you up, your mum and dad.

They may not mean to, but they do.

They fill you with the faults they had

And add some extra, just for you.

These four lines" he said "seem to me to give a clear warning to parents who, post separation, continue to fight the battles of the past, and show each other no respect."

Let us hope that more parents heed the warning.

16 comments:

  1. I must say initially, I was slightly shocked at seeing the name of this post, but in context it fits!

    Indeed, I would hope more parents would 'heed the warning' as watching way to much daytime television at the moment, a lot of the conflicts between the parents are just that; between the parents. They forget about the implications that their actions have on their children and some of them even use their children as 'pawns' in their silly games.

    *sigh*

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  2. This illustrates one of the problems with Jack Straw's half-arsed approach: it gives the judiciary the opportunity to preen and posture. These comments were not delivered in the best interests of the unfortunate child in this case; they were addressed to the press and seek to exonerate the courts at the expense of parents.

    An independent observer might wonder why the court has been unable to resolve this case after 6 years, and why the order it has come up is virtually guaranteed to perpetuate the dispute. Is there any research into the effects of protracted litigation on parents, and the tendency of applicants to forget their children (not surprising if they haven't seen them much for years) and become obsessed with litigation for its own sake? Thought not.

    I note that the Telegraph chose to illustrate this story with a nice picture of Thorpe. Another consequence of secret courts.

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  3. Off topic, but..... Happy BIRTHDAY, John!! ( I shant ask you if you are having a cake and a party, bu I will offer you a quiet swig of the pudding wine I am busy knocking back to ease the shock of my entry into Stargate,er, sorry the Pupillage Portal.I am drinking it out of the BOTTLE, but I promise I don't have Swine Flu)

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  4. Cat: Yes, I see it all the time.

    Nick: As someone who has worked within the family justice system for more than 25 years, I can tell you that far and away the biggest problem in children disputes is the attitude of the parents. I'm sure Lord Justice Wall would reject your comment. I wonder whether you are asking too much of the system - ultimately, if the parents are sufficiently determined, then surely they will thwart the best efforts of any system (at least until the system takes drastic measures, such as prison for contempt), as no system can control what they do every minute of every day? As to a lack of research, that is not, of course, a function of the courts.

    I also noticed the error in the Telegraph report!

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  5. Minx: Thank you! I suspect that I shall have a swig or two myself later...

    You have entered the Pupillage Portal? Does this mean what I hope it does?

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  6. Yes, the comments on judicical posturing to the press are valid. However, it really should be the best interest of the child that is the issue, the fact that this has dragged on for 6 years, a third of a childhood speaks volumes of the selfishness of some parents. I hope the inclusion of some choice language has given the parents something to think about, it may be all they understand especially when contrasted with the usual warbling double negatives.

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  7. Happy birthday John! I hope you will be celebrating appropriately.

    I take your points of course; if it wasn't for the attitudes of the parents the case wouldn't be in the courts at all. I am sceptical however of the courts' ability to deal with these protracted cases.

    I get a sense from your comments - here and elsewhere - and from Wall's that the people who work in the courts tend to assume it is always the attitudes of both parents which is the problem, whereas the reality is that it only takes one obstructive parent to make a family end up in court.

    Applicants (I'm being gender-neutral) go to court in good faith in order to restore contact; they never expect or intend that their case will go on for 6 years or more, and 6 years on, I concede, their attitudes to their children, their ex, and the court may well be very different. By that time even a saint will be behaving badly in court (and out of it).

    While I accept that it isn't for the courts to conduct research, it is surely necessary for judges and other professionals to understand the stresses caused by years of deeply personal litigation; this is one reason the courts need to be open so that the necessary research can be conducted.

    Even without such research the judges should be able to distinguish between a selfish parent who makes a case drag on for years, and a parent who simply wants to fulfil his responsibility to his child: it isn't rocket science. That is their job for which they accept a great deal of public and private money. If they can't do that job they should say so. A case like this demands no-nonsense mandatory mediation and enforced shared residence from the outset, not years of conflict; where parents are given the option to exclude the other they will take it. The courts should take a much more robust line on this.

    In Re D [2004] after 43 hearings Mr Justice Munby said this,

    "I simply refuse to accept that there is any equivalence – legal,
    moral, parental, or in any other respect – between a father who is
    'entrenched and rigid' in his desire to have the contact which
    everyone other than the mother thinks he should have with his
    daughter and a mother who is 'entrenched and rigid' in her
    opposition to that contact."

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  8. Unfortunately, John, if I think What You Think I Ihink You Mean I Think then I am sad to say your Thinking is incorrect.....!!
    Try saying THAT after two bottles of pudding wine!!!!

    (Actually, I've just uploaded a shedload of pupillage applications via the newly reinvented OLPAS contraption, which predictably cannot cope with the volume of applications......)

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  9. I'm sorry Wall LJ only quoted the first stanza of this brilliant poem, often underestimated because people only know the first stanza.

    The rest of the poem broadens its message into a deeply pessimistic view of life, and line 6 is I think one of Larkin's very best: a brilliant image that's angry, funny and sad all at the same time.

    I think it also helps if you realise the title, and metre, refer to Stevenson's Requiem, as Wikipedia explains.

    More poetry needed in judgments generally, I'd say.

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  10. oedipuslex: Thanks for that. I hope it has.

    Nick: Thanks. I certainly agree that it is often only one parent that is being unreasonable - I only used the plural for simplicity. As to mandatory mediation, will that actually work in many cases?

    Lawminx: Shame. Good luck with the applications though.

    Carl: Yes, it is brilliant, and I second your request for more poetry in judgments!

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  11. It is all too easy to blame both. One person can create this horrendous situation. The court allows one person to bring application after application even after a substantial final hearing and appeal. There is a restraining order s91.14 which the courts fail to use. The courts are too ready to praise both parties and in this case deride both parties, The sooner straight talking is done by the judges and right blame apportioned the better for the child.

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  12. Nick says: 'Applicants (I'm being gender-neutral) go to court in good faith in order to restore contact; they never expect or intend that their case will go on for 6 years or more.'
    Restore contact!? I say applicants with shared residence and equal contact and no hindrance to contact also go to court for 6 years or more because the courts allow it and they have a grievance against their former partner and/or the court.
    I do agree fully with 'Even without such research the judges should be able to distinguish between a selfish parent who makes a case drag on for years, and a parent who simply wants to fulfil his responsibility to his child: it isn't rocket science.'
    How do you do that without the applicant claiming human rights infringements or judges are biased? and thereby making further applications.

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  13. Nick Langford1 May 2009 at 13:40

    This is the same Lord Justice Wall who said in a judgement a few years ago, "The court system for dealing with contact disputes has serious faults. It tends to entrench parental attitudes rather than encouraging them to change. It is ill adapted to deal with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders."

    He also said in a press interview, "The court forum is a very crude mechanism for dealing with these issues. I think the general feeling now is that although the court has a place, these disputes are best dealt with out of it."

    Nor is Wall alone amongst judges in making these sort of observations.

    In this context (which hasn't changed) I'd suggest his recent comments are a little unfair.

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  14. Wow, you gotta respect the guy (who is he?) for those eyebrows!

    Size and does he dye them? Very intimidating!

    Wouldn't want one of them raised at me, would knock my head off!

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  15. family law did fuck up my children they separated my children i have the doughtier ex wife has my sons they don't enforce orders unless it suit them my ex wife charged me on violent restraining order under perjury bye saying no children involved no court orders for access when there was went to mtgambier police station they showed me the door then got other people to charge me on restraining orders to cover ex wife's perjury they let my kids leave the state just to scow me for revenue as i can prove as i have other children to other people filed 15 police complaints they find out i proved police corruption then they close the file and give me a recommendation to shut me up every time it went to court legal aid would take charge over our home still i just got screwed its just a revenue for the garment as the family order's don't hold shit as they don't enforce orders just drag it out and rip use all of and that the truth and also destroy people lives

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  16. His comments overlook the fact that there are plenty of failures in child protection by the judiciary and by Cafcass. In cases involving domestic abuse, for instance, there are routine departures from the guidelines: Failure to conduct risk assessments and failure to use a broad definition of domestic violence as defined by CASC - including emotional and psychological abuse. A high proportion of long-running cases involve domestic violence and mothers are routinely pressured to give contact in cases where it is physically unsafe for them and emotionally unsafe for their children. The presumption of contact virtually always trumps the safety issue. When the resident parent holds out against unsafe contact they are labelled entrenched and warring. Contrary to the complacency and denial apparent in some judges' attitudes, there is no equivalence between a resident parent concerned with their child's safety and an abusive parent who makes repeated court applications and uses the court process to control their ex partners and children, often with the sanction of the court. When they deal with domestic abuse cases properly, then they can talk about 'warring' parents.

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